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

This case places the Court in the unenviable position of 

enforcing a five-year-old bargain that nobody likes. The bargain 

at issue is not any old contract; rather, it is a settlement 

agreement that resolved a major civil-rights class action, was 

approved by the Court in accordance with the Federal Rules of 

Civil Procedure, and was made final by that approval and the 

lack of appeal therefrom. The story that led this case to its 

current posture is as unique as it is disappointing. In brief, 

the $680,000,000 in damages that were awarded under the 

settlement agreement was intended to compensate Native American 

farmers who alleged that the United States Department of 

Agriculture discriminated against them personally. The agreement 

created a claims process for distributing this money, but the 

claims process failed and $380,000,000 remains undistributed. 
2

The scope of this failure is monumental; the reasons for it 

remain unclear.

The agreement was finalized before the claims process began, 

so no one anticipated such a large amount of excess funds. But 

the parties did anticipate that some money might be leftover, so 

they included in their settlement agreement a cy pres provision, 

which directs that all leftover funds be distributed in equal 

shares to a group of charities that serve Native American 

farmers and ranchers that were to be chosen by Class Counsel. 

Now, faced with the prospect of over half of the plaintiffs’ 

damages being distributed in equal shares to charities nominated 

by Class Counsel, many class members regret that part of their 

agreement and want to change it. Principal among those class 

members is Marilyn Keepseagle, who has asked the Court to modify 

the agreement to create a renewed claims process to distribute 

more of the money to individual class members. Others, including 

Class Counsel, ask to modify only the charitable-distribution 

procedures to accommodate the large amount of money to be 

distributed by: (1) allowing it to be distributed in unequal 

shares scaled to an organization’s capacity; (2) spreading the 

distribution over twenty years; and (3) placing distribution 

decisions in the hands of a trust run by Native American 

leaders.
3

Unless there is a legal basis for this Court to modify the 

agreement, the Court must enforce the agreement reached in 2011. 

Doing so would frustrate all parties’ goals. Contrary to the 

Keepseagles’s wishes, the funds would remain entirely for 

charitable distribution. Contrary to the goals of Class Counsel

and the government, that charitable distribution would be 

pursuant to the arguably inefficient procedures that were 

designed to handle a much smaller amount of money. This result 

could be viewed as both unjust and inefficient. Over half of the 

class’s damages would be distributed to third parties, despite 

the relative ease with which class members could be identified, 

the claims process reopened, and previously successful claimants 

permitted to prove that they suffered damages in excess of the 

compensation they have obtained. 

The Court’s role is not to craft a new compromise based upon 

the Court’s own views about the appropriate amount of 

compensation due to class members who alleged decades-long, and, 

in many cases, life-altering discrimination at the hands of 

their federal government. Nor is it to create a preferred 

process for distributing the funds to charity. Before the Court 

is a simple question: Are any of the narrow circumstances in 

which a court’s final judgment may be modified present in this 

case?
4

The avenues proposed by the parties for unilateral 

modification—Class Counsel’s attempt to realign the charitabledistribution procedures pursuant to Federal Rule of Civil 

Procedure 60(b)(5), and the Keepseagles’s attempt to reopen the 

claims process pursuant to the legal doctrine governing 

unclaimed funds as well as Rules 60(b)(5) and 60(b)(6)—are 

simply inapplicable, as the Court discusses in detail in Parts 

II.A and II.B of this Opinion. Absent a way to modify the 

agreement unilaterally, the parties must come to a consensus 

themselves, which their settlement agreement defines as “the 

written agreement of the Parties.” As the Court finds in Part 

II.C, this language requires more than the agreement of Class 

Counsel and the government, over the objection of at least one 

class representative and many class members, which is what is 

presented by Class Counsel’s proposed modification. It also 

requires more than an alignment between Class Counsel, the class 

representatives, and members of the class, who would all prefer 

that the money be distributed directly to class members. Because 

there is no consensus within the meaning of the agreement, and 

because the parties’ proposals for unilateral modification are 

legally insufficient, the Court DENIES both pending motions for 

modification of the settlement agreement. The Court expects that 

there will be review of the legal conclusions reached in this 

Opinion by appellate courts. Upon resolution of appellate 
5

proceedings, if this Court’s legal conclusions are undisturbed, 

the Court will grant the Parties a period of time to negotiate 

an agreement that they may jointly present to the Court.

* * *

Before beginning its legal analysis, the Court makes some 

observations regarding the government’s arguments. The 

government has chosen to oppose any modification of the 

settlement agreement that would alter the cy pres nature of the 

funds in any way, based upon concerns that class members might 

receive a “windfall” in excess of the damages they suffered and 

that reopening the claims process would undermine the 

government’s interest in the finality of court judgments.

The Executive Branch’s narrow position today stands in stark 

contrast to the messages of respect and reconciliation it 

expressed upon the settlement of this case. Upon announcement of 

the settlement in 2010, the President issued the following 

statement:

Today, the Department of Agriculture and the 

Department of Justice announced a settlement agreement 

with the plaintiffs in the Keepseagle class action 

lawsuit. This suit was originally filed in 1999 by 

Native American farmers alleging discrimination in 

access to and participation in USDA’s farm loan 

programs. With today’s agreement, we take an important 

step forward in remedying USDA’s unfortunate civil 

rights history. 

I applaud Secretary Vilsack and Attorney General 

Holder for their hard work to reach this settlement–a 

settlement that helps strengthen the nation to nation 
6

relationship and underscores the federal government’s 

commitment to treat all citizens fairly.

Statement by the President on Settlement Agreement in the Native 

American Farmers Lawsuit Against USDA, White House Office of the 

Press Secretary (Oct. 19, 2010), https://www.whitehouse.gov/thepress-office/2010/10/19/statement-president-settlementagreement-native-american-farmers-lawsuit. A statement issued by 

Secretary Vilsack and then-Attorney General Holder expressed 

similar sentiments:

“Today’s settlement can never undo wrongs that Native 

Americans may have experienced in past decades, but 

combined with the actions we at USDA are taking to 

address such wrongs, the settlement will provide some 

measure of relief to those alleging discrimination,” 

Vilsack said. “The Obama Administration is committed 

to closing the chapter on an unfortunate civil rights 

history at USDA and working to ensure our customers 

and employees are treated justly and equally.”

“The settlement announced today will allow USDA and 

the Native American farmers involved in the lawsuit to 

move forward and focus on the future,” said Attorney 

General Holder.

* * *

Under Secretary Vilsack’s leadership, USDA is working 

to address past civil rights complaints and today’s 

announcement is a major step in that effort. The 

Secretary and his leadership team are committed to 

addressing allegations of discrimination, and shortly 

after he took office he sent a memo to all USDA 

employees calling for “a new era of civil rights” for 

the Department.

Agriculture Secretary Vilsack and Attorney General Holder 

Announce Settlement Agreement with Native American Farmers Who 

Claim to Have Faced Discrimination by USDA in Past Decades, USDA 
7

Office of Communications (Oct. 19, 2010), http://www.usda.gov/

wps/portal/usda/usdamediafb?contentid=2010/10/0539.xml&printable

=true&contentidonly=true.

The Court is sympathetic to the government’s legal argument

that the settlement is a final judgment and that respect for 

final judgments is a cornerstone of our legal system. Indeed, 

that argument ultimately binds the Court. That is the Court’s 

role: To resolve legal disputes, not make policy decisions, even 

when the law dictates a result the Court may disfavor. The 

Executive Branch, however, has a broader role: To defend itself 

in litigation, for sure, but also to seek justice on a broader 

stage. It is for that reason, the Court presumes, that the 

government sometimes settles cases that implicate deep-seated 

interests of justice, even where the government’s legal defense

may be relatively strong. 

This case was not an abstract legal dispute. It was a major 

class-action seeking to remedy what many felt was the latest 

chapter in the federal government’s sordid history of 

mistreating Native Americans. The statements of the President, 

Secretary Vilsack, and then-Attorney General Holder make clear 

that the government in 2010 understood this dimension of the 

case. The government’s position lately evinces a failure to 

grapple with that dimension. The government would do well to 

remove its legalistic blinders.
8

The result is that $380,000,000 of taxpayer funds is set to be 

distributed inefficiently to third-party groups that had no 

legal claim against the government. Although a $380,000,000 

donation by the federal government to charities serving Native 

American farmers and ranchers might well be in the public 

interest, the Court doubts that the judgment fund from which 

this money came was intended to serve such a purpose. The public 

would do well to ask why $380,000,000 is being spent in such a 

manner.

Because these considerations move beyond the realm of the law 

and into the realm of politics and policy, this Court can only 

make observations, bound as it is to the final judgment in this 

case and the narrow legal doctrines for modifying a final 

judgment. This Court has confronted an analogous situation 

before and its words are equally applicable here: “Were this 

Court empowered to judge by its sense of justice, the heartbreaking accounts of” life-altering discrimination suffered by 

members of the class at the hands of their federal government 

“would be more than sufficient justification for granting all 

the relief that they request.” Roeder v. Islamic Republic of 

Iran, 195 F. Supp. 2d 140, 145 (D.D.C. 2002). As in Roeder, 

however, the authority to grant such relief lies with another 

branch of government and “[t]he political considerations that 
9

must be balanced prior to such a decision are beyond both the 

expertise and the mandate of this Court.” Id.

I. Background

A. The Case is Hard Fought from 1999 to 2010.

On November 24, 1999, the plaintiffs filed this lawsuit 

against the Secretary of Agriculture on behalf of a class of 

Native American farmers and ranchers who applied to the United 

States Department of Agriculture’s farm loan and benefits 

programs between January 1, 1981 and November 24, 1999. The 

plaintiffs alleged that the Department of Agriculture 

discriminated against them in a variety of ways in connection 

with these applications and its treatment of complaints of 

discrimination arising therefrom. The plaintiffs alleged that 

these actions violated the Equal Credit Opportunity Act, 15 

U.S.C. § 1691e; the Administrative Procedure Act, 5 U.S.C. § 

706(2)(A), and Title VI of the Civil Rights Act of 1964, 42 

U.S.C. § 2000d, et seq.

On December 12, 2001, this Court granted in part the 

plaintiffs’ motion for class certification. See Keepseagle v. 

Veneman, No. 99-3119, 2001 WL 34676944 (D.D.C. Dec. 12, 2001). 

Upon finding that the requirements of Federal Rule of Civil 

Procedure 23 had been met, the Court:

[C]ertifie[d] the following class for plaintiffs’ 

claims for declaratory and injunctive relief pursuant 

to Fed. R. Civ. P. 23(b)(2): All Native–American 
10

farmers and ranchers, who (1) farmed or ranched 

between January 1, 1981 and November 24, 1999; (2) 

applied to the USDA for participation in a farm 

program during that time period; and (3) filed a 

discrimination complaint with the USDA individually or 

through a representative during the time period.

Id. at *15. The Court did not address certification of 

plaintiffs’ claims for monetary relief:

Without a developed factual record and without clear 

representation of subclasses, it is impossible for the 

Court to make a finding that claims for individual 

compensatory relief will destroy the class cohesion. 

Similarly, the Court can not ascertain whether, should 

it permit class certification on plaintiffs’ claims 

for all forms of requested relief, the claims for 

monetary damages would overshadow those for 

declaratory and injunctive relief.

Id. at *14. Accordingly, the Court stated that it would consider 

certification of the plaintiffs’ monetary claims “in the event

that, after the completion of discovery and the identification 

of appropriate sub-class representatives, plaintiffs are able to 

demonstrate to the Court the existence of a class properly 

certifiable as a hybrid class or pursuant to Rule 23(b)(3).” Id. 

The D.C. Circuit declined the government’s petition for 

interlocutory review of the Court’s class-certification order. 

See In re Veneman, 309 F.3d 789 (D.C. Cir. 2002).

For nearly ten years, the parties engaged in extensive and 

contentious discovery and motions practice. A recounting of the 

full history of this phase is unnecessary at this time, but this 

nearly decade-long battle resulted in a narrowing of the 
11

plaintiffs’ claims. The Court granted in part a motion for 

judgment on the pleadings, dismissing the plaintiffs’ Title VI 

claim, which the plaintiffs had ultimately conceded was barred 

by the law in this jurisdiction at that time. See Opinion & 

Order, ECF No. 275. Plaintiffs filed a series of Amended 

Complaints, and ultimately rested in their Eighth Amended 

Complaint on their Equal Credit Opportunity Act claim. Eighth 

Am. Compl., ECF No. 460 ¶¶ 131–36. Discovery on this claim was 

completed by November 2009. With certification of the 

plaintiffs’ monetary claims still a hotly contested issue, the 

parties jointly sought to stay briefing on December 3, 2009, 

representing that “given the current status of the litigation, 

settlement discussions are appropriate at this time.” Joint Mot. 

to Stay, ECF No. 548 at 2. The case was in settlement 

discussions for most of 2010.

B. The Parties Reach a Settlement Agreement.

On October 19, 2010, the parties informed the Court that they 

had reached a settlement. See Notice, ECF No. 570. Three days 

later, the plaintiffs moved for preliminary approval of that 

settlement. See Mot. for Prelim. Approval, ECF No. 571. In 

connection with this motion, the plaintiffs noted that their 

expert witness had come to a conclusion that the damages 

suffered by the class were approximately $776,000,000, making 
12

the $680,000,000 settlement award nearly 90% of the plaintiffs’ 

estimated total damages. See Pls.’ Suppl. Br., ECF No. 572 at 4. 

On November 1, 2010, the Court granted preliminary approval of 

the settlement. See Order, ECF No. 577. In so doing, the Court 

affirmed its prior certification of the class’s injunctive 

claims and also certified the class’s claims for monetary relief 

under Federal Rule of Civil Procedure 23(b)(3). See id. at 2. 

The Court also approved the parties’ plan for disseminating 

notice of the Agreement, required that objections to the 

Agreement and requests to opt out be postmarked by no later than 

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

28, 2011. See id. at 3.

The relevant provisions of the settlement agreement were 

described in a prior Opinion of this Court:

The Agreement created a Compensation Fund (“the Fund”) 

of $680,000,000 “for the benefit of the Class.” 

[Agreement, ECF No. 621-2] ¶ VII.F (p. 7).1 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 

 1 In 2012, the Agreement was modified to alter provisions related 

to the distribution of certain awards. See Mot. to Amend, ECF 

No. 621 at 1; Amended Settlement Agreement, ECF No. 621–2. This 

modification was done without opposition from any party. See 

Minute Order of August 1, 2012. For clarity, the Court refers 

throughout this Opinion to the version of the Agreement as 

modified in 2012, as it has in prior Opinions. The amended 

agreement contains typographical errors that resulted in 

duplicative paragraph numbering. As the Court has in prior 

Opinions, the Court refers in its citations to the listed 

paragraph number as well as the page number on which the cited 

material appears.

2 An appeal of one of these decisions is currently pending before 
13

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 Non-Judicial 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 

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). 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 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 
14

services to Native Americans.” See Ex. I to Agreement, 

ECF No. 576–1 at 87, 88, 92.

Keepseagle v. Vilsack (“Keepseagle I”), No. 99-3119, 2014 WL 

5796751, at *2 (D.D.C. Nov. 7, 2014) (alterations in original).

The Court has also summarized the proceedings that followed:

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 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.

Id. at *3.
15

C. The Settlement Fund is Distributed, Leaving $380,000,000 

Leftover.

By design under the Agreement, the Court was largely 

uninvolved in the distribution process that followed final 

approval of the Agreement, with one exception. Over the course 

of the distribution, a handful of potential claimants petitioned 

this Court for relief from allegedly erroneous determinations 

made during the Non-Judicial Claims Process. See Smith Mot. to 

Intervene, ECF No. 622; LaBatte Mot. to Intervene, ECF No. No. 

635; Jones Mot. to Intervene, ECF No. 693. The Court rejected

these requests for similar reasons. See Order Denying Smith 

Mot., ECF No. 633; Order Denying LaBatte Mot., ECF No. 692; 

Order Denying Jones Mot., ECF No. 720. 

Because this case had settled, the Court’s jurisdiction was 

limited. See Order Denying LaBatte Mot., ECF No. 692 at 7–8. The 

putative intervenors had to rely on the Court’s ancillary 

jurisdiction, but “[a]ncillary jurisdiction . . . is a 

relatively limited source of jurisdiction[,] aris[ing]: ‘(1) to 

permit disposition by a single court of claims that are, in 

varying respects and degrees, factually interdependent . . . and 

(2) to enable a court to function successfully, that is, to 

manage its proceedings, vindicate its authority, and effectuate 

its decrees.’” Id. at 8 (quoting Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 379–80 (1994)). Neither criterion was 
16

satisfied, however. The first was inapplicable because the facts 

alleged by each putative intervenor—erroneous determinations 

during the Non-Judicial Claims Process—were distinct from the 

underlying claims of discrimination. See, e.g., id. The second 

was inapplicable because “‘[d]istrict courts enjoy no freeranging ‘ancillary’ jurisdiction to enforce consent decrees, but 

are instead constrained by the terms of the decree and related 

order.’” Id. at 8–9 (quoting Pigford v. Veneman, 292 F.3d 918, 

924 (D.C. Cir. 2002)). “The Agreement sharply limits the 

circumstances under which the Court may exercise jurisdiction,” 

and although the Court retained jurisdiction “‘to supervise the 

distribution of the Fund and to ensure that Debt Relief Awards 

issued by the Track A and Track B Neutrals are applied by 

USDA,’” “that provision is limited by a more specific provision 

of the Agreement precluding the Court from reviewing any ‘Claim 

Determinations, and any other determinations made under th[e] 

Non-Judicial Claims Process.’” Id. at 9 (quoting Agreement, ECF 

No. 621-1 ¶¶ V.A.7 (p. 40), IX.A.9 (p. 19)). These provisions, 

the Court held, are reconciled by “foreclos[ing] judicial review 

of certain decisions as to who is entitled to receive an award, 

while permitting judicial supervision over distribution of the 

Fund . . . after those decisions have been made.” Id. (quoting 

Order Denying Smith Mot., ECF No. 633 at 8).2

 2 An appeal of one of these decisions is currently pending before 
17

The Court previously described what occurred at the end of the 

distribution process:

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 3.3 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 endowment of 

a new foundation “which could fund non-profit 

organizations serving the needs of Native American 

 

the D.C. Circuit. See Keepseagle v. Vilsack, No. 14-5223 (D.C. 

Cir. filed Sept. 11, 2014).

3 It remains unclear why such a large amount was left over. Class 

Counsel proposes four causes: (1) “many of the farmers and 

ranchers who were otherwise eligible to participate in the 

settlement were deceased by the time the claims process began in 

mid-2011,” and although their heirs could file claims on behalf 

of their estate, “the heirs simply lacked sufficient information 

in order to complete the claim form”; (2) “[s]ome Native 

American farmer[s] and ranchers who believed they had been 

denied loans for discriminatory reasons regarded it futile to 

lodge complaints with the USDA,” so they were unable to prove 

their claim in the Non-Judicial Claims Process (which required 

some proof of having filed such a claim); (3) “the USDA’s 

historic failure to conduct sufficient outreach to much of the 

Native American farming and ranching community,” which, Class 

Counsel asserts, meant “that otherwise eligible Native Americans 

never applied or attempted to apply for loans” (such individuals 

were “included in the expert analysis of people eligible for 

loans,” but could not make a claim under the Agreement because 

they had never applied for a loan); (4) “there were some 

potential claimants who were so distrustful of the federal 

government for historic reasons, that they did not have 

confidence in the validity of the settlement process, and thus 

did not submit claims.” Class Counsel’s Status Report, ECF No. 

646 at 5 n.3. The government has proposed an additional

explanation: “[T]he simplest [explanation] is that there are 

simply fewer people with claims than Plaintiffs originally 

argued.” Gov’t Opp. to Keepseagle Mot. to Modify, ECF No. 786 at 

8 n.5.
18

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 Nation of Oklahoma and its 

affiliated Jones Academy Foundation] and [a group of 

class members calling themselves 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 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.
19

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 “not-for-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 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.

Keepseagle I, 2014 WL 5796751, at *3–4.
20

D. The Court Denies Requests to Intervene.

On November 7, 2014, the Court issued an Opinion denying both 

requests to intervene for lack of standing, which the Court 

found was a prerequisite for intervention as of right and for 

permissive intervention. See id.

The Choctaw Movants lacked Article III standing “because any 

injury [they may face] will arise only if a multitude of 

speculative events occur.” Id. at *6. Their purported economic 

injury was conjectural: “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.” Id. It was unclear whether they would even 

satisfy the requirements for obtaining a cy pres distribution 

under the existing agreement as the Choctaw Nation was a tribal 

government and “the Agreement does not include tribal 

governments as potential recipients of cy pres distributions.” 

Id. at *7. In any event, the Choctaw Movants had not yet been 

recommended by Class Counsel to receive a distribution, which 

was “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.’” Id. at *8 (quoting Clapper v. Amnesty Int’l, 133 S. 
21

Ct. 1138, 1150 (2013)). The Court also noted the “highly 

speculative” nature of predicting what amount the Choctaw 

Movants might receive if they were approved under the Agreement. 

See id. “These twin uncertainties—whether the Choctaw Movants 

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

they would receive—render[ed] it highly speculative to assert 

that the proposed modification would harm them.” Id. At the same 

time, it was hypothetical at best to say that the procedures as 

modified would harm, rather than help, the Choctaw Movants’s 

ability to receive a cy pres distribution and to say whether 

they would be likely to receive a larger or smaller amount if 

they were approved. See id. Finally, the Court rejected the 

argument that the Choctaw Movants would suffer a lost 

opportunity to compete, as they “lose no opportunity to compete 

under the modification” and their ability to compete under the 

original Agreement appeared to be “illusory.” Id.

The Choctaw Movants also independently lacked prudential 

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

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

suffer).” Id. at *9. “In doing so, they assert rights under the 

Agreement that do not belong to them.” Id. Because the Choctaw 
22

Movants could not show that they were in any way intended 

beneficiaries they could not seek to enforce rights purportedly 

created by that Agreement. See id. at *9–10. The Court rejected 

their argument that the Agreement created a trust of which the 

Choctaw Movants were intended beneficiaries: Both the purpose of 

cy pres and the text of the Agreement itself “confirm[ed] that 

[the cy pres provision’s] purpose was geared toward the Class.” 

Id. at *10. 

The Court also found that the Great Plains Claimants lacked 

Article III standing. Those individuals were all class members 

who had successfully pursued claims under the Agreement. See id.

at *12. Although none had objected to the cy pres provision when 

the Agreement was approved and none had filed an appeal from 

that approval, they sought to intervene to undo the cy pres 

provision, on the ground that they had a legally protected 

interest in the leftover funds. Id. The Court noted, however, 

that the class members had “intentionally satisfied their legal 

claims” by entering into the Agreement and thereby gave up any 

legal claim they may have had. See id. This Court also surveyed 

the law governing unclaimed settlement funds, which counseled 

strongly in favor of finding that “‘neither the class members 

nor the settling defendants have any legal right to unclaimed or 

excess funds.’” Id. (quoting Diamond Chem. Co. v. Akzo Nobel 
23

Chems. B.V., 517 F. Supp. 2d 212, 217 (D.D.C. 2007)). 

Accordingly, the Court held:

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 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.”

Id. at *13 (quoting Transcript of April 28, 2011 Fairness 

Hearing, ECF No. 609 at 24:9–18). In sum, the Court found that 

the Great Plains Claimants “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.” Id.

The Choctaw Movants timely appealed the Court’s intervention

decision. See Notice of Appeal, ECF No. 746. Their appeal 

remains pending before the D.C. Circuit, Keepseagle v. Vilsack, 

No. 15-5011 (D.C. Cir. filed Jan. 20, 2015), and they have 

indicated that they will not move to stay proceedings before 

this Court unless and until the Court grants any motion for 

modification of the Agreement. See Choctaw Mot. to Extend 

Deadline for Mot. to Stay, ECF No. 750 at 2. The Great Plains 

Claimants did not appeal the Court’s decision.
24

E. Ms. Keepseagle Obtains Separate Counsel.

Shortly before the Court issued its Opinion denying the 

motions to intervene, the Court scheduled a status hearing for 

December 2, 2014 and informed the parties that once the 

intervention issue was resolved, the Court would address the 

following issues:

(1) whether the Court must direct notice to the Class 

and hold a fairness hearing pursuant to Federal Rule 

of Civil Procedure 23(e); (2) whether, if Rule 23 does 

not permit the Court to require such notice and a 

hearing, the Court may nonetheless exercise discretion 

to direct notice to the class and to permit class 

members to give their thoughts on the proposed 

modification during a status hearing or motion 

hearing; and (3) what content and form any notice—

whether required by Rule 23(e) or permitted by the 

Court’s discretion—should take.

Minute Order of October 20, 2014.

In advance of the December 2, 2014 status hearing, the Court’s 

staff was contacted by individuals on behalf of class 

representative Marilyn Keepseagle, who indicated that Ms. 

Keepseagle would attend the December 2, 2014 hearing, and 

requested an opportunity to be heard by the Court. A recent 

Opinion of this Court summarized what transpired next:

The Court began the status hearing by permitting Ms. 

Keepseagle to speak. Ms. Keepseagle discussed her 

opposition to Class Counsel’s proposed modification 

and her support for a proposal under which the cy pres

funds would instead be distributed to members of the 

class. See Transcript of Dec. 2, 2014 Hearing, ECF No. 

756 at 5:12–8:5, 9:19–10:3. The Court responded:
25

I’m not suggesting at all by any stretch of the 

imagination that the theory has legal support. I 

don’t know. But I very clearly heard [Ms. 

Keepseagle] tell me in her words very eloquently, 

as she is, that she wants relief from this 

judgment which sounds like a Rule 60(b) motion. 

So, the thought then is, what should the Court do 

at this juncture to enable her to develop her 

theory? I’m not going to lose sight of the fact 

that she’s without individual counsel, from what 

I can determine based on our brief discussion in 

open court.

Id. at 12:25–13:18. Accordingly, the Court held 

further proceedings in abeyance, and granted Ms. 

Keepseagle time to secure legal representation. See 

id. at 22:4–9.

Keepseagle v. Vilsack (“Keepseagle II”), No. 99-3119, 2015 WL 

1851093, at *2 (D.D.C. Apr. 23, 2015). 

Ms. Keepseagle’s new attorneys entered their appearances on 

February 9, 2015 and indicated their desire to file two 

preliminary motions before proceeding to address the settlementmodification issue. See id. Over the objection of Class Counsel

and the government, the Court set an expedited schedule for 

separate adjudication of those motions. See id. One motion 

sought “a Court Order removing Porter Holder and Claryca Mandan 

as class representatives” on the grounds that they were 

inadequate because they supported Class Counsel’s proposed 

modification, while the other motion sought “an Order compelling 

Class Counsel to produce certain materials” related to public 

gatherings at which Class Counsel discussed their proposed 

modification with members of the class. Id.
26

On April 23, 2015, the Court denied both motions. See id. The 

Court found that Porter Holder and Claryca Mandan remained 

adequate class representatives because their position—while 

unpopular with many class members—was a principled outgrowth of 

their representation of the entire class and consideration of 

various litigation risks. See id. at *5–8. In any event, the 

Court found that it would lack the authority to remove class 

representatives at this stage of litigation because Federal 

Rules of Civil Procedure 23(a)(4) and 23(c)(1)(C) do not “permit 

the Court to modify the class certification order in light of 

allegedly inadequate representation by a class representative . 

. . where post-judgment actions will not affect class members’ 

legal rights.” Id. at *3. This was such a situation, as “the 

class members in this case have no legal right to the Cy Pres 

Fund,” and thus “the proposed modification would not implicate a 

class member’s legal right.” Id. at *5. As for the motion to 

compel, the Court found that the Keepseagles failed to supply an 

appropriate legal basis for such discovery at this stage of 

proceedings. See id. at *8–11. 

F. The June 29, 2015 Hearing and the Pending Modification 

Proposals.

Having resolved all pending requests for intervention, Ms. 

Keepseagle’s representation status, and the preliminary motions 

filed by her counsel, the Court set a schedule for the 
27

simultaneous briefing of the Keepseagles’s motion to modify and 

Class Counsel’s motion to modify. See Order, ECF No. 771 at 1–2. 

The Court also scheduled a hearing on these motions for June 29, 

2015. See id. at 2.

In anticipation of this hearing, the Court resolved the last 

preliminary issue: the applicability of Federal Rule of Civil 

Procedure 23(e). Agreeing with the government and Class Counsel, 

the Court found Rule 23(e) inapplicable to Class Counsel’s 

proposed modification. See Keepseagle v. Vilsack (“Keepseagle 

III”), No. 99-3119, 2015 WL 1969814, at *4–8 (D.D.C. May 4, 

2015). The Court first held that Rule 23(e) “applies only when a 

modification materially hinders a class member’s legal right.” 

Id. at *4. This is so because the entire purpose of Rule 23—and 

in particular Rule 23(e)—is to provide procedural protections at 

various stages of class-action litigation to ensure that the 

rights of absent class members are appropriately protected. See 

id. Unless a proposed modification would hinder such a class 

member’s legal right in some way—whether by expanding the scope 

of the res judicata effect of the judgment or otherwise limiting 

the remedy available to a class member—there would be no need 

for such protections. See id. at *5–6. The Court found—for 

reasons similar to its findings that the Great Plains Claimants 

lacked a legal interest in the Cy Pres Fund and that the 

Keepseagles could not remove class representatives at this stage 
28

of proceedings—that Class Counsel’s proposed modification would 

not have such an effect. See id. at *6–7. Notwithstanding this 

finding, the Court held that it had the authority, under both 

Rule 23 and the Agreement itself, to order Class Counsel to 

provide notice to the class of its motion to modify and of the 

June 29, 2015 hearing, and also to permit class members to speak 

during the hearing to provide their perspectives on the issue.

See id. at *7–9. The Court’s Order provided that class members 

could submit written comments to the Court’s chambers—which have 

been posted on the docket—and could also speak during the June 

29, 2015 hearing. See Order, ECF No. 775. 

The June 29, 2015 hearing lasted the entire day in the Court’s 

Ceremonial Courtroom. After hearing extensive argument from 

counsel, the Court was able to hear oral statements from all 

individuals who wished to give them. See generally Transcript of 

June 29, 2015 Hearing, ECF No. 806. Many individuals spoke in 

favor of a proposal akin to Ms. Keepseagle’s, under which the 

excess funds would be distributed to class members directly. 

Many also shared the heart-wrenching stories of discrimination 

they allegedly suffered at the hands of the federal government, 

and the lasting effects of that discrimination.

The motions for modification of the settlement agreement are 

now ripe for resolution. As described above, Class Counsel seeks 

a modification of the procedures for the cy pres distribution, 
29

and the government does not oppose that motion. See Class 

Counsel Mot., ECF No. 709. The Keepseagles request a 

modification that would either provide pro rata distribution to 

class members who were successful under the initial Claims 

Process or, in the alternative, provide for a second claims 

period for those who were not successful under the original 

process and then distribute the remainder pro rata to all who 

were successful in either round of the distribution process. See 

Keepseagle Mot., ECF No. 779. The Court has received amicus 

curiae briefs from three groups—(1) the Association of American 

Indian Farmers, (2) the Great Plains Claimants, and (3) the 

Indian Land Tenure Foundation and Intertribal Agriculture 

Council. See Assoc. of Am. Indian Farmers Br., ECF No. 740;

Great Plains Claimants Br., ECF No. 784; Indian Land Tenure Br., 

ECF No. 787. Finally, the Court has received extensive

correspondence from class members and others expressing their 

views on the proposals.4

 4 See First Set of Letters, ECF No. 780; Second Set of Letters, 

ECF No. 789; Third Set of Letters, ECF No. 790; Fourth Set of 

Letters, ECF No. 791; Fifth Set of Letters, ECF No. 794; Sixth 

Set of Letters, ECF No. 795; Seventh Set of Letters, ECF No. 

796; Eighth Set of Letters, ECF No. 797; Ninth Set of Letters, 

ECF No. 798; Tenth Set of Letters, ECF No. 799; Eleventh Set of 

Letters, ECF No. 800; Twelfth Set of Letters, ECF No. 801; 

Thirteenth Set of Letters, ECF No. 802; Fourteenth Set of 

Letters, ECF No. 803; Fifteenth Set of Letters, ECF No. 804; 

Sixteenth Set of Letters, ECF No. 805; Seventeenth Set of 

Letters, ECF No. 807.
30

II. Analysis

The Court begins with the undisputed proposition that the 

Agreement is a final judgment. As this Court has noted on two 

recent occasions, “[a]n 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); 

see Keepseagle II, 2015 WL 1851093, at *4; Keepseagle I, 2014 WL 

5796751, at *12. The Supreme Court has made this issue clear 

with regard to consent decrees similar to the Agreement in this 

case. “A consent decree no doubt embodies an agreement of the 

parties and thus in some respects is contractual in nature. But 

it is an agreement that the parties desire and expect will be 

reflected in, and be enforceable as, a judicial decree that is 

subject to the rules generally applicable to other judgments and 

decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 

378 (1992); see also Pigford, 292 F.3d at 923 (treating a 

settlement of a very similar case involving the claims of 

African-American farmers under Rufo’s standard for consent 

decrees). 

Because the Agreement is a final judgment, the Court’s 

authority is circumscribed. “[D]istrict courts enjoy no freeranging ‘ancillary’ jurisdiction to enforce consent decrees, but 

are instead constrained by the terms of the decree and related 
31

order.” Pigford, 292 F.3d at 924 (quoting Kokkonen, 511 U.S. at 

381). “As our court of appeals has rhetorically asked: ‘Who 

would sign a consent decree if district courts had free-ranging 

interpretive or enforcement authority untethered from the 

decree’s negotiated terms?’” In re Black Farmers Discrim. 

Litig., 950 F. Supp. 2d 196, 200 (D.D.C. 2013) (quoting Pigford, 

292 F.3d at 925). Indeed, the importance of respecting the 

finality of a judgment is deeply embedded in our legal system.

See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003) 

(noting “the law’s important interest in the finality of 

judgments”). Any party seeking to overrule, modify, or rescind 

the Agreement therefore bears the burden of demonstrating a 

legal basis for doing so. Three avenues have been raised by one 

or more of the parties: (1) the law governing the disposition of 

unclaimed settlement funds; (2) Federal Rule of Civil Procedure 

60(b); and (3) the modification provision of the Agreement 

itself. The Keepseagles rely upon the first and second avenues, 

while Class Counsel relies upon the second and third.

A. The Law Governing the Disposition of Unclaimed Settlement 

Funds Does Not Override the Mandatory Language of the 

Agreement.

The Keepseagles focus a large portion of their arguments—both 

in favor of their proposal and in opposition to Class Counsel’s 

proposal—on the legal doctrine governing the distribution of 

excess funds. Their argument is that this doctrine has become 
32

increasingly inhospitable to the use of cy pres except as a last 

resort. They assert that the current circumstances of this case

do not render other distribution methods unworkable, so the 

Court should not utilize a cy pres remedy. Class Counsel and the 

defendant note that the Keepseagles are eliding an important 

fact that renders this case unique: The question is not which 

distribution method the Court should choose in a vacuum; rather, 

the Court is presented with specific and mandatory language in a 

final settlement that was never challenged or appealed.

1. Questions Have Arisen Regarding the Legal Rules 

Applicable to Cy Pres Remedies.

Courts in this Circuit have approved generally of the use of 

cy pres in distributing leftover settlement proceeds. See

Democratic Cent. Comm. of D.C. v. Washington Metro. Area Transit 

Comm’n, 84 F.3d 451, 455, 457 (D.C. Cir. 1996); In re Living 

Social Marketing & Sales Practice Litig., 298 F.R.D. 1 (D.D.C. 

2013); Diamond Chem. Co., 517 F. Supp. 2d 212; Diamond Chem. 

Co., Inc. v. Akzo Nobel Chems. B.V., Nos. 1-2118, 2-1018, 2007 

WL 2007447 (D.D.C. July 10, 2007). The Keepseagles are not wrong 

to suggest that cy pres has fallen out of favor in recent years, 

however. In a statement concurring in the denial of certiorari, 

Chief Justice Roberts summarized the many legal issues lurking 

to be decided:

Granting review of this case might not have afforded 

the Court an opportunity to address more fundamental 
33

concerns surrounding the use of such remedies in class 

action litigation, including when, if ever, such 

relief should be considered; how to assess its 

fairness as a general matter; whether new entities may 

be established as part of such relief; if not, how 

existing entities should be selected; what the 

respective roles of the judge and parties are in 

shaping a cy pres remedy; how closely the goals of any 

enlisted organization must correspond to the interests 

of the class; and so on. This Court has not previously 

addressed any of these issues. . . . In a suitable 

case, this Court may need to clarify the limits on the 

use of such remedies.

Marek v. Lane, 134 S. Ct. 8, 9 (2013) (Roberts, C.J.). The 

American Law Institute has also set forth principles to govern 

the use of cy pres, which limit the circumstances in which a 

court may choose cy pres over other distribution methods:

• (a) If individual class members can be identified 

through reasonable effort, and the distributions are 

sufficiently large to make individual distributions 

economically viable, settlement proceeds should be 

distributed directly to individual class members.

• (b) If the settlement involves individual 

distributions to class members and funds remain after 

distributions (because some class members could not be 

identified or chose not to participate), the 

settlement should presumptively provide for further 

distributions to participating class members unless 

the amounts involved are too small to make individual 

distributions economically viable or other specific 

reasons exist that would make such further 

distributions impossible or unfair.

• (c) If the court finds that individual distributions 

are not viable based upon the criteria set forth in 

subsections (a) and (b), the settlement may utilize a 

cy pres approach. The court, when feasible, should 

require the parties to identify a recipient whose 

interests reasonably approximate those being pursued 

by the class. If, and only if, no recipient whose 

interests reasonably approximate those being pursued 
34

by the class can be identified after thorough 

investigation and analysis, a court may approve a 

recipient that does not reasonably approximate the 

interests being pursued by the class.

Principles of the Law of Aggregate Litigation § 3.07 (2010). The 

Keepseagles urge the Court to follow these Principles and 

thereby decline to utilize a cy pres remedy in this case because 

individual distributions to class members would not be 

especially difficult. Their argument is reasonable: This is not 

a case where further distribution of unclaimed funds to the 

class would be terribly inefficient. The large amount of money 

remaining to be distributed, combined with the large number of 

identifiable potential claimants would make further 

distributions relatively straightforward. Those who were 

unsuccessful during the previous claims process could be put 

through a renewed process, while those who previously received 

compensation could prove that they suffered damages in excess of 

the award they already received. Were this case in a traditional 

posture, the issue would be relatively clear.

2. This Case Involves the Unique Circumstance in which a 

Cy Pres Remedy Has Already Been Approved and Neither 

Objected to Nor Appealed from.

In urging the Court to resort immediately to the ALI 

Principles—which address whether to use a cy pres remedy in the 

first place—the Keepseagles gloss over a key fact that places 

this case in a unique posture: “[T]his is not a case where 
35

parties seek to . . . address whether cy pres is appropriate in 

the first instance,” Keepseagle I, 2014 WL 5796751, at *1, nor 

is it one in which the Court is presented with a settlement 

agreement that contains a cy pres provision and must assess 

whether it is “fair, reasonable, and adequate” before approving 

it. Fed. R. Civ. P. 23(e)(2); cf. Keepseagle III, 2015 WL 

1969814, at *6 (“The question . . . is not whether choosing to 

utilize a cy pres remedy in the first instance would alter the 

class’s legal rights if the Settlement Agreement were silent on 

the disposition of excess funds (that ship sailed in 2011).”). 

If the Court were presented with such a blank slate and asked to 

decide how to distribute $380,000,000 in leftover funds, the 

Keepseagles would likely be correct that of the four general 

options available to a court considering how to distribute 

unclaimed funds—(1) allowing the funds to revert to the 

defendant; (2) pro rata distribution to class members who filed 

claims; (3) escheat to the state or federal government; or (4) 

cy pres distribution—the Court would choose a pro rata 

distribution. See Newberg on Class Actions § 12:28 (5th ed. 

2015) (as a general matter, “a court’s goal in distributing 

class action damages is to get as much of the money to the class 

members in as simple a manner as possible”).
36

As Professor Rubenstein notes in Newberg on Class Actions, the 

existence of mandatory language in a final settlement agreement 

cannot be ignored: 

[T]he parties’ settlement agreement will typically 

include a provision expressing the settling parties’ 

preference with regard to unclaimed funds. The Court 

will review that provision at final approval to ensure 

it is ‘fair, reasonable, and adequate’ from the 

perspective of the class; if it is, the court will 

enforce the provision and follow its distributional 

instructions, even if the court (or objectors) might 

have chosen a different path.

Id. The Keepseagles ignore the fact that a final judgment speaks 

directly to the issue in this case and mandates the use of a cy 

pres remedy. The Court, however, must recognize the powerful 

force of a final judgment agreed upon by all parties, approved 

by the Court, and neither objected to nor appealed from, “even 

if the court (or objectors) might have chosen a different path” 

knowing what is known now. Id.

3. Most Case Law Regarding the Use of Cy Pres Does Not 

Address the Circumstance in Which Cy Pres Has Already 

Been Finally Approved.

The authorities on which the Keepseagles rely for the 

proposition that a cy pres distribution is inappropriate in this 

case largely addressed situations in which no final settlement 

agreement spoke to the issue. See, e.g., In re Baby Prods. 

Antitrust Litig., 708 F.3d 163, 169, 172, 173 (3d Cir. 2013) 

(reviewing objector’s direct appeal of the district court’s 

approval of a settlement that directed excess funds to “one or 
37

more charitable organizations proposed by the parties and 

selected by the Court,” finding “that a district court does not 

abuse its discretion by approving a class action settlement 

agreement that includes a cy pres component directing the 

distribution of excess settlement funds to a third party to be 

used for a purpose related to the class injury,” but vacating 

the approval of the settlement because the district court “did 

not have the factual basis necessary to determine whether the 

settlement was fair to the entire class”—namely, the district 

court’s approval came before it was informed of the unexpectedly 

high amount of unclaimed funds because “counsel did not provide 

this information to the Court”); Nachshin v. AOL, LLC, 663 F.3d 

1034, 1037–38 (9th Cir. 2011) (reviewing objector’s direct 

appeal of a district court’s approval of a settlement in which 

no damages would go to the class and would instead be 

distributed entirely as cy pres); Masters v. Wilhelmina Model 

Agency, Inc., 473 F.3d 423, 428, 435–36 (2d Cir. 2007) 

(reviewing objector’s direct appeal of a district court’s 

approval of a settlement that provided that if there were excess 

funds “the Court shall, in its discretion, determine the 

disposition . . . after hearing the views of the parties hereto 

as to such disposition” and reversing insofar as the district 

court viewed its hands as tied in rejecting a request for an 
38

award of treble damages to the class, in lieu of cy pres).5 Two 

decisions warrant a more detailed review, as they frame the 

fact-specific inquiry that is required when assessing whether cy 

pres is mandated or permitted by a settlement.

In the case In re Lupron Marketing & Sales Practices 

Litigation, 677 F.3d 21 (1st Cir. 2012), a class of “medical 

patient consumers . . . alleging fraud in overcharging for the 

medication Lupron” reached a settlement agreement which the 

district court approved. Id. at 23–24. A fairness hearing was 

held, at which time a group of dissident class members—one of 

whom had been allowed to intervene to “participat[e] in the 

process established by the court for the evaluation of the 

proposed settlement”—objected “that the amount of the settlement 

allocated to the class of consumer purchasers of Lupron was 

inadequate.” Id. at 25. After the district court approved the 

settlement over objection, the dissidents “said they would 

pursue appeals of the settlement agreement unless they received 

more,” so the parties negotiated an “implementation agreement” 

 5 In re Katrina Canal Breaches Litig., 628 F.3d 185, 196–98 (5th 

Cir. 2010) is wholly distinct. That decision declined to 

consider “whether a cy pres distribution of the settlement fund, 

without any monetary distribution would be fair, reasonable, and 

adequate” as such a decision “would be premature” and later 

found that a proposed notice of class-action settlement was 

inadequate because it failed to inform class members of the 

possibility that excess funds would be distributed cy pres. The 

notice in this case did not suffer from such deficiencies. See 

Keepseagle I, 2014 WL 5796751, at *2.
39

which increased the payments available to the consumer class in 

exchange for the withdrawal of the objectors’ appeals and 

objections. See id. at 26. The district court approved the 

settlement and the implementation agreement. See id. After a 

four-year-long claims period, over $11,000,000 remained in 

unclaimed funds. See id. The district court heard proposals on 

the disposition of those funds and ultimately “decided to make a 

cy pres award of all of the unclaimed settlement funds” to a 

hospital. See id. at 27. Three of the dissidents noted an appeal 

of this decision. See id. at 28. The First Circuit affirmed the 

decision to use cy pres because class members had received the 

full amount of their damages and the class’s relief “was 

established for the benefit of all consumer purchasers of 

Lupron, not just the 11,000 who filed claims.” Id. at 34. 

Although the First Circuit found that application of the ALI 

Principles was appropriate at that stage, it was presented with 

a settlement agreement, unlike the one before this Court, that

directed that unclaimed funds “shall be distributed in the 

discretion of the Settlement Court as it deems appropriate,” 

noting that “[i]f all or part of any unclaimed funds is 

distributed to one or more charitable organizations,” the 

defendant reserved the right to claim a tax deduction. Id. at 

26. Thus, unlike the Keepseagle settlement, the district court 

in Lupron had to make a threshold determination whether to 
40

utilize cy pres or another distribution mechanism. Were the 

Court presented with such a circumstance, this case would be 

very different.

The issue is therefore very fact-specific when it arises in a 

case resolved by a settlement agreement, as the Fifth Circuit

explained in Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 

(5th Cir. 2011). In Klier, the Fifth Circuit was presented with 

a class-action settlement resolving “claims of persons 

assertedly injured by the toxic emissions of an industrial plant 

near Bryan, Texas.” Id. at 471. The settlement created three 

subclasses and allocated monetary relief among them. See id. One 

subclass—of individuals who did not yet have medical conditions 

resulting from the emissions—obtained medical monitoring as 

relief. See id. at 472. Another class included individuals 

“suffering serious injuries,” who received direct payments. See 

id. at 470, 472. Upon completion of the medical-monitoring, the 

funds allocated to that subclass were not exhausted, but the 

fund for the subclass of individuals who suffered injury was 

exhausted. See id. at 473. The district court then granted the 

defendant’s request to distribute the funds as cy pres, and a 

class member opposed the proposal, arguing “that an additional 

distribution to members of [the injury subclass] was 

economically feasible and would be equitable since the members 

of [that subclass] had been found to suffer [serious injuries] 
41

that are compensable under the settlement.” Id. The Fifth 

Circuit reversed the district court’s decision to utilize a cy 

pres remedy, focusing on the fact that the settlement agreement 

itself contained no such remedy and in fact contained three 

interrelated provisions that counseled in favor of 

redistribution to members of the other subclass. See id. at 476–

77 (one provision required “that any money left over in any 

subclass fund ‘shall be distributed pro rata to all Claimants in 

that subclass,” another provision permitted the court to “make 

changes to the terms of this protocol as necessary for the 

benefit of the Settlement Class Members,” and a third provision 

allowed the settlement administrator to petition the court “for 

reallocation of available funds among the [subclasses] on a 

showing of good cause if . . . he determines that considerations 

of equity and fairness require reallocation”) (alterations in 

original). The Fifth Circuit emphasized a district court’s role 

in administering a class-action settlement: 

Because a district court’s authority to administer a 

class-action settlement derives from Rule 23, the 

court cannot modify the bargained-for terms of the 

settlement agreement. That is, while the settlement 

agreement must gain the approval of the district 

judge, once approved its terms must be followed by the 

court and the parties alike. The district judge must 

abide the provisions of the settlement agreement, 

reading it to effectuate the goals of the litigation. 

This is not a free exercise of cy pres, but a 

determination of how the settlement agreement’s many 

provisions define the class’s property interests and 

allocate those interests once created. The terms of 
42

the settlement agreement are always to be given 

controlling effect.

Id. at 475–76; see also id. at 476 (“This is not a case where 

the settlement agreement itself provides that residual funds 

shall be distributed via cy pres.”).

4. The Eighth Circuit’s Decision in In Re Bank America 

Corporation Securities Litigation Is Unpersuasive.

Only one decision cited by the Keepseagles addressed the 

situation in which a settlement agreement mandated the use of cy 

pres. That decision found it appropriate to overrule an 

agreement that had been approved by a district court and 

affirmed as fair by the Eighth Circuit, all without objection to 

the cy pres provision.

In re BankAmerica Corp. Securities Litigation (“BankAmerica 

II”), 775 F.3d 1060 (8th Cir. 2015) involved a settlement of a 

securities-fraud class action, resulting in a $333,200,000 fund 

for a subclass of shareholders of NationsBank. See id. at 1062. 

A class representative objected that the class should receive 

more money because of the strength of its claims. See id. That 

objection was overruled, and the objector appealed. See id. at 

1069. “At that time[, the objector] did not raise any objection

to . . . the provision that settlement funds remaining after one 

or two distributions ‘may be contributed as a donation to one or 

more non-sectarian, not-for-profit 501(c)(3) organizations as 

determined by the Court in its sole discretion.’” Id. (emphasis 
43

in original). The Eighth Circuit affirmed the district court’s 

approval of the settlement agreement, which included that term. 

See In re BankAmerica Secs. Litig. (“BankAmerica I”), 350 F.3d 

747, 752 (8th Cir. 2003). A round of distributions occurred in 

2004 and another took place in 2009, after which approximately 

$2,400,000 remained. See BankAmerica II, 775 F.3d at 1062. In 

2012, class counsel moved, over objection of the same objector 

who brought the appeal in BankAmerica I, to distribute the 

remainder as cy pres, and the district court agreed and ordered 

the funds distributed to Legal Services of Eastern Missouri. See 

id. The objector appealed from that determination and the Eighth 

Circuit reversed. In so doing, the Eighth Circuit discussed 

extensively the ALI Principles and the Court’s belief that cy 

pres was inappropriate in the case. See id. at 1063–66. 

The Eighth Circuit addressed only briefly the fact that the 

language of the final settlement agreement, to which the very 

same objector had failed to object originally and failed to 

mention in his prior appeal, “stat[ed] that the balance in the 

settlement fund ‘shall be contributed’ to non-profit 

organizations ‘determined by the court in its sole discretion.” 

Id. at 1066. The Eighth Circuit’s reasoning for ignoring the 

settlement agreement was as follows:

In the first place, the agreement and order stating 

that a cy pres distribution would be made in the 

district court’s ‘sole discretion’ was contrary to our 
44

controlling decisions in Airline Tickets I and Airline 

Tickets II; that provision was void ab initio. See In 

re Lupron, 677 F.3d at 38 (“Distribution of funds at 

the discretion of the court is not a traditional 

Article III function.”). More importantly, we agree 

with the Ninth Circuit that “[a] proposed cy pres 

distribution must meet [our standards governing cy 

pres awards] regardless of whether the award was 

fashioned by the settling parties or the trial court.” 

Nachshin, 663 F.3d at 1040. In arguing to the contrary 

[Class Counsel] misstates the holding of Klier, which 

overturned the district court’s cy pres award because 

‘a cy pres distribution to a third party of unclaimed 

settlement funds is permissible only when it is not 

feasible to make further distributions to class 

members.” 658 F.3d at 475.

Id. The Court is not persuaded by this reasoning. 

First, the Court is not persuaded that it has any authority to 

declare void portions of an agreement that was negotiated by the 

parties, approved by the Court pursuant to Federal Rule of Civil 

Procedure 23, and finalized on appeal (either by affirmance of 

the Court of Appeals or by the lack of any timely appeal). The 

Eighth Circuit’s finding that the cy pres provision with which 

it was presented was nonetheless “void ab initio” is difficult 

to square with this reality, and the Eighth Circuit cited no

authority for the proposition that courts may line-item-veto

final settlements in this manner.6 To the extent that the Eighth 

 6 Even if this reasoning were persuasive, the D.C. Circuit does 

not appear to have any precedent that would have rendered the cy 

pres provisions of the Keepseagle settlement void ab initio. 

Furthermore, the Keepseagle settlement does not devote the cy 

pres distribution to the Court’s discretion; rather, it mandates 

that the funds be transmitted to a cy pres fund by the claims 

administrator, makes Class Counsel responsible for soliciting 
45

Circuit relied upon In re Lupron for such authority, this Court 

is unconvinced. The general statement in Lupron cited by the 

Eighth Circuit—that “[d]istribution of funds at the discretion 

of the court is not a traditional Article III function”—does not

establish the authority for a court to find a provision of a 

settlement agreement void after that very court had approved the

agreement. Lupron, moreover, affirmed the application of cy pres 

consistent with the ALI Principles when dealing with a 

settlement that gave the district court discretion in discerning 

how excess funds should be distributed. 677 F.3d at 30–36.

Second, the Eighth Circuit’s reliance on a decision of the 

Ninth Circuit for the proposition that cy pres distributions 

must comply with legal standards governing whether cy pres is 

appropriate “regardless of whether the award was fashioned by 

the settling parties or the trial court,” Nachshin, 663 F.3d at 

1040, is unhelpful because that decision was a direct review of 

a district court’s approval of a settlement agreement, so it was 

the Ninth Circuit’s job to confirm whether the entire 

settlement, including the cy pres provision, was fair, 

reasonable, and adequate in the face of objections. At that 

stage, a court obviously must apply the doctrine governing the 

appropriate disposition of unclaimed funds. Nachshin does not 

 

applications and making recommendations, and places the Court in 

a minor administrative role of approving those recommendations.
46

address a court’s role after final approval and affirmance on 

appeal (or when no appeal is filed).

Third, the final sentence of the Eighth Circuit’s reasoning on 

this point criticizes class counsel in that case for 

“misstat[ing] the holding of Klier, which overturned the 

district court’s cy pres award because ‘a cy pres distribution 

to a third party of unclaimed settlement funds is permissible 

only when it is not feasible to make further distributions to 

class members.” 658 F.3d at 475. Klier, however, is a paean to 

the sanctity of class-action settlement agreements. Indeed, the 

Fifth Circuit in that case found that the applicable settlement 

agreement not only failed to provide affirmatively for a cy pres 

distribution, but actually contained provisions indicating that 

pro rata distribution to another subclass was appropriate. See 

id. at 476–77. The Fifth Circuit specifically distinguished the 

circumstance presented in BankAmerica II and in this case: “This 

is not a case where the settlement agreement itself provides 

that residual funds shall be distributed via cy pres.” Id. at 

476. And the Fifth Circuit could not have been clearer on the 

importance of following the settlement agreement’s terms: 

Because a district court’s authority to administer a 

class-action settlement derives from Rule 23, the 

court cannot modify the bargained-for terms of the 

settlement agreement. That is, while the settlement 

agreement must gain the approval of the district 

judge, once approved its terms must be followed by the 

court and the parties alike. The district judge must 
47

abide the provisions of the settlement agreement, 

reading it to effectuate the goals of the litigation.

. . . The terms of the settlement agreement are always 

to be given controlling effect.

Id. at 475–76.

In this Court’s view, the Eighth Circuit’s reasoning for 

overruling a final settlement is unpersuasive. Courts are 

appropriately bound by the language of final settlement 

agreements and may deviate from them only when authorized by 

law. In the context of class actions, settlement agreements 

reflect the considered judgment of the class, its counsel, the 

defendant, and the Court, after following extensive procedural 

protections. The truly terrible facts of the case before this 

Court arguably cry out for a resolution that does not result in 

$380,000,000 being distributed as cy pres where class members 

are readily identifiable and may either prove their previously 

unsuccessful claims or prove that they suffered damages in 

excess of what they already received. Notwithstanding this 

reality, the Court must resist the temptation to allow these bad 

facts to make bad law. Following the Eighth Circuit’s holding 

would make bad law by undermining the finality of a judgment 

without a clear legal basis for doing so.

* * *

For these reasons, the Court is bound to the final judgment 

proposed by the parties and approved by the Court after full 
48

compliance with Rule 23 procedures—an approval to which no class 

member objected in relevant part or appealed from at all. 

Whether the cy pres doctrine as it exists in 2015 may bar a 

finding that a cy pres provision like the one approved by this 

Court in 2011 is fair, reasonable, and adequate is not an issue 

before the Court.7

 7 This case should serve as a cautionary tale to litigants in 

complex class actions. It should be the rare case where a major 

settlement agreement is completely finalized, only to find that 

a massive amount of unclaimed funds are leftover due to starkly 

lower-than-expected turnout by members of the class. Parties 

must do a much better job of predicting turnout and facilitating 

class-member participation in settlements. Such settlements are 

presented to district courts in a non-adversarial posture unless 

there are vocal objectors, making district courts especially

ill-equipped to assess the reasonableness of a settlement’s 

predictions for class-member participation.

That does not leave district courts at the mercy of the accuracy 

of the parties’ predictions, however. To reduce the chances of 

the circumstances of this case repeating themselves, the Court 

suggests one of two paths. One option is “to withhold final 

approval of a settlement until the actual distribution of funds 

can be estimated with reasonable accuracy.” In re Baby Prods., 

708 F.3d at 174; see also In re Living Social, 298 F.R.D. at 14 

(giving final approval to a settlement that included a cy pres 

remedy only after the claims process had completed, at which 

point the court knew that $1,900,000 would be distributed to 

class members while $2,500,000 would be distributed as cy pres). 

This could allow the parties to modify certain portions of the 

preliminary settlement to reflect especially high or low 

turnout. Another option is for parties to include in the 

settlement terms that would be triggered in the event of a 

larger-than-expected excess to ensure that, similar to the 

result in Klier, class members who did participate are able to 

benefit, so long as that benefit would not exceed their actual 

damages. See In re Baby Prods., 708 F.3d at 174 (“[A] court may 

urge the parties to implement a settlement structure that 

attempts to maintain an appropriate balance between payments to 

the class and cy pres awards.”). These approaches would have 
49

B. Federal Rule of Civil Procedure 60(b) Does Not Provide a 

Method for Modifying the Agreement.

The parties each seek modification of the Agreement pursuant 

to Federal Rule of Civil Procedure 60(b). Class Counsel relies 

upon Rule 60(b)(5), while the Keepseagles invoke Rules 60(b)(5) 

and 60(b)(6). Under Rule 60(b)(5), both parties argue that the 

far-larger-than-expected amount of excess funds is a changed 

circumstance that renders prospective application of the 

Agreement inequitable. Under Rule 60(b)(6), the Keepseagles

argue that the issue is so important that it meets the 

extraordinary-circumstances test necessary for application of 

that Rule. Neither party has a convincing argument. 

“‘[T]he decision to grant or deny a Rule 60(b) motion is 

committed to the discretion of the District Court.’” Green v. 

AFL-CIO, 287 F.R.D. 107, 109 (D.D.C. 2012) (quoting Kareem v. 

FDIC, 811 F. Supp. 2d 279, 282 (D.D.C. 2011)) (alteration in 

original). “‘The movant has the burden to establish that [he is] 

entitled to relief under Rule 60(b).’” Cohen v. Bd. of Trustees 

of Univ. of D.C., No. 14-754, 2014 WL 6890705, at *2 (D.D.C. 

Dec. 9, 2014) (quoting F.S. v. District of Columbia, No. 10–

1203, 2014 WL 4923025, at *2 (D.D.C. Oct. 2, 2014)) (alteration 

in original). Ultimately, “under Rule 60(b) the trial judge must 

 

prevented the result in this case. Unfortunately, because this 

issue arose after final judgment, the ability of the parties and 

the Court to rectify the problem is much more limited.
50

strike a ‘delicate balance between the sanctity of final 

judgments and the incessant command of a court’s conscience that 

justice be done in light of all the facts.’” Twelve John Does v. 

District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)

(alteration omitted; emphasis in original).

1. Federal Rule of Civil Procedure 60(b)(5) Does Not 

Apply Because the Cy Pres Provision Is Not Prospective

and Circumstances Have Not Changed in a Manner 

Warranting Relief.

Federal Rule of Civil Procedure 60(b)(5) provides: “On motion 

and just terms, the court may relieve a party or its legal 

representative from a final judgment, order, or proceeding 

[when] the judgment has been satisfied, released or discharged; 

it is based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable.” 

The parties rely only on the final clause—when prospective 

application of the judgment is inequitable due to changed 

circumstances. Two elements are inherent in this clause: (1) 

that the judgment has prospective application; and (2) that 

circumstances have changed to make that application inequitable.

Neither element is satisfied here.

a. The Cy Pres Provision Does Not Have Prospective 

Effect.

“Rule 60(b)(5) allows a court to amend any judgment that has 

prospective effect.” Kapar v. Islamic Republic of Iran, No. 2-

cv-78, 2015 WL 2452754, at *3 (D.D.C. May 22, 2015) (quotation 
51

marks omitted). “Although the principal significance of this 

portion of the rule is with regard to injunctions, it is not 

confined to that form of relief, nor even to relief that 

historically would have been granted in courts of equity.” 11 

Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 2863 (3d ed. 2015)). A judgment may also be 

prospective only in part, in which case Rule 60(b)(5) could 

permit modification only of the portion of the judgment that has 

prospective effect. Cf. Pennsylvania v. Wheeling & Belmont 

Bridge Co., 59 U.S. 421, 431 (1855) (in a decision that forms 

the foundation for the changed-circumstances doctrine, the 

Supreme Court found that a prior judgment ordering the removal 

of a particular bridge could be reconsidered insofar as the 

prior judgment “direct[ed] the abatement of the obstruction,”

but portions of the judgment regarding payment of costs were not 

subject to reconsideration). 

The D.C. Circuit has described the prospective-effect 

requirement as follows:

Virtually every court order causes at least some 

reverberations into the future, and has, in that 

literal sense, some prospective effect; even a money 

judgment has continuing consequences, most obviously 

until it is satisfied, and thereafter as well inasmuch 

as everyone is constrained by his or her net worth. 

That a court’s action has continuing consequences, 

however, does not necessarily mean that it has 

‘prospective application’ for the purposes of Rule 

60(b)(5). 
52

Twelve John Does, 841 F.2d at 1138. Reviewing the Supreme 

Court’s decision in Wheeling & Belmont, as well as a subsequent 

decision, United States v. Swift & Co., 286 U.S. 106 (1932), the 

D.C. Circuit concluded that “the standard we apply in 

determining whether an order or judgment has prospective 

application within the meaning of Rule 60(b)(5) is whether it is 

‘executory’ or involves ‘the supervision of changing conduct or 

conditions.’” Twelve John Does, 841 F.2d at 1139; see Swift, 286 

U.S. at 114 (“A continuing decree of injunction directed to 

events to come is subject always to adaptation as events may 

shape the need,” but will be found to be continuing only if it 

“involve[s] the supervision of changing conduct or conditions 

and [is] thus provisional and tentative”). Accordingly, the D.C. 

Circuit concluded that an order dismissing the Attorney General 

as a party to a prison-conditions lawsuit involving District of 

Columbia inmates “did not have the requisite prospective 

application”: “The order did not compel him to perform, or order 

him not to perform, any future act; it did not require the court 

to supervise any continuing interaction between him and the 

other parties to the case; rather, it definitively discharged 

the Attorney General from any further involvement in the case.” 

Twelve John Does, 841 F.2d at 1139. By contrast, a prototypical 

example of a consent decree that is prospective under Rule 

60(b)(5) is one that resolved a church’s challenge to the denial 
53

of building permits by allowing construction with limitations: 

“[I]t imposes ongoing restrictions on Northridge’s ability to 

build or undertake various activities, all of which are 

supervised by the district court.” Northridge Church v. Charter 

Twp. of Plymouth, 647 F.3d 606, 613 (6th Cir. 2011).

The application of these principles to the case at bar is 

somewhat novel. “The consensus among Courts of Appeal, including 

the D.C. Circuit, is that a claim for money damages is not 

‘prospective’ for the purposes of Rule 60(b)(5).” Kapar, 2015 WL 

2452754, at *3; see also, e.g. Twelve John Does, 841 F.2d at 

1138; Stokors S.A. v. Morrison, 147 F.3d 759, 762 (8th Cir. 

1998); Marshall v. Bd. of Educ., 575 F.2d 417, 425 (3d Cir. 

1978); Ryan v. U.S. Lines Co., 303 F.2d 430, 434 (2d Cir. 1962).

The cy pres provision of the Agreement addresses the final step 

in the payment of damages. Thus, in one sense, it is an 

execution of the award of money damages, not a prospective 

judgment.

The cy pres provision arguably has some characteristics of a 

prospective order, however, insofar as the distribution process 

requires Class Counsel to solicit and recommend cy pres 

recipients and creates an administrative task for the Court to 

approve the recommendations. In that regard, Class Counsel 

pointed the Court to the D.C. Circuit’s decision in Pigford, 292 

F.3d 918, in which the D.C. Circuit applied Rule 60(b)(5) to a 
54

damages-distribution process very similar to the Non-Judicial 

Claims Process in this case. The D.C. Circuit did not discuss 

the prospective-effect requirement in applying Rule 60(b)(5) in 

Pigford, but it was dealing there with a request to reconsider 

deadlines that very clearly had prospective effect. If those 

deadlines were not modified, they would have barred a number of 

class members from participating in the claims process under the 

settlement, even though their failure to meet deadlines was due 

to their counsel’s apparent malpractice. See id. at 925–27. 

Ultimately, the cy pres provision in this case lacks this type 

of binding effect on a party’s future behavior that makes a 

judgment prospective within the meaning of Rule 60(b)(5). It 

does not, in the language of the D.C Circuit, “compel [anyone] 

to perform, or order [anyone] not to perform, any future act; it

d[oes] not require the court to supervise any continuing 

interaction between [anyone] and the other parties to the case.”

Twelve John Does, 841 F.2d at 1139. Although Class Counsel has a 

limited responsibility to propose recipients under the 

Agreement, that is not the same thing as a party to the case 

being subject to limitations on future conduct, and courts have 

emphasized the need for such limitations if a judgment is to be 

considered prospective. See, e.g., Comfort v. Lynn Sch. Comm., 

560 F.3d 22, 28 (1st Cir. 2009) (“[W]e have limited the 

provision’s application to injunctions and consent decrees that 
55

involve long-term supervision of changing conduct or 

conditions.”) (quotation marks omitted). The cy pres portions of 

the Agreement are thus akin to unpaid damages: The mere fact 

that they have yet to be paid out, leaving some administrative 

responsibilities to be executed, does not render them 

prospective. See Kapar, 2015 WL 2452754, at *3; Marshall, 575 

F.2d at 425 n.7 (“A ‘prospective’ injunction envisions a 

restraint of future conduct, not an order to remedy past wrongs 

when the compensation payment is withheld from the beneficiaries 

until some subsequent date.”).8 The Court therefore finds that 

the cy pres provision of the Agreement is not prospective within 

the meaning of Rule 60(b)(5), making that Rule inapplicable.

b. The Parties Have Not Demonstrated Changed 

Circumstances Within the Meaning of Rule 60(b)(5).

Even if the cy pres provision was prospective, it is not clear 

that the larger-than-expected excess is the type of factual 

 8 It is telling that Class Counsel and the government have argued 

repeatedly that the modification proposed by Class Counsel would 

have no binding effect on the legal rights of any class member. 

That argument, which the Court accepted, served to support 

findings that class members lacked standing to intervene, 

Keepseagle I, 2014 WL 5796751, at *11–14; that Rules 23(a)(4) 

and 23(c)(1)(C) did not apply to police the adequacy of a class 

representative at this stage of proceedings, Keepseagle II, 2015 

WL 1851093, at *3–5; and that Rule 23(e) did not require the 

provision of renewed notice and the holding of another fairness 

hearing, Keepseagle III, 2015 WL 1969814, at *4–7. That the 

proposed modification would have no binding effect on the legal 

rights of class members in the future is consistent with the 

Court’s finding that the cy pres provision it sought to modify 

has no prospective effect.
56

change that warrants relief under Rule 60(b)(5). Rule 60(b)(5) 

requires truly changed circumstances, not a difference in degree 

of what was expected that renders a judgment less efficient, and 

certainly not mere disagreement with the judgment: “We are 

asking ourselves whether anything has happened that will justify 

us now in changing a decree. The injunction, whether right or 

wrong, is not subject to impeachment in its application to the 

conditions that existed at its making. We are not at liberty to 

reverse under the guise of readjusting.” Swift, 286 U.S. at 119. 

The inquiry is twofold: “[A] party seeking modification . . . 

bears the burden of establishing that a significant change in 

circumstances warrants revision. . . . If the moving party meets 

this standard, the court should consider whether the proposed 

modification is suitably tailored to the changed circumstance.” 

Rufo, 502 U.S. at 383. The initial factor may be met “by showing 

either a significant change . . . in factual conditions or in 

law.” Id. at 384.

A change in factual conditions—the only change pressed here—

may support modification when it “make[s] compliance with the 

decree substantially more onerous,” when “a decree proves to be 

unworkable because of unforeseen obstacles,” or “when 

enforcement of the decree without modification would be 

detrimental to the public interest.” Id. For example, where a 

state agency was under a consent decree regarding housing 
57

facilities, modification of that decree was warranted where it 

was not possible to find appropriate housing facilities for 

certain patients. See id. (citing N.Y. State Ass’n for Retarded 

Children v. Carey, 706 F.2d 956, 969 (2d Cir. 1983)). Another 

example cited by the Supreme Court was where modification of a 

prison-conditions decree was necessary to avoid the need to 

release individuals accused of violent felonies. See id. at 385 

(citing Duran v. Elrod, 760 F.2d 756, 759–61 (7th Cir. 1985)). 

Unlike in these decisions, nothing about the need to distribute 

significantly more money via a cy pres provision is unworkable 

or against the public interest. To be sure, it may be difficult 

to distribute under the existing cy pres provision and it may 

result in an inefficient distribution in view of the need to 

distribute the funds all at once and in equal shares, but the 

essence of the provision would still be served: The leftover 

funds would go to the types of organizations the parties 

initially contemplated when they entered the Agreement.

The D.C. Circuit’s decision in Pigford, 292 F.3d 918 

illustrates this distinction. There, the Court addressed the 

application of Rule 60(b)(5) to a substantially similar 

settlement of the claims of African-American farmers. Class 

counsel in that case had failed adequately to represent the many 

class members whom it was obliged to assist in proving their 

claims under that settlement’s claims process. Id. at 925. The 
58

failure to assist the class through that process was “an 

‘unforeseen obstacle’ that makes the decree ‘unworkable’” 

because it resulted in many class members missing the deadline 

for filing claims. Id. at 927. In Pigford, the very purpose of 

the settlement—distributing damages to class members—was totally 

undermined by the lawyers’ actions. The larger-than-expected 

excess in this case does not undermine the purpose of the 

settlement in the same way, even if a modification would make 

the settlement more efficient. Accordingly, circumstances have 

not changed in a manner that would trigger the application of 

Rule 60(b)(5).

c. If The Parties Had Demonstrated Changed 

Circumstances, the Keepseagles’s Proposal Is Not 

Tailored to that Change.

It is not enough simply to show that the judgment has 

prospective effect and that circumstances have changed. “Once a 

moving party has met its burden of establishing either a change 

in fact or in law warranting modification of a consent decree, 

the district court should determine whether the proposed 

modification is suitably tailored to the changed circumstance.” 

Rufo, 502 U.S. at 391. A change in circumstances is not a free 

pass to rewrite a consent decree; rather “the focus should be on 

whether the proposed modification is tailored to resolve the 

problems created by the change in circumstances.” Id. The D.C. 

Circuit has applied this rule stringently, rejecting an attempt 
59

in Pigford to correct Class Counsel’s failure to represent class 

members through the claims process by “vesting arbitrators with 

generic authority to revise deadlines ‘so long as justice 

requires.’” Pigford, 292 F.3d at 927. “Whatever tailoring method 

the district court ultimately adopts,” the Circuit held, “must 

preserve the essence of the parties’ bargain.” Id.

Under this standard, even if the cy pres provision were

prospective and the parties had demonstrated changed 

circumstances under Rule 60(b)(5), the Keepseagles’s proposals 

would be inappropriate subjects of a Rule 60(b)(5) motion. The 

changed circumstances cited by the parties are the fact that far 

more money is leftover than was expected. This would render

application of the judgment inequitable, if at all, by virtue of 

the difficulty it causes under the existing cy pres distribution 

plan, which requires an immediate distribution in equal shares 

to a limited set of entities. Neither of the Keepseagles’s 

proposals—an immediate pro rata distribution to successful 

claimants or a second claims process followed by a pro rata 

distribution—are tailored to those changed circumstances.

Although the Court is very sympathetic to the perspective of 

class members that the larger-than-expected excess provides an 

opportunity to distribute more compensation to class members, 

the goal of Rule 60(b)(5) is to “preserve the essence of the 

parties’ bargain,” while accommodating the changed circumstance. 
60

Pigford, 292 F.3d at 927. If, as the D.C. Circuit held, it was 

not properly tailored in Pigford for a court to respond to class 

counsel’s representational failings that caused missed deadlines 

by permitting the arbitrators to extend the deadlines as justice 

required, id., it is surely not tailored to respond to a largerthan-expected excess by deleting the entire cy pres provision

that the parties included in the Agreement, did not object to, 

and did not appeal from, and replace it with a term directing a 

very different disposition of the leftover funds. Whether due to 

concern with ensuring that excess funds would be used to provide 

some indirect benefit to those who did not participate in the 

claims process, or the government’s concern that a distribution 

process that could result in Track A claims exceeding $50,000 in 

the event of a surplus might lead to pressure to provide 

similarly higher compensation to participants in the settlements 

involving other farmers, the parties specifically agreed upon a 

cy pres remedy for the disposition of excess funds. Whatever the 

reasons for the provision initially, the Court would not be 

empowered to undo the bargain entirely, even if Rule 60(b)(5) 

were otherwise applicable.

2. The Keepseagles Have Not Demonstrated the 

Extraordinary Circumstances Necessary to Invoke Rule 

60(b)(6).

Federal Rule of Civil Procedure 60(b)(6) provides: “On motion 

and just terms, the court may relieve a party or its legal 
61

representative from a final judgment, order, or proceeding for . 

. . any other reason that justifies relief.” To avoid allowing 

this exception to swallow the rule, “[r]elief under Rule 

60(b)(6) . . . require[s] a showing of ‘extraordinary 

circumstances.’” Kapar, 2015 WL 2452754, at *3 (quoting Kramer 

v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007)); see also Twelve 

John Does, 841 F.2d at 1140 (Rule 60(b)(6) “should be only 

sparingly used”) (quotation marks omitted). Such extraordinary 

circumstances have been found due to “an adversary’s failure to 

comply with a settlement agreement that was incorporated into a 

court’s order, fraud by the ‘party’s own counsel, by a

codefendant, or by a third-party witness[,]’ or ‘when the losing 

party fails to receive notice of the entry of judgment in time 

to file an appeal.’” More v. Lew, 34 F. Supp. 3d 23, 28 (D.D.C. 

2014) (quoting 11 Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 2864 (3d ed. 2015))

(alterations in original); see also, e.g., Austin v. Donahoe, 

No. 5-1824, 2014 WL 6779132, at *3 (D.D.C. Dec. 2, 2014) 

(finding extraordinary circumstances where a party “asserts that 

[her counsel] not only was negligent in failing to oppose the 

[defendant’s] motion, resulting in the dismissal of her case, 

but that he consistently misled her into believing that her case 

was progressing when, in fact, it had long since been removed 

from the Court’s docket”). Finally, “[c]laims under Rule 
62

60(b)(6) must not be ‘premised on one of the grounds for relief 

enumerated in clauses (b)(1) through (b)(5).’” Green, 287 F.R.D. 

at 109 (quoting Liljeberg v. Health Servs. Acquisition Corp., 

486 U.S. 847, 863 (1988)). 

The Keepseagles appear to rely on the same argument they made 

under Rule 60(b)(5)—that the larger-than-expected excess is 

extraordinary. This is simply insufficient for relief under Rule 

60(b)(6), which cannot be premised on the bases enumerated in 

other portions of the Rule. See Green, 287 F.R.D. at 109. Even 

if the larger-than-expected excess were a cognizable reason for 

modification under Rule 60(b)(6), all parties to this case chose 

the terms of the Agreement, which included the cy pres terms. 

That they no longer like those terms because of factual 

developments does not constitute an extraordinary circumstance, 

and Rule 60(b)(6) “may not be employed simply to rescue a 

litigant from strategic choices that later turn out to be 

improvident.” Salazar ex rel. Salazar v. District of Columbia, 

633 F.3d 1110, 1120 (D.C. Cir. 2011) (quotation marks omitted).

There has been no suggestion of the kinds of extraordinary 

representational failings or complete lack of notice that has 

animated prior grants of relief under Rule 60(b)(6). 

Accordingly, Rule 60(b)(6) does not provide an avenue for 

modification.
63

C. The Settlement Agreement Permits Its Own Modification 

Only with the Consent of “the Parties,” Not Just Class 

Counsel and the Defendant.

The final legal avenue that was proposed lies in the Agreement 

itself. The Agreement’s modification provision states: “This 

Settlement Agreement may be modified only with the written 

agreement of the Parties and with the approval of the District 

Court, upon such notice to the Class, if any, as the District 

Court may require.” Agreement ¶ XIV (p. 49). The government does 

not oppose the use of this provision for Class Counsel’s 

proposed modification, so Class Counsel asks the Court to rely 

on it to grant its motion. 

The Court briefly notes that, as all parties appear to agree,

the Court retains jurisdiction to enforce this provision. 

“Federal courts are courts of limited jurisdiction” and “[i]t is 

to be presumed that a cause lies outside this limited

jurisdiction.” Kokkonen, 511 U.S. at 377. As the Court has 

analyzed previously, the Court’s ancillary jurisdiction over the 

Agreement is limited. See Order Denying LaBatte Mot., ECF No. 

692 at 8 (citing Kokkonen, 511 U.S. at 379–80). “[D]istrict 

courts enjoy no free-ranging ‘ancillary’ jurisdiction to enforce 

consent decrees, but are instead constrained by the terms of the 

decree and related order.” Pigford, 292 F.3d at 924. Although 

the Agreement’s retention-of-jurisdiction provision did not 

specifically mention the modification provision, Agreement ¶¶ 
64

V.A–B (pp. 40–42), the modification provision can only be used

with Court involvement and approval, id. ¶ XIV (p. 49), so any 

interpretation of the Agreement as withholding jurisdiction to 

enforce the modification provision would render that provision a 

complete nullity. Unlike the requests for review of 

determinations made during the Non-Judicial Claims Process, 

moreover, exercising jurisdiction over requests for modification

would not contradict another of the Agreement’s terms. See Order 

Denying LaBatte Mot., ECF No. 692 at 9–12. Therefore, although 

the Court’s jurisdiction at this stage of proceedings is 

limited, that jurisdiction extends to approving a modification 

that is properly reached.

Class Counsel’s “unopposed” motion does not meet the 

substantive requirements for obtaining modification under the 

Agreement, however. Although the modification provision requires 

consent of “the Parties,” the three represented groups—the 

government, Class Counsel, and the Keepseagles—all seem to have 

operated under the assumption that the provision requires

consent of Class Counsel and the government alone. The

Agreement, however, defines “the Parties” as “the Plaintiffs and 

the Secretary,” Agreement ¶ II.DD (p. 10), and further defines 

“the Plaintiffs” as “the individual plaintiffs named in 

Keepseagle v. Vilsack, No. 1:99CV03119 (D.D.C.), the members of 

the Class, and the Class Representatives.” Id. ¶ II.EE (p. 10). 
65

The plain language of the Agreement, therefore, does not support 

a reading that would allow Class Counsel to enter unilaterally 

into an “unopposed” agreement to modify. Here, the Court is

presented with stark disagreement, including a class 

representative and named plaintiff who has obtained separate 

counsel and specifically opposed the proposed modification.

The Court raised this issue during the June 29, 2015 hearing 

and gave the parties time to review the Agreement before 

responding. The parties’ responses were unconvincing. The 

Agreement plainly does not say that a modification may be 

approved as “unopposed” when a class representative—who happens 

to be the named plaintiff who gives this lawsuit its name—has 

expressed written opposition through separate counsel.9 Class 

Counsel and the government ultimately rested on the position 

that Class Counsel serves as a representative of the entire 

class and may therefore enter into an Agreement on behalf of 

“the Plaintiffs.” This certainly squares with the general nature 

of representative litigation, and the usual case would involve a 

modification proposal by Class Counsel to which no class member 

raised any objection. In that circumstance, the Court could—as 

it did in 2012—approve the modification. But the posture of this 

 9 Indeed, Class Counsel’s response to certain of the Court’s 

questions made clear the vital status of, at a minimum, the 

class representatives, as “parties” to this case. See Transcript 

of June 29, 2015 Hearing, ECF No. 806 at 41:16–47:17. 
66

case demonstrates that Class Counsel’s view does not represent 

the view of even all of the class representatives. The parties 

in drafting this Agreement chose to require the consent of “the 

Parties,” defined to include more than just Class Counsel and 

the government. This choice must be given effect, much as Class 

Counsel and the government have argued strenuously that the 

Court must give effect to the Agreement’s cy pres provision. 

As the Court’s discussion with Class Counsel regarding another 

provision of the Agreement illustrated, even the 

representational nature of class-action litigation counsels in 

favor of recognizing that the class representatives must also be 

on board with a proposal:

MR. SELLERS: Okay. In the middle of that paragraph it

says, “Class counsel and class representatives, as 

defined earlier, will be appointed to represent the 

class in its pursuit of monetary relief under Rule 

23(b)(3),” which is consistent with the introduction I 

mentioned, that is, we and the class representatives 

have been appointed to represent the class, whether 

the class is individually or separately or 

collectively in connection with this agreement and the 

pursuit of monetary relief.

THE COURT: All right. Does that mean that all class

representatives must agree?

MR. SELLERS: Do all class representatives, as opposed 

to the individuals?

THE COURT: Right.

MR. SELLERS: Um...

THE COURT: Ms. Keepseagle was a class representative, 

correct? 
67

MR. SELLERS: Right.

* * *

THE COURT: So does this mean, then -- putting aside 

parties and plaintiffs, putting aside that plain 

language -- does this plain language mean that all 

class representatives must, indeed, approve a request 

for modification?

MR. SELLERS: I don’t think so, because the –

THE COURT: What number must approve it, then, if not 

all, and where does it say so? 

MR. SELLERS: I don’t think it contemplates a majority 

or minority. It treats them as a group.

THE COURT: Which begs the question, then: Do all 

members of that group need to approve? 

MR. SELLERS: Right. 

THE COURT: And the answer is? 

MR. SELLERS: The answer is: I don’t think the 

agreement provides that they all have to agree.

Transcript of June 29, 2015 Hearing, ECF No. 806 at 66:10–67:19 

(discussing Agreement, ECF No. 621-2 ¶ VI.A.7 (p. 43).10

The Court agrees that the modification provision would be

absurd were it to recognize the consent of “the Parties” only 

 10 It is telling that Class Counsel could not clearly answer the 

following question about how the Court could interpret the 

modification provision: “So the Court would have to say 

something like this: Notwithstanding the plain language of the 

agreement that identifies plaintiffs as the individual 

plaintiffs named in Keepseagle v. Vilsack, the members of the 

class and class representatives, notwithstanding that, comma, 

the true plaintiffs are -- now how would you finish that 

sentence?” Transcript of June 29, 2015 Hearing, ECF No. 806 at 

54:21–55:1.
68

upon written consent from every single member of the Class. The 

Agreement, as Class Counsel argued, is representational in 

nature. But the representational nature of the case does not end 

with Class Counsel. This Court appointed class representatives 

for a reason, and the breadth of the modification provision 

counsels in favor of requiring their consent, as do the other 

portions of the Agreement cited by Class Counsel during the June 

29, 2015 hearing. Were the Court presented with an agreement to 

which all class representatives agreed, Class Counsel’s 

assertions regarding the representational nature of this 

litigation would be convincing. Because the Court is not

currently presented with such an agreement, it cannot grant 

relief under the Agreement’s modification provision at this 

time.11

III. Conclusion

For the foregoing reasons, the Court DENIES the pending 

motions for modification of the Agreement. The Agreement speaks 

 11 The Keepseagles indicated in one of their pleadings that they 

may ultimately prefer Class Counsel’s proposal to the existing 

Agreement, if the choice comes down to the two options alone. 

See Keepseagle Opp., ECF No. 785 at 15–20. This conditional 

statement is not, in the Court’s view, sufficient to constitute 

consent of “the Parties.” During the June 29, 2015 hearing, 

moreover, one of the Keepseagles’s attorneys expressed openness 

to renewed negotiations with the government and Class Counsel, 

and also seemed to hint at potential appellate proceedings. In 

the event the case returns to this Court with this Opinion’s 

legal conclusions intact, the Parties will be permitted time to 

present whatever agreement they deem appropriate.
69

directly to this issue and existing doctrine regarding cy pres

cannot overrule a final agreement that was neither objected to

nor appealed from. Rule 60(b)(5) cannot be used to alter the 

Agreement because the cy pres provision does not have 

prospective effect and circumstances have not changed such that 

the provision is inequitable. Rule 60(b)(6) does not apply 

because the Keepseagles have not cited any “extraordinary 

circumstance” that could trigger its application. Finally, on 

the current record, the Court cannot grant Class Counsel’s 

motion under the Agreement itself because the Agreement requires 

consent of more than just Class Counsel and the government.

These legal rulings are not the end of the matter, however. 

Over the past year, the Court has issued four published Opinions 

that addressed a number of legal issues. Some of these 

conclusions will likely be reviewed by appellate courts. The 

simplest resolution, however, is the same path that took this 

case from one of the hardest-fought cases on this Court’s docket

to one of the more monumental civil-rights settlements in recent 

memory. The Parties have the ability to reach a compromise that 

the Court can approve and which would give this case finality. 

In considering this option, the Executive Branch would do well 

to consider the remarks of President Obama, given in June 2014 

while on the Standing Rock Sioux Reservation (the tribe to which 

Marilyn Keepseagle and many other class members belong):
70

I know that throughout history, the United States 

often didn’t give the nation-to-nation relationship 

the respect that it deserved. So I promised when I ran 

to be a President who’d change that -- a President who 

honors our sacred trust, and who respects your 

sovereignty, and upholds treaty obligations, and who 

works with you in a spirit of true partnership, in 

mutual respect, to give our children the future that 

they deserve.

* * *

We’ve responded and resolved longstanding disputes.

George Keepseagle is here today. (Applause.) A few 

years ago, my administration reached a historic 

settlement with George and other American Indian 

farmers and ranchers.

* * *

There’s no denying that for some Americans the deck 

has been stacked against them, sometimes for 

generations. And that’s been the case for many Native 

Americans. But if we’re working together, we can make 

things better. We’ve got a long way to go. But if we 

do our part, I believe that we can turn the corner. We 

can break old cycles.

Remarks by the President at the Cannon Ball Flag Day 

Celebration, The White House (June 13, 2014), https://www.

whitehouse.gov/photos-and-video/video/2014/06/13/presidentobama-speaks-cannon-ball-flag-day-celebration#transcript.

* * *

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

 United States District Judge

 July 24, 2015