UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

________________________________ 

 ) 

MARILYN KEEPSEAGLE, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 99-3119 (EGS) 

 ) 

TOM VILSACK, Secretary, U.S. ) 

Department of Agriculture, ) 

 ) 

 Defendant. ) 

________________________________) 

MEMORANDUM OPINION 

Pending before the Court are two motions to intervene in this 

case. Both groups of putative intervenors seek to participate in 

proceedings regarding the Court’s consideration of a pending 

motion to modify the cy pres provisions of the 2011 agreement 

that resulted in the settlement of this class action (“the 

Agreement”). First, the Choctaw Nation of Oklahoma and its 

affiliated Jones Academy Foundation (“the Choctaw Movants”) seek 

to intervene on the basis of their concern that the proposed 

modification will adversely affect their opportunity to receive 

cy pres funds. Second, a group of class members who successfully 

obtained compensation under the Agreement (calling themselves 

“the Great Plains Claimants”) seek intervention due to their 

concern that Class Counsel has failed to request a modification 

that would provide for additional payments to them. 
2 

Both motions raise questions regarding the requirements for 

intervening in post-judgment proceedings involving cy pres 

distributions. In this case, the Agreement created a cy pres 

fund to distribute any leftover funds. That portion of the 

Agreement was not objected to, and no appeal was filed from the 

Court’s approval of it. So this is not a case where parties seek 

to intervene to address whether cy pres is appropriate in the 

first instance. The narrow issue before the Court is 

modification: Should the cy pres provisions of the Agreement be 

modified and, if so, how? It is on this issue that the putative 

intervenors seek to be heard as parties. 

The Choctaw Movants desire to maintain the status quo. They 

oppose the proposed changes to the procedures for distributing 

cy pres funds. In doing so, they assert that they have a legal 

right to the cy pres funds, despite being neither members of the 

class nor otherwise connected to the Agreement. The Choctaw 

Movants lack standing, however. For one, it is highly 

speculative that the proposed modification would harm, rather 

than help, their ability to compete for a portion of the cy pres 

funds. In any event, the Choctaw Movants lack legal rights under 

the Agreement, which in no way expressed or implied an intent to 

benefit them or a class to which they belong. 

The Great Plains Claimants desire to propose an entirely 

different modification. They would remove the cy pres provisions 
3 

altogether and distribute the leftover funds to class members 

who have already completed the claims process and received 

monetary awards. The Great Plains Claimants, however, do not 

have a legally protected interest in those funds. By failing to 

object to the cy pres provisions or otherwise appeal the 

approval of the Agreement, and then participating in the claims 

process, they settled their legal claims. Accordingly, the Court 

cannot find that they retain a legal interest giving them 

standing to intervene. 

Upon consideration of the motions to intervene, the responses 

and replies thereto, the applicable law, and the entire record, 

the Court DENIES the motions.1

I. Background 

A. The Parties Reach a Settlement Agreement. 

Following over a decade of litigation, the parties to this 

class action reached a Settlement Agreement. See Agreement, ECF 

No. 621-2.2

 The Agreement created a Compensation Fund (“the 

 

1

 The Court emphasizes that this Opinion does not resolve the 

pending motion to modify the Agreement. Before any decision on 

that request will be reached, the Court must determine whether 

to direct notice of that motion to the class and hold a fairness 

hearing (or other hearing at which class members may be heard). 

The Court has directed the parties to submit briefs on this 

issue, Minute Order of October 20, 2014, and welcomes 

participation by amici curiae whose perspectives may differ from 

those of the parties. 

2

 The Agreement was modified in 2012 to alter provisions related 

to the distribution of Track A and B awards, an issue that does 
4 

Fund”) of $680,000,000 “for the benefit of the Class.” Id. ¶ 

VII.F (p. 7). The Fund was to be used in part to cover the 

attorney-fee award and individual awards to those who served as 

class representatives. See id. Primarily, however, the Fund 

would “pay Final Track A Liquidated Awards, Final Track A 

Liquidated Tax Awards, Final Track B Awards, and Debt Relief Tax 

Awards, to, or on behalf of, Class Members pursuant to the NonJudicial Claims Process.” Id.

The Agreement described how leftover funds, if any, would be 

disbursed: “In the event there is a balance remaining . . . the 

Claims Administrator shall direct any leftover funds to the Cy 

Pres Fund.” Agreement ¶ IX.F.9 (p. 37). “Class Counsel may then 

designate Cy Pres Beneficiaries to receive equal shares of the 

Cy Pres Fund.” Id. These designations “shall be for the benefit 

of Native American farmers and ranchers.” Id. The Agreement made 

eligibility as a recipient contingent upon being “recommend[ed] 

by Class Counsel and approv[ed] by the Court.” Id. Potential 

recipients were also only “non-profit organization[s], other 

than a law firm, legal services entity, or educational 

institution, that has provided agricultural, business 

 

not affect the issues currently pending before the Court. See 

Mot. to Amend, ECF No. 621 at 1; Redline Changes to Agreement, 

ECF No. 621-3. For clarity, the Court refers throughout this 

Opinion to the version of the Agreement as modified in 2012. 
5 

assistance, or advocacy services to Native American farmers 

between 1981 and [November 1, 2010].” Id. ¶ II.I (pp. 6–7). 

The Class received notice of all relevant provisions of the 

Agreement. The Claim Form provided to potential claimants 

contained a section that required the claimant to acknowledge 

that “[y]ou . . . forever and finally release USDA from any and 

all claims and causes of action that have been or could have 

been asserted against the Secretary by the proposed Class and 

the Class Members in the Case arising out of the conduct alleged 

therein.” Ex. C to Agreement, ECF No. 576-1 at 63. The 

Agreement, moreover, provided that the Class “agrees to the 

dismissal of the Case with prejudice.” Id. ¶ VI.A (p. 15).3

 The 

Claim Form also notified Track A claimants that they would be 

“eligible for . . . [a] cash award up to $50,000.” Ex. C to 

Agreement, ECF No. 576-1 at 63. The Notice that was sent to the 

Class similarly described the $50,000 maximum under Track A and 

the fact that participation would result in a resolution of the 

individual’s legal claim, and stated that “[i]f any money 

 

3

 See also id. ¶ X (pp. 51–52) (acknowledging that the Class is 

“forever barred and precluded from prosecuting[] any and all 

claims, causes of action, or requests for injunctive and/or 

monetary relief, including, but not limited to, damages, tax 

payments, debt relief, costs, attorney’s fees, expenses, and/or 

interest, whether presently known or unknown, that have been or 

could have been asserted in the Case by reason of, with respect 

to, in connection with, or which arise out of, any matters 

alleged in the Case that the Class Releasors, or any of them, 

have against the Government Releasees, or any of them”). 
6 

remains in the Settlement Fund after all payments to class 

members and expenses have been paid, then it will be donated to 

one or more organizations that have provided agricultural, 

business assistance, or advocacy services to Native Americans.” 

See Ex. I to Agreement, ECF No. 576-1 at 87, 88, 92. 

B. The Court Approves the Agreement. 

The parties first indicated to the Court that they had reached 

a settlement on October 19, 2010. See Notice of Settlement, ECF 

No. 570. On October 22, 2010, they moved for preliminary 

approval of the Agreement. See Mot. for Preliminary Approval, 

ECF No. 571. On November 1, 2010, the Court preliminarily 

approved the Agreement. See Order, ECF No. 577. The Court also 

approved the parties’ proposed notice to the Class, directed 

that any objections to the Agreement be postmarked by no later 

than February 28, 2011, and scheduled a fairness hearing for 

April 28, 2011. See id. at 3. 

On March 18, 2011, Class Counsel filed copies of thirty-five 

letters raising objections to the Agreement. See Notice, ECF No. 

585. Class Counsel filed their motion seeking final approval of 

the Agreement, which also responded to those objections, on 

April 1, 2011. See Mot. for Final Approval, ECF No. 589. Only 

two written objections related to cy pres. See id. at 62–63. One 

objector requested that his organizations be granted cy pres 

funds. See Kent Objection, ECF No. 585-2 at 7–8. Class Counsel 
7 

noted that this request was premature. See Mot. for Final 

Approval, ECF No. 589 at 62. Another objector indicated his 

preference that excess funds be used for outreach purposes and 

not be limited to groups that already existed in 1981. See 

Givens Objection, ECF No. 585-4 at 19–20. Class Counsel noted 

that this desire was entirely consistent with the existing cy 

pres provisions. See Mot. for Final Approval, ECF No. 589 at 62–

63. 

The Court held a fairness hearing on April 28, 2011. See 

Minute Entry of April 28, 2011. The issue of cy pres was not 

raised by any objector. See generally Transcript of April 28, 

2011 Fairness Hearing, ECF No. 609. After hearing from all who 

attended the fairness hearing, the Court found that the 

Agreement was fair and reasonable and approved it pursuant to 

Federal Rule of Civil Procedure 23(e). See Order, ECF No. 606. 

No appeal was filed from the Court’s approval of the Agreement. 

C. Class Counsel Seeks to Modify the Agreement. 

On August 30, 2013 Class Counsel filed a status report, 

notifying the Court that nearly all distributions from the Fund 

had been made and approximately $380,000,000 remained leftover. 

See Status Report, ECF No. 646 at 3. Class Counsel asserted that 

this “render[ed] some of the conditions for cy pres distribution 

impractical.” Id. at 5. Class Counsel also outlined a potential 

modification of the Agreement, which would have involved the 
8 

endowment of a new foundation “which could fund non-profit 

organizations serving the needs of Native American farmers and 

ranchers.” Id. at 8. The Department of Agriculture opposed this 

proposal. See Response to Status Report, ECF No. 649. 

The filing of the August 30, 2013 status report prompted the 

Choctaw Movants and the Great Plains Claimants to move to 

intervene. See Mot. to Intervene, ECF No. 647; Mot. to 

Intervene, ECF No. 654. These motions, however, sought to 

intervene in proceedings that did not yet exist. No one had 

proposed any modification to the Court and the hypothetical 

proposal outlined by Class Counsel was opposed by the defendant. 

Accordingly, the Court allowed the parties additional time to 

come to an agreement on whether and how to modify the Agreement. 

On September 24, 2014, Class Counsel filed an unopposed motion 

to modify the Agreement. See Mot. to Modify, ECF No. 709. The 

modification proposes that 10% of the Cy Pres Fund be 

distributed immediately to non-profit organizations “proposed by 

Class Counsel and approved by the Court” that must also meet the 

following criteria: 

(1) they must have “provided business assistance, 

agricultural education, technical support, or 

advocacy services to Native American farmers or 

ranchers between 1981 and November 1, 2010 to 

support and promote their continued engagement in 

agriculture”; and 

(2) they must be “either a tax-exempt organization 

described in Section 501(c)(3) of the Internal 
9 

Revenue Code . . . educational organization 

described in Section 170(b)(1)(A)(ii) of the Code; 

or an instrumentality of a state or federally 

recognized tribe, including a non-profit 

organization chartered under the tribal law of a 

state or federally recognized tribe, that furnishes 

assistance designed to further Native American 

farming or ranching activities.” 

Proposed Addendum to Agreement, ECF No. 709-2 ¶ II.A. 

The modification utilizes the remainder of the Cy Pres Fund to 

create a trust “for the purpose of distributing the cy pres 

funds” which “shall seek recognition as a non-profit 

organization under § 501(c)(3).” Id. ¶ II.B. The trust would be 

required “to distribute the funds over a period not to exceed 20 

years” and would be charged with disbursing the funds to “notfor-profit organizations that have served or will serve Native 

American farmers and ranchers.” Mot. to Modify, ECF No. 709-1 at 

1. The Trust would be authorized to make grants subject to the 

following restrictions: 

(i) “grants must be to a tax-exempt organization 

described in Section 501(c)(3) of the Code; 

educational organization described in Section 

170(b)(1)(A)(ii) of the Code; or an instrumentality 

of a state or federally recognized tribe, including 

a non-profit organization chartered under the tribal 

law of a state or federally recognized tribe, that 

furnishes assistance designed to further Native 

American farming or ranching activities”; and 

(ii) “the organization must use the funds to provide 

business assistance, agricultural education, 

technical support, and advocacy services to Native 

American farmers and ranchers, including those 

seeking to become farmers or ranchers, to support 
10 

and promote their continued engagement in 

agriculture.” 

Proposed Addendum to Agreement, ECF No. 709-2 ¶ II.B. 

Shortly before the motion to modify the Agreement was filed, 

the Great Plains Claimants filed a renewed motion to intervene. 

See Second Great Plains Mot. to Intervene, ECF No. 705. On 

September 18, 2014, the Court denied without prejudice the 

earlier motions to intervene of the Great Plains Claimants and 

the Choctaw Movants and set a schedule for the briefing of 

renewed motions to intervene. See Minute Order of September 18, 

2014. The Choctaw Movants filed a renewed motion to intervene on 

October 1, 2014. See Second Choctaw Mot. to Intervene, ECF No. 

714. Class Counsel and the defendant oppose both motions, which 

are now ripe for the Court’s consideration. 

II. Applicable Law 

A. Intervention as of Right 

Requests to intervene as of right are governed by Federal Rule 

of Civil Procedure 24(a). Rule 24(a)(2) requires the Court to 

permit intervention by any party who “claims an interest 

relating to the property or transaction that is subject of the 

action, and is so situated that disposing of the action may as a 

practical matter impair or impede the movant’s ability to 

protect its interest, unless existing parties adequately 

represent that interest.” Fed. R. Civ. P. 24(a)(2). Accordingly, 
11 

a putative intervenor’s entitlement to intervention as of right 

depends upon four factors: “‘(1) the timeliness of the motion; 

(2) whether the applicant claims an interest relating to the 

property or transaction which is the subject of the action; (3) 

whether the applicant is so situated that the disposition of the 

action may as a practical matter impair or impede the 

applicant’s ability to protect that interest; and (4) whether 

the applicant’s interest is adequately represented by the 

existing parties.’” New Hampshire v. Holder, 293 F.R.D. 1, 3–4 

(D.D.C. 2013) (quoting Fund for Animals, Inc. v. Norton, 322 

F.3d 728, 731 (D.C. Cir. 2003)). 

B. Permissive Intervention 

Requests for permissive intervention are governed by Federal 

Rule of Civil Procedure 24(b), which “states in relevant part 

that ‘[o]n timely motion, the court may permit anyone to 

intervene who . . . has a claim or defense that shares with the 

main action a common question of law or fact.’” Holder, 293 

F.R.D. at 4 (quoting Fed. R. Civ. P. 24(b)) (alterations in 

original). “When exercising its discretion, the district court 

shall consider whether the intervention will unduly delay or 

prejudice the adjudication of the rights of the original 

parties.” EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 

1045 (D.C. Cir. 1998) (quotation marks omitted). 
12 

III. The Choctaw Movants’ Request to Intervene 

The Choctaw Movants seek to intervene “for the limited purpose 

of opposing Plaintiffs’ motion to modify the cy pres provisions 

of the Settlement Agreement.” Mem. in Supp. of Mot. to 

Intervene, ECF No. 713 at 1. Because they lack standing under 

Article III and seek to raise the legal rights of others in 

violation of the doctrine of prudential standing, the Choctaw 

Movants are not entitled to intervene.

A. The Choctaw Movants May Not Intervene as of Right. 

The Choctaw Movants assert that they qualify for intervention 

as of right because they are potential beneficiaries under the 

existing cy pres provisions and thus have an interest in 

opposing any modification in order to “preserv[e] their current 

opportunity to receive a full share of those funds.” Id. at 9. 

Class Counsel asserts that “the injury about which [the Choctaw 

Movants] express[] concern—i.e., that a modification to the 

Settlement Agreement will affect the amount of money that [they] 

may receive, or the timing of such awards, as a potential cy 

pres beneficiary . . . is speculative.” Pls.’ Opp. to Mot. to 

Intervene, ECF No. 717 at 3–4. Accordingly, Class Counsel 

challenges the Choctaw Movants’ standing under Article III, as 

well as their establishment of an interest in the litigation 

under Federal Rule of Civil Procedure 24(a). The government 
13 

challenges the Choctaw Movants’ standing under Article III and 

the doctrine of prudential standing.

The Court begins with Article III standing, “a prerequisite to 

a federal court’s exercise of jurisdiction.” Nat’l Ass’n of 

Clean Water Agencies v. EPA, 734 F.3d 1115, 1160 (D.C. Cir. 

2013) (quotation marks omitted). “Prudential standing, like 

Article III standing, is a threshold, jurisdictional concept,” 

so the Court considers it as well. Deutsche Bank Nat’l Trust Co. 

v. FDIC, 717 F.3d 189, 194 n.4 (D.C. Cir. 2013). Because the 

Choctaw Movants lack standing, the Court need not—and, indeed, 

ought not—address Rule 24(a). Id. 

1. The Choctaw Movants Lack Article III Standing. 

“[A] movant seeking to intervene as of right must . . . 

demonstrate Article III standing.” In re Endangered Species Act 

Section 4 Deadline Litig., 704 F.3d 972, 976 (D.C. Cir. 2013). 

Accordingly, the Choctaw Movants “‘must establish that (1) 

[they] suffered an injury-in-fact; (2) there is a causal 

connection between the injury and the conduct complained of; and 

(3) the injury will likely be redressed by a favorable 

decision.’” Associated Builders & Contractors, Inc. v. Shiu, No. 

13-1806, 2014 WL 1100779, at *4 (D.D.C. Mar. 21, 2014) (quoting 

In re Polar Bear Endangered Species Act Listing, 627 F. Supp. 2d 

16, 24 (D.D.C. 2009)). Their injury-in-fact must be “concrete, 

particularized, and actual or imminent.” Clapper v. Amnesty 
14 

Int’l, 133 S. Ct. 1138, 1147 (2013) (quotation marks omitted). 

The requirement that an injury be imminent “cannot be stretched 

beyond its purpose, which is to ensure that the alleged injury 

is not too speculative for Article III purposes—that the injury 

is certainly impending.” Id. (quotation marks omitted). 

The Choctaw Movants claim that “[a]s intended third-party 

beneficiaries of the Agreement, members of this group of Cy Pres 

Beneficiaries have standing to enforce its terms.” Mem. in Supp. 

of Mot. to Intervene, ECF No. 713 at 10. In essence, they 

believe that the possibility that they currently qualify for and 

could be selected to receive a cy pres distribution, and the 

possibility that under the proposed modification they would 

receive a lesser distribution, a distribution later in time, or 

no distribution, creates a concrete injury-in-fact. The Court 

disagrees because any injury will arise only if a multitude of 

speculative events occur. 

It is well-established that an injury-in-fact may be 

demonstrated by the existence of an economic interest, so long 

as that interest “faces an imminent, threatened invasion—i.e., 

one that is not conjectural or speculative.” Deutsche Bank, 717 

F.3d at 193. The same is true for putative intervenors. For 

example, where a lawsuit seeking to place Mongolian wildlife on 

an endangered-species list could have “barr[ed] American hunters 

from bringing their trophies home,” the Mongolian government had 
15 

standing to intervene based on the direct negative impact that 

would result from reducing the number of hunters going to 

Mongolia and paying hunting fees to the government. Fund for 

Animals, 322 F.3d at 733. 

The Choctaw Movants have no existing involvement with the Cy 

Pres Fund. They have not received a cy pres distribution, been 

approved to receive one, or had their eligibility assessed. 

Accordingly, modification of the cy pres provision would not 

affect them in the direct ways described in the cases they cite. 

See id. (lawsuit could reduce the number of hunters continuing 

to pay fees to the putative intervenor); Utahns for Better 

Transp. v. U.S. Dep’t of Transp., 295 F.3d 1111, 1113, 1116 

(10th Cir. 2002) (lawsuit could affect existing projects on 

which putative intervenor had contracts); Natural Resources 

Defense Council, Inc. v. U.S. Nuclear Regulatory Comm’n, 578 

F.2d 1341, 1344 (10th Cir. 1978) (lawsuit could affect standards 

applicable to putative intervenor’s request for renewal of its 

uranium-processing license). 

Indeed, the Choctaw Movants are no different from any other 

organization: They could, upon satisfaction of four criteria, 

receive a cy pres distribution of an indeterminate amount. They 

would need to: (1) be a “non-profit organization, other than a 

law firm, legal services entity, or educational institution,” 

Agreement ¶ II.I (p. 6); (2) have “provided agricultural, 
16 

business assistance, or advocacy services to Native American 

farmers between 1981 and [November 1, 2010],” id.; (3) be 

“recommend[ed] by Class Counsel,” id. ¶ IX.F.9 (p. 38); and (4) 

be “approv[ed] by the Court.” Id.

The government and Class Counsel question whether the Choctaw 

Movants may ever satisfy the first two requirements. As to the 

first, the parties assert that the Jones Academy Foundation is 

likely an educational institution and that the Choctaw Nation is 

not a “non-profit organization.” See Pls.’ Opp., ECF No. 717 at 

8–9; Gov’t’s Opp., ECF No. 718 at 5–7. The Choctaw Movants 

counter that the Jones Academy Foundation is separate from the 

Jones Academy, and thus is not an educational institution, and 

that tribes are included within the term “non-profit 

organization.” Reply, ECF No. 722 at 3–5. The plaintiffs also 

assert that the Choctaw Movants put forth no evidence 

demonstrating that they “provided agricultural, business 

assistance, or advocacy services to Native American farmers 

between 1981 and [November 1, 2010].” Pls.’ Opp., ECF No. 717 at 

9. 

The Choctaw Movants correctly note that the Court must accept 

as true their factual allegations regarding the basis for 

intervention. See Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 1914 (4th ed. 2014). 

Accordingly, their allegation that they provided qualifying 
17 

assistance to Native American farmers during the relevant time 

period is accepted as true. See Mem. in Supp. of Mot. to 

Intervene, ECF No. 713 at 3. Similarly, the Court must accept 

the allegation that the Jones Academy Foundation is a separate 

entity that grants scholarships, rather than a fundraising arm 

of the Jones Academy. See id. at 4. Accordingly, the Jones 

Academy Foundation meets the first two eligibility criteria. 

The Choctaw Nation, however, cannot establish that it is 

eligible because the Agreement does not include tribal 

governments as potential recipients of cy pres distributions. 

The Agreement defines potential cy pres recipients as “nonprofit organization[s], other than a law firm, legal services 

entity, or educational institution.” Agreement ¶ II.I (p. 6). 

The Agreement does not define “non-profit organization,” but the 

Choctaw Nation is not a 501(c)(3) organization. As the Choctaw 

Movants admit, it is a government entity: “The Choctaw Nation 

possesses the attributes of a classic non-profit organization 

notwithstanding that it is also a governmental sovereign.” 

Reply, ECF No. 722 at 5 (emphasis added). The Court finds it 

difficult to believe that the parties used the term “non-profit 

organization” intending to include tribal governments without 

saying as much. Such a reading is especially difficult where the 

subject matter of the Agreement relates to Native Americans, and 

the provision at issue sought to identify a class of entities 
18 

that could be eligible for grants to benefit Native American 

farmers and ranchers. If the Agreement was intended to include 

tribes, it would have said so. 

The term “non-profit organization,” moreover, is often used in 

a way that excludes tribes, recognizing that they are distinct 

entities.4 The Choctaw Nation argues that this usage is 

inconsistent, relying on a footnote in Seminole Tribe v. 

Butterworth, 658 F.2d 310, 314 n.7 (5th Cir. Unit B 1981), which 

indicated that the fact that a tribe’s profits from gambling 

 

4 See, e.g., Blue Lake Rancheria v. United States, 653 F.3d 1112, 

1118–19 (9th Cir. 2011) (citing a House Conference Report 

regarding an amendment to the Federal Unemployment Tax Act, 

which noted that “[g]enerally, Indian tribes are not eligible 

for the reimbursement treatment allowable to nonprofit 

organizations”); Mason ex rel. Heiser v. Morrisette, 403 F.3d 

28, 31 (1st Cir. 2005) (referring to regulations, promulgated by 

the Department of Housing and Urban Development and the 

Environmental Protection Agency pursuant to 42 U.S.C. § 4852d, 

which defined the term “lessee” to include “any entity that 

enters into an agreement to lease, rent, or sublease . . . 

including . . . Indian tribes, and nonprofit organizations”); 

Am. Jewish Congress v. Corp. for Nat’l & Cmty. Serv., 323 F. 

Supp. 2d 44, 47 (D.D.C. 2004) (noting that an AmeriCorps program 

“is administered through grantees such as state and local 

governments, Indian tribes, and non-profit organizations”), 

rev’d on other grounds, 399 F.3d 351 (D.C. Cir. 2005); SEC v. 

Bear, Stearns & Co., No. 03 Civ 2937, 2004 WL 885844, at *6 

(S.D.N.Y. Mar. 25, 2004) (grant-making entity created by 

settlement of litigation made “[t]he following persons and 

entities . . . eligible to apply for . . . grants: Non-profit 

organizations and educational institutions; State agencies, 

federal and local government units, and Indian tribes”); 

Atlantic, Cape May & Parts of Burlington, Ocean & Cumberland 

Cntys. Bldg. Trades Council v. City of N. Wildwood, No. 77-2609, 

1979 WL 2018, at *6 (D.N.J. May 18, 1979) (reciting statutory 

definition of “a grantee” under a particular statute, which 

included “any state or political subdivision thereof, indian 

tribe, or private or public non-profit organization”). 
19 

activities would “be invested for the betterment of the Indian 

community” meant that the tribe “may not qualify as a charitable 

organization within the letter of the statute [at issue], [but] 

could be said to fall within the spirit of its permissive 

intent.” That is the point, however. Even though tribal 

governments operate for purposes that are similar to those of 

charitable organizations, they are distinct entities.5

Regardless of whether the Choctaw Movants satisfy those 

criteria, it is clear that they do not satisfy the third—that 

they be “recommend[ed] by Class Counsel.” Agreement ¶ IX.F.9 (p. 

38). The Agreement provides no standard for Class Counsel’s 

decision, so the Choctaw Movants could obtain a cy pres 

distribution only if Class Counsel were to exercise its 

discretion to recommend them. This is problematic for standing, 

as the Supreme Court is “reluctant to endorse standing theories 

that require guesswork as to how independent decisionmakers will 

exercise their judgment.” Clapper, 133 S. Ct. at 1150. It is 

 

5

 The Choctaw Nation briefly mentions that the Government 

Accountability Office has indicated that federal agencies 

recently awarded grants to twenty-four non-federally-recognized 

tribes because they were “organized as nonprofit organizations 

and so were ‘eligible to receive federal funding from any 

program authorized to fund nonprofits.’” Reply, ECF No. 722 at 4 

n.4 (quoting Government Accountability Office, Federal Funding 

for Non-Federally Recognized Tribes 11 (April 2012), available 

at http://www.gao.gov/products/GAO-12-348). Unlike the tribes 

described in the report, however, the Choctaw Nation is 

federally recognized. See Mem. in Supp. of Mot. to Intervene, 

ECF No. 713 at 1. 
20 

thus hypothetical at best to assert that the Agreement will 

result in any award to the Choctaw Movants. 

Even if the Choctaw Movants were to receive an award under the 

Agreement, the amount of that award is highly speculative. The 

Agreement provides for distribution in equal shares of the $380 

million Cy Pres Fund. While it is conceivable that a small 

number of qualifying organizations would be recommended by Class 

Counsel, resulting in a large distribution to the Choctaw 

Movants, it is equally conceivable that the opportunity to 

obtain an immediate share of a large Cy Pres Fund would draw 

applications from an array of eligible organizations, resulting 

in a lower award. These twin uncertainties—whether the Choctaw 

Movants would receive an award at all and, if so, how large an 

award they would receive—render it highly speculative to assert 

that the proposed modification would harm them. 

This uncertainty is compounded by uncertainty regarding the 

effect of the modification. Under the proposed modification, 

eligibility to receive a distribution of the initial 10% is 

contingent upon the discretion of Class Counsel to make 

recommendations, but the modification makes clear that tribes 

and educational institutions may qualify. See supra at 8–9. The 

modification therefore increases the likelihood that the Choctaw 

Movants qualify at the initial phase. The modification similarly 

broadens the eligibility criteria for the distribution of the 
21 

remaining 90% of the Cy Pres Fund, while also removing the 

discretionary role of Class Counsel. See supra at 9–10.

Similarly, it is far from clear that the timing and amount of 

awards that the Choctaw Movants could receive under the 

modification would differ negatively. The smaller amount of 

money and laxer eligibility criteria applicable to the initial 

10% distribution may make it likelier that Class Counsel would 

propose smaller distributions to many organizations, but the 

modification—unlike the existing Agreement—permits Class Counsel 

to scale awards to an organization’s ability. Therefore, it is 

just as likely that the Choctaw Movants would obtain a larger 

amount due to their ability to provide a scaled proposal. See 

Mem. in Supp. of Mot. to Intervene, ECF No. 713 at 3 n.1. 

Distributions from the trust could similarly be scaled in a 

manner that could benefit the Choctaw Movants. Accordingly, the 

modification may well result in a greater award for the Choctaw 

Movants. 

In view of the highly speculative nature of their claim, the 

Choctaw Movants argue that their true injury is not the loss of 

the funds, but the lost opportunity to compete for those funds. 

See Mem. in Supp. of Mot. to Intervene, ECF No. 713 at 10–11. To 

be sure, “[l]oss of an opportunity to compete for a benefit may 

be an injury in fact if it is not merely ‘illusory.’” N.J. 

Television Corp. v. FCC, 393 F.3d 219, 221 (D.C. Cir. 2004). In 
22 

light of the Choctaw Nation’s failure to qualify as a “nonprofit organization” under the Agreement, however, any 

opportunity to compete using the joint proposal on which the 

Choctaw Movants rely is illusory. In any event, the Choctaw 

Movants lose no opportunity to compete under the modification. 

The D.C. Circuit has recognized standing based on a lost 

opportunity to compete when a putative applicant is foreclosed 

from applying for the benefit due to a legal change. For 

example, in CC Distributors, Inc. v. United States, 883 F.2d 

146, 148 (D.C. Cir. 1989), a group of former contractors for the 

Department of Defense challenged the Department’s decision not 

to renew certain contracts and to bring the program “in-house.” 

The Court recognized an injury-in-fact arising out of “the loss 

of a statutorily conferred opportunity to compete for a 

contract.” Id. at 150. Similarly, in West Virginia Ass’n of 

Community Health Centers v. Heckler, 734 F.2d 1570, 1572–73, 

1576 (D.C. Cir. 1984), the Court found standing for a group of 

health centers that received funding from the Department of 

Health and Human Services to challenge a decision to reduce 

funding for their state. The Court held that “once appellants 

demonstrated that they would qualify to receive these funds, 

they need not shoulder the additional burden of demonstrating 

that they are certain to receive funding.” Id. at 1576. 
23 

The Choctaw Movants find themselves in a very different 

situation. Under the modification, they retain every ability to 

compete for the same cy pres funds. Unlike the situations where 

the D.C. Circuit has found standing based on a lost opportunity 

to compete, the competitive opportunity would neither disappear 

entirely, CC Distributors, Inc., 883 F.2d at 148, nor be reduced 

by shrinking the pot of available funds. W. Va. Ass’n of Cmty. 

Health Ctrs. v. Heckler, 734 F.2d at 1576. Indeed, as the above 

discussion demonstrates, it is highly speculative to say that 

the procedures under the modification harm rather than help the 

Choctaw Movants’ ability to compete. See supra at 15–21. 

Accordingly, even if the competitive-injury doctrine recognizes 

injuries caused by adverse changes to procedures governing a 

competition, the Choctaw Movants would not qualify because the 

procedural changes are just as likely to improve their 

competitive prospects. Accordingly, the Choctaw Movants do not 

face a “concrete, particularized, and actual or imminent” 

injury. Clapper, 133 S. Ct. at 1147 (quotation marks omitted). 

2. The Choctaw Movants Lack Prudential Standing. 

Even if the Choctaw Movants suffered a lost opportunity to 

compete, their claims suffer from a more fundamental flaw: They 

seek to assert a legal right to compete under the existing 

procedures for cy pres distribution that were created by a 

settlement (which has nothing to do with them), to be 
24 

distributed for the benefit of a class (of which they are not a 

part), to remedy claims of discrimination (which they did not 

suffer). The funds have nothing to do with the Choctaw Movants, 

yet they assert a legal right to obtain them (or, at least, to 

compete for them). In doing so, they assert rights under the 

Agreement that do not belong to them. 

By raising rights that are not theirs, the Choctaw Movants run 

afoul of the doctrine of prudential standing, which requires 

that a party seeking to intervene in proceedings regarding the 

interpretation of a contract must show that it is an intended 

beneficiary of that contract; otherwise, “the basic point 

remains that the contract does not protect their rights.” 

Deutsche Bank, 717 F.3d at 194 (emphasis in original). The 

Choctaw Movants assert that they do not actually seek to be 

heard on the interpretation of the Agreement, Reply, ECF No. 722 

at 6 n.5, but this contention is belied by their proposed brief 

in opposition to the request for modification, which raises 

disputes regarding the interpretation of various provisions of 

the Agreement. See Proposed Opp. to Mot. to Modify, ECF No. 713-

2 at 3–4.

The Supreme Court has held that “a consent decree is not 

enforceable directly or in collateral proceedings by those who 

are not parties to it even though they were intended to be 

benefited by it.” Blue Chip Stamps v. Manor Drug Stores, 421 
25 

U.S. 723, 750 (1975). The D.C. Circuit has read this to 

“prohibit only incidental third party beneficiaries from suing 

to enforce a consent decree.” Beckett v. Air Line Pilots Ass’n, 

995 F.2d 280, 288 (D.C. Cir. 1993) (alteration omitted; emphasis 

in original). “The test is not . . . only whether the 

contracting parties intended to confer a benefit directly on the 

third parties, but also whether the parties intended the third 

party to be able to sue to protect that benefit.” SEC v. 

Prudential Sec., 136 F.3d 153, 159 (D.C. Cir. 1998); see also

Doe v. District of Columbia, 958 F. Supp. 2d 178, 203 (D.D.C. 

2013); Ekwem v. Fenty, 666 F. Supp. 2d 71, 81 (D.D.C. 2009). 

“To prove intended beneficiary status, the third party must 

show that the contract reflects the express or implied intention 

of the parties to the contract to benefit the third party.” 

GECCMC 2005-C1 Plummer St. Office v. JP Morgan Chase Bank, 671 

F.3d 1027, 1033 (9th Cir. 2012) (quotation marks omitted). The 

contract, however, “need not name a beneficiary specifically or 

individually” and may instead specify a particular class of 

beneficiaries. Id. “A party has a cause of action as a thirdparty beneficiary to a contract if the contracting parties 

express an intent primarily and directly to benefit that third 

party (or a class . . . to which that third party belongs).” 

Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 

680 (11th Cir. 1999). In Vencor, for example, the Eleventh 
26 

Circuit recognized that a hospital was an intended third-party 

beneficiary of an insurance contract that stated that “[b]enefit 

payments may be paid to the doctor, hospital or to you directly 

at our discretion.” Id. Although the contract did not grant the 

hospital an absolute right to payment, the purpose of the 

contract was to cover the costs of a medical service the 

hospital had provided. 

The Choctaw Movants argue that the Agreement was similarly 

intended to create a trust of which they are intended 

beneficiaries. They assert that “[t]he Settlement Agreement 

defined a group of Cy Pres Beneficiaries among whom all of the 

leftover settlement funds were to be distributed in equal 

shares.” Mem. in Supp. of Mot. to Intervene, ECF No. 713 at 10. 

Accordingly, they claim, even though they “ultimately may or may 

not be . . . selected,” they remain beneficiaries of the trust. 

Reply, ECF No. 722 at 10. The class to which they belong, 

however, was never the intended target of the Agreement. 

It is important to remember that the funds at issue in this 

case are cy pres funds. Although the cy pres doctrine provides 

for the distribution of unclaimed settlement funds to nonparties, the purpose is to put the funds to their “‘next best 

use which is for indirect class benefit.’” Powell v. Ga.-Pacific 

Corp., 843 F. Supp. 491, 497 (W.D. Ark. 1994) (quoting Newberg 

on Class Actions § 11:20 (3d ed. 1992) (emphasis added). “The 
27 

object of applying the funds to the ‘next best’ class is to 

parallel the intended use of the funds as nearly as possible by 

maximizing the number of plaintiffs compensated.” Democratic 

Cent. Comm. v. Wash. Metro. Area Transit Comm’n, 84 F.3d 451, 

455 (D.C. Cir. 1996) (emphasis added). Accordingly, the point of 

cy pres is to benefit the class as closely as possible, using 

third-parties only as vehicles for providing that benefit to the 

class when direct distribution is infeasible. This is nothing 

like Vencor, where the contract was intended to provide payment 

for services rendered by the third party. 

The Agreement confirms that its purpose was geared toward the 

Class. It settled claims of individuals who allegedly suffered 

discrimination at the hands of the Department of Agriculture. In 

doing so, it created a Fund “for the benefit of the class,” 

provided a process for the distribution of that Fund to class 

members, and created a Cy Pres Fund in the event that the full 

amount of funds set aside to pay those claims was not exhausted. 

The Cy Pres Fund was specifically intended “for the benefit of 

Native American farmers and ranchers.” Agreement ¶ IX.F.9 (p. 

33). The cy pres distribution criteria further this purpose by 

guiding Class Counsel to organizations that could use the money 

to benefit the class. Id. ¶ II.I (p. 3). Nothing in the 

Agreement contradicts this statement or hints that it was 
28 

actually intended to provide a legally enforceable benefit to 

unrelated organizations. 

The cases relied on by the Choctaw Movants, by contrast, all 

permitted individuals who were direct beneficiaries of a trust 

to sue to enforce the terms of that trust. See Beckett, 995 F.2d 

at 281 (consent decree that obligated employer to make pensionrelated payments into a trust fund to be administered by the 

airline pilots’ union could be enforced by former pilots who 

claimed that the union failed to grant them required payments 

because the consent decree created a trust for the benefit of 

all pilots); Price v. Akaka, 928 F.2d 824, 825 (9th Cir. 1990) 

(Native Hawaiian seeking to enforce terms of trust holding 

public lands “for the betterment of the conditions of native 

Hawaiians”). Those cases did not involve third parties seeking 

funds held for someone else’s benefit. 

Finally, the Choctaw Movants rely on the Agreement’s use of 

the term “beneficiary” to describe the organizations that may 

receive a cy pres distribution, but the use of that word does 

not trump the purposes of the cy pres doctrine and the 

Agreement’s expressed intent to benefit class members. The mere 

fact that those selected to be vehicles for distributing the 

funds to the class’s benefit may themselves “benefit” from that 

selection does not make them intended beneficiaries with legally 

enforceable rights. Because the Choctaw Movants lack such 
29 

rights, they lack prudential standing to intervene to enforce 

their preferred interpretation of the Agreement. 

B. The Choctaw Movants May Not Intervene Permissively. 

The Choctaw Movants’ lack of standing also dooms their request 

for permissive intervention. The D.C. Circuit previously 

indicated that it remained an open question whether standing is 

required of a party seeking permissive intervention. See, e.g.,

Endangered Species Act Litig., 704 F.3d at 980. The Circuit 

recently settled that question, however. In Deutsche Bank 

National Trust Co. v. FDIC, the D.C. Circuit rejected the 

argument that a party seeking to intervene as of right as a 

defendant need not demonstrate standing, noting that “[i]t is 

therefore circuit law that intervenors must demonstrate Article 

III standing.” 717 F.3d at 193. Judge Silberman (who authored 

the unanimous opinion) wrote separately to emphasize: 

If we were authorized to dispense with the standing 

requirement for a defendant-intervenor, then any 

organization or individual with only a philosophic 

identification with a defendant—or a concern with a 

possible unfavorable precedent—could attempt to 

intervene and influence the course of litigation. To 

be sure, parties seeking intervention as of right 

would still need to meet the specific standards 

articulated in Rule 24(a), but district courts have 

discretion to grant permissive intervention under Rule 

24(b), which requires only that a party have a claim 

or defense that shares with the main action a common 

question of law or fact. Opening participation to 

parties without standing would be quite troublesome in 

direct review in the court of appeals, but intolerable 

at the district court level, where individual parties 

have substantial power to direct the flow of 
30 

litigation and affect settlement negotiation. Our rule 

requiring all intervenors to demonstrate Article III 

standing prudently guards against this possibility. 

Id. at 195–96 (quotations marks and citations omitted). 

Accordingly, the Choctaw Movants’ lack of standing renders them 

ineligible for permissive intervention.6

IV. The Great Plains Claimants’ Request for Intervention 

The Great Plains Claimants seek to intervene “to ensure that 

their interests are adequately represented in the context of any 

amendments to the Settlement Agreement.” Mot. to Intervene, ECF 

No. 705-1 at 1. They assert that they would like Class Counsel 

to seek to modify the Agreement to provide for additional 

payments to successful claimants, but that Class Counsel has 

failed to do so and has failed to keep them apprised of relevant 

case developments. See id. at 3–5. Because they lack Article III 

standing, the Great Plains Claimants are not entitled to 

intervene.

A. The Great Plains Claimants May Not Intervene as of Right. 

As discussed above, putative intervenors “must . . . 

demonstrate Article III standing,” Endangered Species Act 

Litig., 704 F.3d at 976, by “‘establish[ing] that (1) [they] 

suffered an injury-in-fact; (2) there is a causal connection 

 

6

 The Choctaw Movants also did not dispute the government’s 

argument that permissive intervenors must demonstrate standing, 

thereby conceding the argument. See, e.g., Inst. for Pol’y 

Studies v. U.S. Cent. Intelligence Agency, 246 F.R.D. 380, 386 

n.5 (D.D.C. 2007). 
31 

between the injury and the conduct complained of; and (3) the 

injury will likely be redressed by a favorable decision.’” 

Associated Builders & Contractors, 2014 WL 1100779, at *4 

(quoting Polar Bear Listing, 627 F. Supp. 2d at 24. 

The Great Plains Claimants assert that “[a]s successful 

Keepseagle class members, the Great Plains Claimants are direct 

beneficiaries of the Settlement Agreement” and therefore “have 

legally protected interests in the distribution of the Cy Pres 

Fund.” Mot. to Intervene, ECF No. 705-1 at 16–17. It is 

undisputed that none of the Great Plains Claimants objected to 

the cy pres provisions of the Agreement, and that no one 

appealed the Court’s approval of the Agreement.7

 It is also 

undisputed that the Great Plains Claimants participated in the 

Agreement’s procedures for filing a claim under Track A. That 

process included an affirmative choice to proceed under Track A, 

knowing that the maximum possible cash award was $50,000. See 

 

7

 For this reason, the Court cannot accept assertions that the 

Great Plains Claimants “never agreed to participate in a 

settlement which provides that a majority of the funds would not 

go to class members” and that “[h]ad the original Settlement 

Agreement contained such provisions, many would have objected 

and/or opted out.” Reply, ECF No. 723 at 8; see also id. at 14 

(citing Knight Declaration, ECF No. 723-1 ¶¶ 13–14; Petersen 

Declaration, ECF No. 723-2 ¶¶ 13–14). The Great Plains 

Claimants—like Class Counsel and the government—may not have 

anticipated that so few claimants would come forward and 

therefore may not have expected the Cy Pres Fund to be as large 

as it is. All of the provisions creating this result, however, 

were part of the proposed Agreement, of which the Great Plains 

Claimants received notice and to which they did not object. 
32 

Ex. C to Agreement, ECF No. 576-1 at 63. They also acknowledged 

that they were “forever and finally releas[ing] USDA from any 

and all claims and causes of action that have been or could have 

been asserted . . . in the Case arising out of the conduct 

alleged therein.” Id. The notice initially provided to the Class 

reiterated these points and also made clear that all unclaimed 

funds would be “donated to one or more organizations that have 

provided agricultural, business assistance, or advocacy services 

to Native Americans.” See Ex. I to Agreement, ECF No. 576-1 at 

87, 88, 92. Accordingly, the Great Plains Claimants, with 

notice, have intentionally satisfied their legal claims. 

It is well-established that this extinguishes a legal claim. 

“An agreement between the parties dismissing all claims is the 

equivalent of a decision on the merits and thus claims settled 

by agreement are barred by res judicata.” Chandler v. Bernanke, 

531 F. Supp. 2d 193, 197 (D.D.C. 2008). Indeed, as the Great 

Plains Claimants appeared to acknowledge, Reply, ECF No. 723 at 

7, the Agreement binds class members who did not opt out. Once 

the Agreement was approved and no appeal was filed, the claims 

of class members who did not opt out were extinguished, in 

accordance with the Agreement’s terms. See Agreement ¶¶ VI.A (p. 

15), X (pp. 51–52). 

This conclusion is entirely consistent with the weight of 

precedent regarding unclaimed settlement funds. “In approaching 
33 

the question of the appropriate distribution of such funds, 

various courts have determined that ‘neither the class members 

nor the settling defendants have any legal right to unclaimed or 

excess funds.’” Diamond Chem. Co. v. Akzo Nobel Chems. B.V., 517 

F. Supp. 2d 212, 217 (D.D.C. 2007) (quoting Powell, 843 F. Supp. 

at 495, aff’d, 119 F.3d 703, 706 (8th Cir. 1997) (“neither party 

has a legal right to the unclaimed funds”)); see also Wilson v. 

Southwest Airlines, 880 F.2d 807, 811 (5th Cir. 1989) (“We agree 

with the district court that . . . none of the parties in this 

case has a legal right to the balance of the fund.”); In re 

Folding Carton Antitrust Litig., 744 F.2d 1252, 1254 (7th Cir. 

1984) (“we agree that neither the plaintiff class nor the 

settling defendants have any right to the reserve fund”); In re 

Motorsports Merchandise Antitrust Litig., 160 F. Supp. 2d 1392, 

1393 (N.D. Ga. 2001) (“Neither the class members nor the 

settling defendants have any legal right to unclaimed or excess 

funds.”) (alteration and quotation marks omitted). Once a 

settlement agreement is final, “all class members who presented 

their claims received the full payment due them, and those who 

did not present claims have waived their legal right to do so. 

Thus, the class has no further legal rights in the fund.” 

Wilson, 880 F.2d at 811–12. 

Professor Rubenstein echoes this position in the most recent 

edition of Newberg on Class Actions. Although there is some 
34 

dispute over the property status of unclaimed funds, “most 

courts start from the proposition that neither the plaintiff 

class nor the settling defendants have any right to the 

unclaimed or excess funds.” Newberg on Class Actions § 12:28 

(5th ed. 2014) (quotation marks omitted). The argument that 

unclaimed settlement funds are property of the class is 

problematic, he posits: 

The premise that the recovery fund is the property of 

the plaintiff class is not quite right because the 

settlement fund does not truly belong to the class as 

a whole, but rather to the class members individually. 

When a class member does not claim her share of the 

fund, it is not at all obvious that her share 

therefore belongs to the other class members. If, for 

example, the government distributed a tax refund to a 

group of taxpayers but some did not cash their checks, 

no one would seriously propose that the unclaimed 

funds are the property of, and should be distributed 

pro rata to, those other citizens who received tax 

refunds. . . . Additionally, an individual’s presence 

as a class member in a class action hardly expands her 

property rights to include the property of the other 

class members. Even if it is the case that the 

claiming class members have received less than the 

full value of their claims by the settlement, that 

fact does not magically make the nonclaimaints’ 

property theirs. 

Id. § 12:30. 

The Great Plains Claimants have received the full value of 

their claims pursuant to the Agreement and thereby fully 

satisfied those legal claims. The fact that their claims, if 

ultimately successful at trial, could have resulted in higher 
35 

damages awards changes nothing. As the Court emphasized during 

the April 28, 2011 fairness hearing: 

There are risks in litigation as we all know. This 

case could have gone to trial, presumably, and the 

Plaintiffs not recovered anything. Class certification 

was not a foregone conclusion, and you’re aware, I’m 

sure, of other cases in this court, not before this 

judge, wherein class certification issues were not as 

successful as the class members would have liked. . . 

. So there were no guarantees that this case went 

forward at all. 

Transcript of April 28, 2011 Fairness Hearing, ECF No. 609 at 

24:9–18. Settlements, by definition, are compromises in which 

plaintiffs accept less than their full claim of damages in 

exchange for avoiding the risks of further proceedings and 

trial. The Great Plains Claimants accepted that trade off, 

consented to an Agreement that provided for a maximum award of 

$50,000, and recovered that amount. They cannot now claim a 

property right in funds that were intended to pay the claims of 

other class members who did not claim their award. 

The Court is not persuaded by their arguments to the contrary, 

which rely on two distinguishable cases: 

First, they correctly note the Fifth Circuit’s recent 

statement that “settlement-fund proceeds . . . belong solely to 

the class members.” Klier v. Elf Atochem N. Am., 658 F.3d 468, 

474 (5th Cir. 2011). That case, however, “[wa]s not a case where 

the settlement agreement itself provide[d] that residual funds 

shall be distributed via cy pres,” and the Fifth Circuit noted 
36 

that “the relevant provisions” of the Agreement “shape the 

property interest created by the Agreement.” Id. at 476, 478. 

The decision, moreover, related to the use of cy pres even 

though the excess funds could have been used to pay claims that 

were due to another subclass under the Agreement. Id. at 478. 

Here, any property interest that was shaped or created by the 

Agreement was limited by the Agreement’s provisions making the 

Track A maximum $50,000, and providing for a cy pres 

distribution of leftover funds from the outset.8

Second, the Great Plains Claimants rely on the Third Circuit’s 

recent decision in In re Baby Products Antitrust Litigation, 708 

F.3d 163 (3d Cir. 2013). That decision addressed a claim by a 

class member (who objected to the settlement agreement during a 

fairness hearing and filed an appeal) that “the settlement 

notice was inadequate because it did not identify the cy pres 

recipients who will receive excess settlement funds.” Id. at 

180. The Court held that the notice (which was issued before the 

 

8 Devlin v. Scardelletti, 536 U.S. 1 (2002), on which the Choctaw 

Movants rely for the proposition that members of a class have 

interests in a settlement sufficient to support Article III 

standing, is even more distinct. That case addressed the claim 

of a class member who objected to a proposed settlement at a 

fairness hearing, and sought to appeal the district court’s 

approval of the settlement. See id. at 4–6. The Supreme Court 

held “that this issue does not implicate the jurisdiction of the 

courts under Article III of the Constitution” because “[a]s a 

member of the retiree class, petitioner has an interest in the 

settlement.” Id. at 6. The Great Plains Claimants, by contrast, 

never objected or appealed and they have already had their legal 

claims fully resolved. 
37 

identity of the cy pres recipient was known) was sufficient, and 

noted without deciding that “to the extent putative class 

members have a property interest in the unclaimed funds and 

object to the cy pres recipients selected, they may typically 

intervene in the lawsuit for purposes of appealing an eventual 

order directing a cy pres distribution.” Id. at 181. To the 

extent that tentative statement may be read to grant property 

rights in leftover funds to class members who participate 

successfully in a settlement agreement’s claims process, receive 

the maximum award permitted by the settlement agreement, and who 

neither object to nor appeal from the entry of that settlement 

agreement, the Court disagrees. See supra at 32–35. 

Because the Great Plains Claimants retain no legal claim to 

the fund, their desire that the Agreement be modified to provide 

for additional payments to previously successful class members, 

while understandable, is not a legal interest that faces 

imminent invasion. Accordingly, they lack standing.9

 

9

 The Court also agrees with the government’s contention that any 

injury the Great Plains Claimants may suffer by virtue of not 

receiving additional payments beyond those received to satisfy 

their claims is not causally linked to an action of the 

defendant in this case; rather, it is a product of their assent 

to and participation in the Agreement. See B’hood of Locomotive 

Engs. & Trainmen v. Surface Transp. Bd., 457 F.3d 24, 28 (D.C. 

Cir. 2006). 
38 

B. The Great Plains Claimants May Not Intervene 

Permissively. 

As discussed in Part III.B, supra, the same standing 

requirements applicable to intervention as of right apply to 

permissive intervention. Like the Choctaw Movants, moreover, the 

Great Plains Claimants have not attempted to argue otherwise. 

See supra at 30 n.6 (noting that the Choctaw Movants conceded 

that standing was required for permissive intervention by 

failing to oppose the government’s argument). Accordingly, their 

lack of standing precludes them from obtaining permissive 

intervention. 

C. The Great Plains Claimants May File an Amicus Curiae

Brief. 

The Great Plains Claimants request, in the alternative, that 

the Court grant them leave to participate in the settlementmodification proceedings as amici curiae. See Mot. to Intervene, 

ECF No. 705-1 at 21. Neither party objects to this request. 

Moreover, the Great Plains Claimants rightly note that this 

Court has broad discretion to permit participation of amici 

especially where, as here, the proposed amici may provide a 

unique perspective on issues pending before the Court. See id. 

Accordingly, the Great Plains Claimants may enter their 

appearance as amici curiae. 
39 

V. Conclusion 

For the foregoing reasons, the motions to intervene filed by 

the Choctaw Nation of Oklahoma and the Jones Academy Foundation, 

and by the Great Plains Claimants are DENIED. The request of the 

Great Plains Claimants to participate in the pending settlementmodification proceedings as amici curiae is GRANTED. An 

appropriate Order accompanies this Memorandum Opinion. 

SO ORDERED. 

 Signed: Emmet G. Sullivan 

 United States District Judge 

 November 7, 2014