Keeps Eagle v. Veneman

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
MARILYN KEEPSEAGLE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 99-3119 (EGS)
)
TOM VILSACK, Secretary, U.S. )
Department of Agriculture, )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

Pending before the Court are two motions to intervene in this

case. Both groups of putative intervenors seek to participate in

proceedings regarding the Court’s consideration of a pending

motion to modify the cy pres provisions of the 2011 agreement

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

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

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

to intervene on the basis of their concern that the proposed

modification will adversely affect their opportunity to receive

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

obtained compensation under the Agreement (calling themselves

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

concern that Class Counsel has failed to request a modification

that would provide for additional payments to them.
 Both motions raise questions regarding the requirements for

intervening in post-judgment proceedings involving cy pres

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

fund to distribute any leftover funds. That portion of the

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

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

to intervene to address whether cy pres is appropriate in the

first instance. The narrow issue before the Court is

modification: Should the cy pres provisions of the Agreement be

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

intervenors seek to be heard as parties.

The Choctaw Movants desire to maintain the status quo. They

oppose the proposed changes to the procedures for distributing

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

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

class nor otherwise connected to the Agreement. The Choctaw

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

speculative that the proposed modification would harm, rather

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

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

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

benefit them or a class to which they belong.

The Great Plains Claimants desire to propose an entirely

different modification. They would remove the cy pres provisions

2
altogether and distribute the leftover funds to class members

who have already completed the claims process and received

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

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

object to the cy pres provisions or otherwise appeal the

approval of the Agreement, and then participating in the claims

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

cannot find that they retain a legal interest giving them

standing to intervene.

Upon consideration of the motions to intervene, the responses

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

the Court DENIES the motions.1

I. Background

A. The Parties Reach a Settlement Agreement.

Following over a decade of litigation, the parties to this

class action reached a Settlement Agreement. See Agreement, ECF

No. 621-2.2 The Agreement created a Compensation Fund (“the

1
The Court emphasizes that this Opinion does not resolve the
pending motion to modify the Agreement. Before any decision on
that request will be reached, the Court must determine whether
to direct notice of that motion to the class and hold a fairness
hearing (or other hearing at which class members may be heard).
The Court has directed the parties to submit briefs on this
issue, Minute Order of October 20, 2014, and welcomes
participation by amici curiae whose perspectives may differ from
those of the parties.
2
The Agreement was modified in 2012 to alter provisions related
to the distribution of Track A and B awards, an issue that does

3
Fund”) of $680,000,000 “for the benefit of the Class.” Id. ¶

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

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

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

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

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

Awards, to, or on behalf of, Class Members pursuant to the 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

not affect the issues currently pending before the Court. See
Mot. to Amend, ECF No. 621 at 1; Redline Changes to Agreement,
ECF No. 621-3. For clarity, the Court refers throughout this
Opinion to the version of the Agreement as modified in 2012.

4
assistance, or advocacy services to Native American farmers

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

The Class received notice of all relevant provisions of the

Agreement. The Claim Form provided to potential claimants

contained a section that required the claimant to acknowledge

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

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

been asserted against the Secretary by the proposed Class and

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

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

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

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

Claim Form also notified Track A claimants that they would be

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

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

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

the fact that participation would result in a resolution of the

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

3
See also id. ¶ X (pp. 51–52) (acknowledging that the Class is
“forever barred and precluded from prosecuting[] any and all
claims, causes of action, or requests for injunctive and/or
monetary relief, including, but not limited to, damages, tax
payments, debt relief, costs, attorney’s fees, expenses, and/or
interest, whether presently known or unknown, that have been or
could have been asserted in the Case by reason of, with respect
to, in connection with, or which arise out of, any matters
alleged in the Case that the Class Releasors, or any of them,
have against the Government Releasees, or any of them”).

5
remains in the Settlement Fund after all payments to class

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

one or more organizations that have provided agricultural,

business assistance, or advocacy services to Native Americans.”

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

B. The Court Approves the Agreement.

The parties first indicated to the Court that they had reached

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

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

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

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

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

approved the parties’ proposed notice to the Class, directed

that any objections to the Agreement be postmarked by no later

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

April 28, 2011. See id. at 3.

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

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

585. Class Counsel filed their motion seeking final approval of

the Agreement, which also responded to those objections, on

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

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

objector requested that his organizations be granted cy pres

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

6
noted that this request was premature. See Mot. for Final

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

preference that excess funds be used for outreach purposes and

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

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

that this desire was entirely consistent with the existing cy

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

63.

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

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

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

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

attended the fairness hearing, the Court found that the

Agreement was fair and reasonable and approved it pursuant to

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

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

C. Class Counsel Seeks to Modify the Agreement.

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

notifying the Court that nearly all distributions from the Fund

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

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

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

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

modification of the Agreement, which would have involved the

7
endowment of a new foundation “which could fund non-profit

organizations serving the needs of Native American farmers and

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

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

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

Choctaw Movants and the Great Plains Claimants to move to

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

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

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

proposed any modification to the Court and the hypothetical

proposal outlined by Class Counsel was opposed by the defendant.

Accordingly, the Court allowed the parties additional time to

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

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

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

modification proposes that 10% of the Cy Pres Fund be

distributed immediately to non-profit organizations “proposed by

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

following criteria:

(1) they must have “provided business assistance,
agricultural education, technical support, or
advocacy services to Native American farmers or
ranchers between 1981 and November 1, 2010 to
support and promote their continued engagement in
agriculture”; and

(2) they must be “either a tax-exempt organization
described in Section 501(c)(3) of the Internal

8
 Revenue Code . . . educational organization
described in Section 170(b)(1)(A)(ii) of the Code;
or an instrumentality of a state or federally
recognized tribe, including a non-profit
organization chartered under the tribal law of a
state or federally recognized tribe, that furnishes
assistance designed to further Native American
farming or ranching activities.”

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

The modification utilizes the remainder of the Cy Pres Fund to

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

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

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

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

years” and would be charged with disbursing the funds to “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

9
 and promote their continued engagement in
agriculture.”

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

Shortly before the motion to modify the Agreement was filed,

the Great Plains Claimants filed a renewed motion to intervene.

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

September 18, 2014, the Court denied without prejudice the

earlier motions to intervene of the Great Plains Claimants and

the Choctaw Movants and set a schedule for the briefing of

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

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

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

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

are now ripe for the Court’s consideration.

II. Applicable Law

A. Intervention as of Right

Requests to intervene as of right are governed by Federal Rule

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

permit intervention by any party who “claims an interest

relating to the property or transaction that is subject of the

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

practical matter impair or impede the movant’s ability to

protect its interest, unless existing parties adequately

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

10
a putative intervenor’s entitlement to intervention as of right

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

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

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

whether the applicant is so situated that the disposition of the

action may as a practical matter impair or impede the

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

the applicant’s interest is adequately represented by the

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

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

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

B. Permissive Intervention

Requests for permissive intervention are governed by Federal

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

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

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

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

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

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

shall consider whether the intervention will unduly delay or

prejudice the adjudication of the rights of the original

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

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

11
III. The Choctaw Movants’ Request to Intervene

The Choctaw Movants seek to intervene “for the limited purpose

of opposing Plaintiffs’ motion to modify the cy pres provisions

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

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

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

violation of the doctrine of prudential standing, the Choctaw

Movants are not entitled to intervene.

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

The Choctaw Movants assert that they qualify for intervention

as of right because they are potential beneficiaries under the

existing cy pres provisions and thus have an interest in

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

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

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

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

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

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

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

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

challenges the Choctaw Movants’ standing under Article III, as

well as their establishment of an interest in the litigation

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

12
challenges the Choctaw Movants’ standing under Article III and

the doctrine of prudential standing.

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

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

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

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

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

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

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

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

ought not—address Rule 24(a). Id.

1. The Choctaw Movants Lack Article III Standing.

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

demonstrate Article III standing.” In re Endangered Species Act

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

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

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

connection between the injury and the conduct complained of; and

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

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

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

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

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

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

13
Int’l, 133 S. Ct. 1138, 1147 (2013) (quotation marks omitted).

The requirement that an injury be imminent “cannot be stretched

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

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

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

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

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

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

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

believe that the possibility that they currently qualify for and

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

possibility that under the proposed modification they would

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

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

disagrees because any injury will arise only if a multitude of

speculative events occur.

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

demonstrated by the existence of an economic interest, so long

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

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

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

example, where a lawsuit seeking to place Mongolian wildlife on

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

from bringing their trophies home,” the Mongolian government had

14
standing to intervene based on the direct negative impact that

would result from reducing the number of hunters going to

Mongolia and paying hunting fees to the government. Fund for

Animals, 322 F.3d at 733.

The Choctaw Movants have no existing involvement with the Cy

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

approved to receive one, or had their eligibility assessed.

Accordingly, modification of the cy pres provision would not

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

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

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

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

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

which putative intervenor had contracts); Natural Resources

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

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

applicable to putative intervenor’s request for renewal of its

uranium-processing license).

Indeed, the Choctaw Movants are no different from any other

organization: They could, upon satisfaction of four criteria,

receive a cy pres distribution of an indeterminate amount. They

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

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

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

15
business assistance, or advocacy services to Native American

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

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

be “approv[ed] by the Court.” Id.

The government and Class Counsel question whether the Choctaw

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

first, the parties assert that the Jones Academy Foundation is

likely an educational institution and that the Choctaw Nation is

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

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

counter that the Jones Academy Foundation is separate from the

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

that tribes are included within the term “non-profit

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

assert that the Choctaw Movants put forth no evidence

demonstrating that they “provided agricultural, business

assistance, or advocacy services to Native American farmers

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

9.

The Choctaw Movants correctly note that the Court must accept

as true their factual allegations regarding the basis for

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

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

Accordingly, their allegation that they provided qualifying

16
assistance to Native American farmers during the relevant time

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

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

the allegation that the Jones Academy Foundation is a separate

entity that grants scholarships, rather than a fundraising arm

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

Academy Foundation meets the first two eligibility criteria.

The Choctaw Nation, however, cannot establish that it is

eligible because the Agreement does not include tribal

governments as potential recipients of cy pres distributions.

The Agreement defines potential cy pres recipients as “non-

profit organization[s], other than a law firm, legal services

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

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

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

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

possesses the attributes of a classic non-profit organization

notwithstanding that it is also a governmental sovereign.”

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

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

organization” intending to include tribal governments without

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

subject matter of the Agreement relates to Native Americans, and

the provision at issue sought to identify a class of entities

17
that could be eligible for grants to benefit Native American

farmers and ranchers. If the Agreement was intended to include

tribes, it would have said so.

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

a way that excludes tribes, recognizing that they are distinct

entities.4 The Choctaw Nation argues that this usage is

inconsistent, relying on a footnote in Seminole Tribe v.

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

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

4
See, e.g., Blue Lake Rancheria v. United States, 653 F.3d 1112,
1118–19 (9th Cir. 2011) (citing a House Conference Report
regarding an amendment to the Federal Unemployment Tax Act,
which noted that “[g]enerally, Indian tribes are not eligible
for the reimbursement treatment allowable to nonprofit
organizations”); Mason ex rel. Heiser v. Morrisette, 403 F.3d
28, 31 (1st Cir. 2005) (referring to regulations, promulgated by
the Department of Housing and Urban Development and the
Environmental Protection Agency pursuant to 42 U.S.C. § 4852d,
which defined the term “lessee” to include “any entity that
enters into an agreement to lease, rent, or sublease . . .
including . . . Indian tribes, and nonprofit organizations”);
Am. Jewish Congress v. Corp. for Nat’l & Cmty. Serv., 323 F.
Supp. 2d 44, 47 (D.D.C. 2004) (noting that an AmeriCorps program
“is administered through grantees such as state and local
governments, Indian tribes, and non-profit organizations”),
rev’d on other grounds, 399 F.3d 351 (D.C. Cir. 2005); SEC v.
Bear, Stearns & Co., No. 03 Civ 2937, 2004 WL 885844, at *6
(S.D.N.Y. Mar. 25, 2004) (grant-making entity created by
settlement of litigation made “[t]he following persons and
entities . . . eligible to apply for . . . grants: Non-profit
organizations and educational institutions; State agencies,
federal and local government units, and Indian tribes”);
Atlantic, Cape May & Parts of Burlington, Ocean & Cumberland
Cntys. Bldg. Trades Council v. City of N. Wildwood, No. 77-2609,
1979 WL 2018, at *6 (D.N.J. May 18, 1979) (reciting statutory
definition of “a grantee” under a particular statute, which
included “any state or political subdivision thereof, indian
tribe, or private or public non-profit organization”).

18
activities would “be invested for the betterment of the Indian

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

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

could be said to fall within the spirit of its permissive

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

governments operate for purposes that are similar to those of

charitable organizations, they are distinct entities.5

Regardless of whether the Choctaw Movants satisfy those

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

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

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

decision, so the Choctaw Movants could obtain a cy pres

distribution only if Class Counsel were to exercise its

discretion to recommend them. This is problematic for standing,

as the Supreme Court is “reluctant to endorse standing theories

that require guesswork as to how independent decisionmakers will

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

5
The Choctaw Nation briefly mentions that the Government
Accountability Office has indicated that federal agencies
recently awarded grants to twenty-four non-federally-recognized
tribes because they were “organized as nonprofit organizations
and so were ‘eligible to receive federal funding from any
program authorized to fund nonprofits.’” Reply, ECF No. 722 at 4
n.4 (quoting Government Accountability Office, Federal Funding
for Non-Federally Recognized Tribes 11 (April 2012), available
at http://www.gao.gov/products/GAO-12-348). Unlike the tribes
described in the report, however, the Choctaw Nation is
federally recognized. See Mem. in Supp. of Mot. to Intervene,
ECF No. 713 at 1.

19
thus hypothetical at best to assert that the Agreement will

result in any award to the Choctaw Movants.

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

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

Agreement provides for distribution in equal shares of the $380

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

number of qualifying organizations would be recommended by Class

Counsel, resulting in a large distribution to the Choctaw

Movants, it is equally conceivable that the opportunity to

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

applications from an array of eligible organizations, resulting

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

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

award they would receive—render it highly speculative to assert

that the proposed modification would harm them.

This uncertainty is compounded by uncertainty regarding the

effect of the modification. Under the proposed modification,

eligibility to receive a distribution of the initial 10% is

contingent upon the discretion of Class Counsel to make

recommendations, but the modification makes clear that tribes

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

modification therefore increases the likelihood that the Choctaw

Movants qualify at the initial phase. The modification similarly

broadens the eligibility criteria for the distribution of the

20
remaining 90% of the Cy Pres Fund, while also removing the

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

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

awards that the Choctaw Movants could receive under the

modification would differ negatively. The smaller amount of

money and laxer eligibility criteria applicable to the initial

10% distribution may make it likelier that Class Counsel would

propose smaller distributions to many organizations, but the

modification—unlike the existing Agreement—permits Class Counsel

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

just as likely that the Choctaw Movants would obtain a larger

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

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

Distributions from the trust could similarly be scaled in a

manner that could benefit the Choctaw Movants. Accordingly, the

modification may well result in a greater award for the Choctaw

Movants.

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

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

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

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

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

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

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

21
light of the Choctaw Nation’s failure to qualify as a “non-

profit organization” under the Agreement, however, any

opportunity to compete using the joint proposal on which the

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

Movants lose no opportunity to compete under the modification.

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

opportunity to compete when a putative applicant is foreclosed

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

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

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

Department of Defense challenged the Department’s decision not

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

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

of a statutorily conferred opportunity to compete for a

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

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

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

health centers that received funding from the Department of

Health and Human Services to challenge a decision to reduce

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

demonstrated that they would qualify to receive these funds,

they need not shoulder the additional burden of demonstrating

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

22
 The Choctaw Movants find themselves in a very different

situation. Under the modification, they retain every ability to

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

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

to compete, the competitive opportunity would neither disappear

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

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

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

discussion demonstrates, it is highly speculative to say that

the procedures under the modification harm rather than help the

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

Accordingly, even if the competitive-injury doctrine recognizes

injuries caused by adverse changes to procedures governing a

competition, the Choctaw Movants would not qualify because the

procedural changes are just as likely to improve their

competitive prospects. Accordingly, the Choctaw Movants do not

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

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

2. The Choctaw Movants Lack Prudential Standing.

Even if the Choctaw Movants suffered a lost opportunity to

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

seek to assert a legal right to compete under the existing

procedures for cy pres distribution that were created by a

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

23
distributed for the benefit of a class (of which they are not a

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

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

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

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

Agreement that do not belong to them.

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

afoul of the doctrine of prudential standing, which requires

that a party seeking to intervene in proceedings regarding the

interpretation of a contract must show that it is an intended

beneficiary of that contract; otherwise, “the basic point

remains that the contract does not protect their rights.”

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

Choctaw Movants assert that they do not actually seek to be

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

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

in opposition to the request for modification, which raises

disputes regarding the interpretation of various provisions of

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

2 at 3–4.

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

enforceable directly or in collateral proceedings by those who

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

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

24
U.S. 723, 750 (1975). The D.C. Circuit has read this to

“prohibit only incidental third party beneficiaries from suing

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

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

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

contracting parties intended to confer a benefit directly on the

third parties, but also whether the parties intended the third

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

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

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

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

“To prove intended beneficiary status, the third party must

show that the contract reflects the express or implied intention

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

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

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

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

individually” and may instead specify a particular class of

beneficiaries. Id. “A party has a cause of action as a third-

party beneficiary to a contract if the contracting parties

express an intent primarily and directly to benefit that third

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

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

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

25
Circuit recognized that a hospital was an intended third-party

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

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

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

hospital an absolute right to payment, the purpose of the

contract was to cover the costs of a medical service the

hospital had provided.

The Choctaw Movants argue that the Agreement was similarly

intended to create a trust of which they are intended

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

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

leftover settlement funds were to be distributed in equal

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

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

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

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

however, was never the intended target of the Agreement.

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

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

for the distribution of unclaimed settlement funds to non-

parties, the purpose is to put the funds to their “‘next best

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

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

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

26
object of applying the funds to the ‘next best’ class is to

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

maximizing the number of plaintiffs compensated.” Democratic

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

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

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

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

class when direct distribution is infeasible. This is nothing

like Vencor, where the contract was intended to provide payment

for services rendered by the third party.

The Agreement confirms that its purpose was geared toward the

Class. It settled claims of individuals who allegedly suffered

discrimination at the hands of the Department of Agriculture. In

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

provided a process for the distribution of that Fund to class

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

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

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

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

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

guiding Class Counsel to organizations that could use the money

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

Agreement contradicts this statement or hints that it was

27
actually intended to provide a legally enforceable benefit to

unrelated organizations.

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

permitted individuals who were direct beneficiaries of a trust

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

at 281 (consent decree that obligated employer to make pension-

related payments into a trust fund to be administered by the

airline pilots’ union could be enforced by former pilots who

claimed that the union failed to grant them required payments

because the consent decree created a trust for the benefit of

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

(Native Hawaiian seeking to enforce terms of trust holding

public lands “for the betterment of the conditions of native

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

funds held for someone else’s benefit.

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

the term “beneficiary” to describe the organizations that may

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

not trump the purposes of the cy pres doctrine and the

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

fact that those selected to be vehicles for distributing the

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

selection does not make them intended beneficiaries with legally

enforceable rights. Because the Choctaw Movants lack such

28
rights, they lack prudential standing to intervene to enforce

their preferred interpretation of the Agreement.

B. The Choctaw Movants May Not Intervene Permissively.

The Choctaw Movants’ lack of standing also dooms their request

for permissive intervention. The D.C. Circuit previously

indicated that it remained an open question whether standing is

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

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

recently settled that question, however. In Deutsche Bank

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

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

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

therefore circuit law that intervenors must demonstrate Article

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

the unanimous opinion) wrote separately to emphasize:

If we were authorized to dispense with the standing
requirement for a defendant-intervenor, then any
organization or individual with only a philosophic
identification with a defendant—or a concern with a
possible unfavorable precedent—could attempt to
intervene and influence the course of litigation. To
be sure, parties seeking intervention as of right
would still need to meet the specific standards
articulated in Rule 24(a), but district courts have
discretion to grant permissive intervention under Rule
24(b), which requires only that a party have a claim
or defense that shares with the main action a common
question of law or fact. Opening participation to
parties without standing would be quite troublesome in
direct review in the court of appeals, but intolerable
at the district court level, where individual parties
have substantial power to direct the flow of

29
 litigation and affect settlement negotiation. Our rule
requiring all intervenors to demonstrate Article III
standing prudently guards against this possibility.

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

Accordingly, the Choctaw Movants’ lack of standing renders them

ineligible for permissive intervention.6

IV. The Great Plains Claimants’ Request for Intervention

The Great Plains Claimants seek to intervene “to ensure that

their interests are adequately represented in the context of any

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

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

to seek to modify the Agreement to provide for additional

payments to successful claimants, but that Class Counsel has

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

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

standing, the Great Plains Claimants are not entitled to

intervene.

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

As discussed above, putative intervenors “must . . .

demonstrate Article III standing,” Endangered Species Act

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

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

6
The Choctaw Movants also did not dispute the government’s
argument that permissive intervenors must demonstrate standing,
thereby conceding the argument. See, e.g., Inst. for Pol’y
Studies v. U.S. Cent. Intelligence Agency, 246 F.R.D. 380, 386
n.5 (D.D.C. 2007).

30
between the injury and the conduct complained of; and (3) the

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

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

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

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

Keepseagle class members, the Great Plains Claimants are direct

beneficiaries of the Settlement Agreement” and therefore “have

legally protected interests in the distribution of the Cy Pres

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

undisputed that none of the Great Plains Claimants objected to

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

appealed the Court’s approval of the Agreement.7 It is also

undisputed that the Great Plains Claimants participated in the

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

process included an affirmative choice to proceed under Track A,

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

7
For this reason, the Court cannot accept assertions that the
Great Plains Claimants “never agreed to participate in a
settlement which provides that a majority of the funds would not
go to class members” and that “[h]ad the original Settlement
Agreement contained such provisions, many would have objected
and/or opted out.” Reply, ECF No. 723 at 8; see also id. at 14
(citing Knight Declaration, ECF No. 723-1 ¶¶ 13–14; Petersen
Declaration, ECF No. 723-2 ¶¶ 13–14). The Great Plains
Claimants—like Class Counsel and the government—may not have
anticipated that so few claimants would come forward and
therefore may not have expected the Cy Pres Fund to be as large
as it is. All of the provisions creating this result, however,
were part of the proposed Agreement, of which the Great Plains
Claimants received notice and to which they did not object.

31
Ex. C to Agreement, ECF No. 576-1 at 63. They also acknowledged

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

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

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

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

reiterated these points and also made clear that all unclaimed

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

provided agricultural, business assistance, or advocacy services

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

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

notice, have intentionally satisfied their legal claims.

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

“An agreement between the parties dismissing all claims is the

equivalent of a decision on the merits and thus claims settled

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

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

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

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

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

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

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

15), X (pp. 51–52).

This conclusion is entirely consistent with the weight of

precedent regarding unclaimed settlement funds. “In approaching

32
the question of the appropriate distribution of such funds,

various courts have determined that ‘neither the class members

nor the settling defendants have any legal right to unclaimed or

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

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

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

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

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

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

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

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

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

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

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

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

settling defendants have any legal right to unclaimed or excess

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

settlement agreement is final, “all class members who presented

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

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

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

Wilson, 880 F.2d at 811–12.

Professor Rubenstein echoes this position in the most recent

edition of Newberg on Class Actions. Although there is some

33
dispute over the property status of unclaimed funds, “most

courts start from the proposition that neither the plaintiff

class nor the settling defendants have any right to the

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

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

unclaimed settlement funds are property of the class is

problematic, he posits:

The premise that the recovery fund is the property of
the plaintiff class is not quite right because the
settlement fund does not truly belong to the class as
a whole, but rather to the class members individually.
When a class member does not claim her share of the
fund, it is not at all obvious that her share
therefore belongs to the other class members. If, for
example, the government distributed a tax refund to a
group of taxpayers but some did not cash their checks,
no one would seriously propose that the unclaimed
funds are the property of, and should be distributed
pro rata to, those other citizens who received tax
refunds. . . . Additionally, an individual’s presence
as a class member in a class action hardly expands her
property rights to include the property of the other
class members. Even if it is the case that the
claiming class members have received less than the
full value of their claims by the settlement, that
fact does not magically make the nonclaimaints’
property theirs.

Id. § 12:30.

The Great Plains Claimants have received the full value of

their claims pursuant to the Agreement and thereby fully

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

ultimately successful at trial, could have resulted in higher

34
damages awards changes nothing. As the Court emphasized during

the April 28, 2011 fairness hearing:

There are risks in litigation as we all know. This
case could have gone to trial, presumably, and the
Plaintiffs not recovered anything. Class certification
was not a foregone conclusion, and you’re aware, I’m
sure, of other cases in this court, not before this
judge, wherein class certification issues were not as
successful as the class members would have liked. . .
. So there were no guarantees that this case went
forward at all.

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

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

plaintiffs accept less than their full claim of damages in

exchange for avoiding the risks of further proceedings and

trial. The Great Plains Claimants accepted that trade off,

consented to an Agreement that provided for a maximum award of

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

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

other class members who did not claim their award.

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

which rely on two distinguishable cases:

First, they correctly note the Fifth Circuit’s recent

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

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

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

the settlement agreement itself provide[d] that residual funds

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

35
that “the relevant provisions” of the Agreement “shape the

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

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

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

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

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

Agreement was limited by the Agreement’s provisions making the

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

distribution of leftover funds from the outset.8

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

recent decision in In re Baby Products Antitrust Litigation, 708

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

class member (who objected to the settlement agreement during a

fairness hearing and filed an appeal) that “the settlement

notice was inadequate because it did not identify the cy pres

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

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

8
Devlin v. Scardelletti, 536 U.S. 1 (2002), on which the Choctaw
Movants rely for the proposition that members of a class have
interests in a settlement sufficient to support Article III
standing, is even more distinct. That case addressed the claim
of a class member who objected to a proposed settlement at a
fairness hearing, and sought to appeal the district court’s
approval of the settlement. See id. at 4–6. The Supreme Court
held “that this issue does not implicate the jurisdiction of the
courts under Article III of the Constitution” because “[a]s a
member of the retiree class, petitioner has an interest in the
settlement.” Id. at 6. The Great Plains Claimants, by contrast,
never objected or appealed and they have already had their legal
claims fully resolved.

36
identity of the cy pres recipient was known) was sufficient, and

noted without deciding that “to the extent putative class

members have a property interest in the unclaimed funds and

object to the cy pres recipients selected, they may typically

intervene in the lawsuit for purposes of appealing an eventual

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

extent that tentative statement may be read to grant property

rights in leftover funds to class members who participate

successfully in a settlement agreement’s claims process, receive

the maximum award permitted by the settlement agreement, and who

neither object to nor appeal from the entry of that settlement

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

Because the Great Plains Claimants retain no legal claim to

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

for additional payments to previously successful class members,

while understandable, is not a legal interest that faces

imminent invasion. Accordingly, they lack standing.9

9
The Court also agrees with the government’s contention that any
injury the Great Plains Claimants may suffer by virtue of not
receiving additional payments beyond those received to satisfy
their claims is not causally linked to an action of the
defendant in this case; rather, it is a product of their assent
to and participation in the Agreement. See B’hood of Locomotive
Engs. & Trainmen v. Surface Transp. Bd., 457 F.3d 24, 28 (D.C.
Cir. 2006).

37
 B. The Great Plains Claimants May Not Intervene
Permissively.

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

requirements applicable to intervention as of right apply to

permissive intervention. Like the Choctaw Movants, moreover, the

Great Plains Claimants have not attempted to argue otherwise.

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

that standing was required for permissive intervention by

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

lack of standing precludes them from obtaining permissive

intervention.

C. The Great Plains Claimants May File an Amicus Curiae
Brief.

The Great Plains Claimants request, in the alternative, that

the Court grant them leave to participate in the settlement-

modification proceedings as amici curiae. See Mot. to Intervene,

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

Moreover, the Great Plains Claimants rightly note that this

Court has broad discretion to permit participation of amici

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

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

Accordingly, the Great Plains Claimants may enter their

appearance as amici curiae.

38
V. Conclusion

For the foregoing reasons, the motions to intervene filed by

the Choctaw Nation of Oklahoma and the Jones Academy Foundation,

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

Great Plains Claimants to participate in the pending settlement-

modification proceedings as amici curiae is GRANTED. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
November 7, 2014

39