Marilyn Keepseagle v. Sonny Perdue

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2017 Decided May 16, 2017

No. 16-5189

MARILYN KEEPSEAGLE, ET AL.,
APPELLEES

v.

SONNY PERDUE,
APPELLEE

DONIVON CRAIG TINGLE, SILENT CLASS MEMBER,
APPELLANT

Consolidated with 16-5190

Appeals from the United States District Court
for the District of Columbia
(No. 1:99-cv-03119)

William A. Sherman argued the cause for appellant. With
him on the briefs were Reed D. Rubinstein and James W.
Morrison.

D. Craig Tingle filed the briefs for appellant.
 2
Joseph M. Sellers argued the cause for appellees Porter
Holder; CLARYCA Mandan, on behalf of themselves and the
plaintiff class. With him on the brief were Christine E.
Webber, Paul M. Smith, Jessica R. Amunson, and Amir H. Ali.

Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, U.S. Department of Justice, and Charles W.
Scarborough and Carleen M. Zubrzycki, Attorneys, were on
the brief for federal appellee.

Marshall L. Matz and John G. Dillard were on the brief
for plaintiff-appellee Marilyn Keepseagle. Phillip L. Fraas,
David J. Frantz, Stewart D. Fried, and Sarah M. Vogel entered
appearances.

Before: BROWN and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

Concurring opinion filed by Circuit Judge WILKINS.

Dissenting opinion filed by Circuit Judge BROWN.

EDWARDS, Senior Circuit Judge: In 1999, a class of Native
American farmers and ranchers filed suit against the United
States Department of Agriculture (“the Department”),
contending that the Department discriminated against Native
American applicants in their claims under farm credit and
benefits programs. After more than a decade of contentious
litigation, the District Court approved a Settlement Agreement
(“the Agreement”) in 2011 that created a $680 million
compensation fund for the benefit of class members who
participated in a non-judicial, administrative claims process.
 3

At the conclusion of the claims process, $380 million still
remained in the compensation fund. Under the terms of the
Agreement, any leftover funds were to be distributed to cy-près
beneficiaries – i.e., non-profit organizations that provided
services to Native American farmers. Because the parties had
not anticipated such a large remainder, they entered into
negotiations to modify the Agreement. The parties’ initial
attempt at modification was unsuccessful. However, a second
effort resulted in an addendum to the Agreement that is the
subject of the dispute in this case. Under the terms of the
addendum, the cy-près process would be reformed to distribute
funds more efficiently and supplemental payments would be
awarded to class members who had successfully recovered
from the compensation fund.

The District Court approved the addendum to the
Agreement, concluding that it was “fair, reasonable, and
adequate” under Federal Rule of Civil Procedure 23(e)(2)
(“Rule 23”). The District Court found that the addendum
reflected a compromise between two competing goals: paying
out more funds to claimants who successfully recovered
through the claims process, and maintaining the cy-près
distributions for the benefit of the class as a whole.

Two class members – class representative Keith Mandan
(“Appellant Mandan”) and class member Donivon Craig
Tingle (“Appellant Tingle”) – appealed to this court, raising
four principal arguments. First, Appellant Mandan claims that
under the Agreement’s modification clause, the proposed
addendum cannot be approved without his assent. Second,
Appellant Mandan disputes that the addendum is “fair,
reasonable, and adequate.” Third, Appellant Mandan asserts
that the cy-près provision of the Agreement is unconstitutional,
in violation of the Appropriations Clause, and unlawful under
 4
the Judgment Fund Act. Fourth, Appellant Tingle alleges that
class counsel and class representatives breached their fiduciary
duties to class members. Both Appellants, who successfully
obtained payments through the claims process, contend that all
of the $380 million still remaining in the compensation fund
should be distributed pro rata to the successful claimants.

We affirm the judgment of the District Court. We reject
the claim that the modification clause requires Appellant
Mandan’s assent before the Agreement can be amended. We
further hold that the District Court did not abuse its discretion
in finding that the addendum was fair, reasonable, and
adequate. We decline to reach the merits of Appellant
Mandan’s legal challenges to the cy-près provision because
these claims were explicitly waived before the District Court.
The claims were also forfeited because Appellant Mandan
never raised any legal challenges to the cy-près provision
before the District Court despite clear opportunities to do so.
And there are no good reasons at this late date in the litigation
for this court to entertain Appellant Mandan’s legal challenges
to the cy-près provisions in the first instance. Finally, we find
no merit in Appellant Tingle’s breach of fiduciary duty claims.

I. BACKGROUND

In 1999, over two hundred Native American farmers and
ranchers filed a class-action suit against the United States
Department of Agriculture, contending that the Department
discriminated against Native American applicants in their
claims for credit and benefits under various government
programs. Plaintiffs alleged violations of the Equal Credit
Opportunity Act, the Administrative Procedure Act, and Title
VI of the Civil Rights Act of 1964. In 2001, the District Court
found that the plaintiffs had satisfied the requirements of Rule
23(b)(2), and certified a class of
 5

[a]ll Native–American farmers and ranchers,
who (1) farmed or ranched between January 1,
1981 and November 24, 1999; (2) applied to the
[the Department] for participation in a farm
program during that time period; and (3) filed a
discrimination complaint with the [the
Department] individually or through a
representative during the time period.

Keepseagle v. Veneman, No. 99-cv-3119, 2001 WL 34676944,
at *6 (D.D.C. Dec. 12, 2001). The District Court declined to
decide whether certification under Rule 23(b)(3), for monetary
relief, was appropriate at the time. Id. at *14. However, the
court noted that it “maintain[ed] the power to revisit the
definition of the class at any point.” Id.

A. The Initial Settlement

After more than a decade of extensive discovery practice,
the parties reached agreement in 2010 and drew up a settlement
agreement for the District Court’s approval. See Motion for
Preliminary Approval of Settlement, Keepseagle v. Vilsack,
No. 99-cv-3119 (D.D.C. Oct. 22, 2010), ECF No. 571. The
proposed Settlement Agreement provided both programmatic
and monetary relief. See Settlement Agreement §§ IX, XII,
Judicial Appendix (“JA”) 405–23, 424–29. The programmatic
relief included establishing the Council for Native American
Farming and Ranching, requiring the Department to collect and
evaluate data pertaining to its Farm Loan Program, and
enhancing services and education for Native American farmers
and ranchers. Id. § XII, JA 424–29. To provide monetary relief,
the Agreement sought certification of a Rule 23(b)(3) opt-out
class. Id. § IV(A), JA 400. The Agreement established a $680
million compensation fund financed by the Department of the
 6
Treasury. Id. § VII(F), JA 403. Under an administrative claims
process set forth in the Settlement Agreement, claimants would
receive either $50,000, if they had “substantial evidence” of
certain circumstances required in the Agreement, or up to
$250,000, if they met a higher evidentiary standard. See id. §
II(SS), (VV), JA 398 (setting out the dollar amounts of
awards); § IX, JA 405–23 (outlining the non-judicial claims
process). Claimants were given 180 days from the effective
date of the agreement to submit their claims. Id. § II(B), JA
392. Some funds were also allocated to the named class
representatives as “service awards.” Id. § XV(C), JA 433–34.

In the event that the $680 million compensation fund was
not exhausted during the claims process, the Agreement
contained a cy-près provision. Id. § IX(F)(7), JA 422–23. That
provision created a “Cy Pres Fund,” defined as “a fund
administered by Class Counsel designated to hold any leftover
funds” from the claims process. Id. § II(J), JA 393. The Cy Pres
Fund was to be distributed in equal shares to cy-près
beneficiaries designated by class counsel. Id. § IX(F)(7), JA
422–23. The Agreement limited cy-près beneficiaries to “any
non-profit organization, other than a law firm, legal services
entity, or educational institution” that served Native American
farmers. Id. § II(I), JA 393.

The Agreement also contained a provision permitting
modification of the settlement, but “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.” Id. § XXII, JA 438. The Agreement
defined “Parties” as “the Plaintiffs and the Secretary,” and
“Plaintiffs” as “the individual plaintiffs named in Keepseagle
v. Vilsack, . . . the members of the Class, and the Class
Representatives.” Id. § II(DD), (EE), JA 396.
 7
The District Court received thirty-five letters objecting to
the proposed Agreement. See Notice of Filing Objections and
Opt Out Requests, Keepseagle v. Vilsack, No. 99-cv-3119
(D.D.C. Mar. 18, 2011), ECF No. 585. Neither Appellant
Mandan nor Appellant Tingle submitted objections. Three
letters related to the Cy Pres Fund: one objector offered up
organizations he had started as potential cy-près beneficiaries,
id. at Exhibit 2; another recommended that cy-près awards be
used for outreach to farmers, id. at Exhibit 33; a third cautioned
that it was “simply wrong” to distribute remaining funds to cy-
près beneficiaries “as determined by class counsel,” id. at
Exhibit 32.

Class counsel responded to the objections in a motion
seeking final approval of the settlement, and the District Court
held a fairness hearing on April 28, 2011. The District Court
found that the terms of the settlement were fair and reasonable
and adequate pursuant to Rule 23(e), and approved the
Agreement. See Order, Keepseagle v. Vilsack, No. 99-cv-3119
(D.D.C. Apr. 28, 2011), JA 589–91. The District Court entered
final judgment dismissing the case, but retained continuing
jurisdiction for five years for the limited purposes of
overseeing compliance with the programmatic relief and the
administrative claims process. See Final Order and Judgment,
Keepseagle v. Vilsack, No. 99-cv-3119 (D.D.C. Apr. 29, 2011),
JA 592–93. No party appealed from the District Court’s final
order.

The administrative claims process proved to be less than
satisfactory. Far fewer people made claims than anticipated. At
the conclusion of the claims process, only $300 million of the
$680 million settlement fund had been paid out. Although the
Agreement originally directed the remaining $380 million to
be distributed to cy-près beneficiaries, class counsel informed
the District Court that such a large cy-près disbursement was
 8
“not contemplate[d]” by the original Agreement and would be
“impractical.” Status Report at 4–5, Keepseagle v. Vilsack, No.
99-cv-3119 (D.D.C. Aug. 30, 2013), ECF No. 646. The parties
agreed to confer over possible solutions.

B. The First Modification Attempt

In September 2014, class counsel filed an unopposed
motion to modify the Settlement Agreement, citing Rule
60(b)(5) and the modification clause of the Agreement. See
Plaintiffs’ Unopposed Motion to Modify the Settlement
Agreement Cy Pres Provisions, Keepseagle v. Vilsack, No. 99-
cv-3119 (D.D.C. Sept. 24, 2014), ECF No. 709. Counsel
proposed to act promptly to distribute $38 million of the
leftover funds to non-profit organizations, and to use the
remaining $342 million to create a trust that would distribute
the latter sum, over 20 years, to non-profit organizations
serving Native Americans. While class counsel and the
Department agreed to the proposed modification, one of the
class representatives – Marilyn Keepseagle – did not, and filed
her own motion to modify the settlement. See Marilyn and
George Keepseagle’s Motion to Modify the Settlement
Agreement, Keepseagle v. Vilsack, No. 99-cv-3119 (D.D.C.
May 19, 2015), ECF No. 779. Keepseagle proposed a pro rata
distribution of the leftover funds to the successful claimants –
a supplemental payment of around $100,000 each. The District
Court held a hearing at which many class members testified in
support of Keepseagle’s proposal. Neither Appellant Tingle
nor Appellant Mandan testified.

The District Court denied both class counsel and
Keepseagle’s motions to modify. See Keepseagle v. Vilsack,
118 F. Supp. 3d 98 (D.D.C. 2015), JA 1098–1167 (“First
Modification Decision”). The court found that neither class
counsel nor Keepseagle had met the requirements of Rule 60,
 9
in part because, in the court’s view, the larger-than-expected
remaining funds did not constitute “truly changed
circumstances” warranting relief. Id. at 55–62, JA 1152–59.
The court also found that class counsel’s motion did not have
the “agreement of the Parties,” as required by the modification
clause, because Keepseagle, a class representative, opposed the
motion. Id. at 67–68, JA 1164–65. The District Court implored
all parties to continue negotiating. Id. at 69, JA 1166.

C. The Second Modification Attempt

Class counsel, the Department, and Keepseagle reached a
compromise in December 2015, and submitted a motion to
amend the Agreement pursuant to the modification clause. See
Plaintiffs’ Unopposed Motion to Modify the Settlement
Agreement Cy Pres Provisions, Keepseagle v. Vilsack, No. 99-
cv-3119 (D.D.C. Dec. 14, 2015), ECF No. 824. The proposed
compromise provided for an additional $18,500 payment to
each of the 3,605 successful claimants and a corresponding
payment to the Internal Revenue Service on each claimant’s
behalf. See Memorandum Opinion at 8, Keepseagle v. Vilsack,
No. 99-cv-3119 (D.D.C. Apr. 20, 2016), JA 1454 (“Second
Modification Decision”). Then, $38 million would be promptly
distributed to non-profit organizations proposed by class
counsel and approved by the District Court. After the named
representatives received additional “service awards” for their
work in negotiations, the remaining funds (estimated to be
$265 million) would be placed in a trust, to be paid out over
twenty years, as contemplated by class counsel’s previous
motion.

The District Court directed class counsel to provide notice
of the proposed modification to the class, reviewed written
comments from class members, and held a hearing on
February 4, 2016, at which many class members testified.
 10
Appellant Tingle wrote in opposition, claiming that the trustees
of the proposed trust would enrich themselves instead of
benefiting class members. See Letter from D. Craig Tingle
(Jan. 4, 2016), JA 1201–02. Appellant Mandan also filed a
letter with the District Court, arguing that the remaining funds
should all go to successful claimants, who are “easily
identifiable,” and not to “third parties who have not suffered
any injury and who have no claims against the United States.”
See Comments of Class Representative Keith Mandan (Jan. 20,
2016), JA 1197–99. Appellant Mandan also filed a separate
submission arguing that the District Court could not approve
the proposed modification without his assent, because the
modification clause requires the “agreement of the Parties.”
Points and Authorities of Law at 1, Keepseagle v. Vilsack, No.
99-cv-3119 (D.D.C. Feb. 11, 2016), ECF No. 851. Appellant
Mandan’s objection cited the District Court’s decision
rejecting the first proposed modification and claimed that his
objection presented “the same issue” as Keepseagle’s
objection. Id. at 3.

Counsel for Appellant Mandan, and Appellant Mandan
himself, testified in support of fully distributing the remaining
funds to successful claimants. See Tr. of Mot. Hr’g Proceedings
at 68–74, 175, JA 1270–76, 1377. At the February 4, 2016
hearing, District Court Judge Sullivan, who had been presiding
over the case, asked Appellant Mandan’s counsel about a
separate lawsuit that he had filed on behalf of a different class
member, William Smallwood. Id. at 21, JA 1223. Judge
Sullivan noted that three days earlier, on February 1, 2016,
Appellant Mandan’s counsel had filed a complaint in the
District Court challenging the legality of the proposed cy-près
distribution. Id. Judge Sullivan stated that the complaint was
initially marked as “related” to the Keepseagle proceeding, but
had been reassigned to Judge Walton because the complaint
 11
challenged the initial settlement agreement, the merits of which
were resolved in 2011. Id. at 21–22, JA 1223–24.

Even though the matter had not been raised in the
Keepseagle proceeding, Judge Sullivan responsibly invited
counsel to offer his views on whether Smallwood’s challenges
to the legality of the cy-près provision should be heard by the
District Court in the Keepseagle proceeding as a related case.
Id. at 22, JA 1224. Counsel declined this invitation, stating that
he was “completely satisfied with where the case sits at this
particular point.” Id. at 70, JA 1272. Thereafter, counsel never
raised, briefed, or otherwise pressed any legal challenges to the
cy-près provision in the Keepseagle proceeding, and the
District Court did not further address it. In the separate case,
Judge Walton granted the Department’s motion to dismiss for
lack of standing on January 30, 2017. Smallwood v. Yates, No.
16-cv-161, 2017 WL 398334 (D.D.C. Jan. 30, 2017). An
appeal was filed in that case on April 12, 2017.

The District Court approved the proposed compromise
modification on April 20, 2016. See Second Modification
Decision, JA 1447–75. The District Court declined to construe
the original Agreement’s modification clause “to require
unanimous consent of the class representatives.” Id. at 19, JA
1465. The District Court also determined that the proposed
modification was “fair, reasonable, and adequate,” as required
by Rule 23(e)(2). Id. at 19–27, JA 1465–73. Appellants Tingle
and Mandan now appeal the District Court’s grant of class
counsel’s motion to modify the settlement.
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II. ANALYSIS

A. Standard of Review

We review the District Court’s interpretation of the terms
of the Settlement Agreement de novo. See Nix v. Billington,
448 F.3d 411, 414 (D.C. Cir. 2006). And we review the District
Court’s approval of the modification to the Settlement
Agreement for abuse of discretion. See Pigford v. Johanns, 416
F.3d 12, 16 (D.C. Cir. 2005).

B. The District Court’s Interpretation of the Modification
Provision

The District Court correctly interpreted the modification
provision in the Agreement because a “reasonable person in the
position of the parties” would not have thought that the
provision requires unanimous approval by class
representatives. See Richardson v. Edwards, 127 F.3d 97, 101
(D.C. Cir. 1997). The modification provision states that the
Agreement “may be modified only with the written agreement
of the Parties.” Settlement Agreement § XXII, JA 438. We find
that “written agreement of the Parties” cannot reasonably be
construed, as Appellant Mandan urges, to require the
unanimous assent of class representatives.

“We interpret a settlement agreement under contract law.”
Gonzalez v. Dep’t of Labor, 609 F.3d 451, 457 (D.C. Cir. 2010)
(citing T Street Dev., LLC v. Dereje & Dereje, 586 F.3d 6, 11
(D.C. Cir. 2009)). We must first “determine whether the
disputed language is unambiguous.” Armenian Assembly of
Am., Inc. v. Cafesjian, 758 F.3d 265, 278 (D.C. Cir. 2014). If
we find that the relevant clause is subject to more than one
reasonable interpretation, we consider “what a reasonable
person in the position of the parties would have thought the
 13
disputed language meant.” Id. (quoting Tillery v. D.C. Contract
Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006)).

We acknowledge that “the written agreement of the
Parties” is ambiguous because “agreement” is reasonably
susceptible to more than one construction. Nevertheless, in the
context of this class action settlement, we do not believe that
agreement means unanimous agreement, because such an
interpretive gloss would yield absurd results. See United States
v. Winstar Corp., 518 U.S. 839, 907 (1996) (avoiding
interpretation of contract that “would be absurd”); Am. First
Inv. Corp. v. Goland, 925 F.2d 1518, 1521 (D.C. Cir. 1991)
(avoiding interpretation that would “produce an absurd
result”).

The Agreement defines “Parties” as “the Plaintiffs and the
Secretary,” and defines “the Plaintiffs” as “the individual
plaintiffs named in Keepseagle v. Vilsack, . . . the members of
the Class, and the Class Representatives.” Settlement
Agreement § II(DD), (EE), JA 396. The terms of the
Agreement allow modification upon the written agreement of
the individual plaintiffs named in Keepseagle v. Vilsack, the
members of the Class, the Class Representatives, and the
Secretary. Id. § XXII, JA 438. If “agreement” were construed
to require unanimous assent, the Settlement Agreement could
be modified only if every single class member – upwards of
thousands of people – assented. There is no good reason to
believe that the parties intended to impose such a stringent
barrier to modification. The modification provision would
become meaningless, which would make little sense. See Beal
Mortg., Inc. v. FDIC, 132 F.3d 85, 88 (D.C. Cir. 1998)
(describing “the cardinal interpretive principle that we read a
contract to give meaning to all of its provisions” (citations and
internal quotation marks omitted)). In order to avoid such an
absurd construction and to give effect to the parties’ intentions,
 14
we reject the argument that “the agreement of the Parties” was
meant to require unanimity.

Furthermore, a central interpretive goal “in construing a
contract is to give effect to the mutual intentions of the parties.”
NRM Corp. v. Hercules, Inc., 758 F.2d 676, 681 (D.C. Cir.
1985). To effectuate the parties’ intent, we must consider the
“context.” Id. at 681 n.10. Here, it is noteworthy that the
Agreement resolved a class action. “Class actions are a form of
representative litigation. One or more class representatives
litigate on behalf of many absent class members, and those
class members are bound by the outcome of the
representative’s litigation.” WILLIAM B. RUBENSTEIN,
NEWBERG ON CLASS ACTIONS § 1:1 (5th ed. 2016). Various
class action procedures protect class members from being taken
advantage of by class representatives, including the
requirement that class representatives “fairly and adequately
protect the interests of the class,” FED. R. CIV. P. 23(a)(4), and
the requirement that a court ensure that any settlement is “fair,
reasonable, and adequate,” FED. R. CIV. P. 23(e)(2).

These structural protections for class members diminish
the need for unanimous decisionmaking in a class action.
Requiring unanimity among class members, apart from being
virtually impossible to achieve in a case of this sort, also invites
gamesmanship by giving any class member the power to “hold
out” and threaten to veto to seek a payoff. See Elizabeth
Chamblee Burch, Group Consensus, Individual Consent, 79
GEO. WASH. L. REV. 506, 508 (2011) (“The holdout problem
arises when defendants condition settlement on nearly
unanimous consent . . . . [A hold out] threatens to derail the
entire deal unless those claimants receive a disproportionately
high payoff.”). With these considerations in mind, we conclude
that the modification provision, read in context – an Agreement
 15
resolving a representational proceeding – permits amendment
of the Agreement without unanimous assent.

Finally, we can discern no good reason why the parties
would require unanimity to modify the Settlement Agreement,
when unanimity was not required to approve the settlement in
the first instance. As we noted in Thomas v. Albright, 139 F.3d
227, 232 (D.C. Cir. 1998), “a settlement can be fair even
though a significant portion of the class and some of the named
plaintiffs object to it.” Indeed, in this case, the District Court
approved the original settlement over the objections of thirty
five class members. We doubt that the parties intended for
modification to be more difficult than approval. Thus, the
District Court correctly found that

[j]ust as it could not reasonably have been the intent of
the parties to construe the modification provision to
require the consent of all class members to any
modification, it also could not reasonably have been
the intent of the parties to construe the modification
provision to require the unanimous consent of the class
representatives.

Second Modification Decision at 19, JA 1465.

We are not persuaded by Appellant Mandan’s one
argument to the contrary. He claims that the District Court was
bound by its decision rejecting the first modification proposal
because it was the “law of the case.” Br. for Mandan at 48. This
claim is simply mistaken. The District Court’s initial decision
was not binding because it was not embodied in any final
judgment. “When there are multiple appeals taken in the course
of a single piece of litigation, law-of-the-case doctrine holds
that decisions rendered on the first appeal should not be
revisited on later trips to the appellate court.” LaShawn A. v.
 16
Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (citation and
internal quotation marks omitted). However, the law-of-the-
case doctrine “does not apply to interlocutory orders . . . for
they can always be reconsidered and modified by a district
court prior to entry of a final judgment.” First Union Nat’l
Bank v. Pictet Overseas Tr. Corp., 477 F.3d 616, 620 (8th Cir.
2007) (citation omitted).

C. The District Court’s Fairness Determination

The District Court reasonably determined that the modified
agreement was fair, reasonable, and adequate. Appellants have
not met their “burden on appeal of making a ‘clear showing’
that an abuse of discretion has occurred” in the District Court’s
approval of the modified settlement. Pigford v. Glickman, 206
F.3d 1212, 1217 (D.C. Cir. 2000) (quoting Moore v. Nat’l
Ass’n of Sec. Dealers, 762 F.2d 1093, 1107 (D.C. Cir. 1985)).

The record reveals that the District Court conducted an
impressive and thorough review of the proposed addendum.
The District Court “directed class counsel to provide the class
with notice of the proposed Addendum, allowed class members
to submit written comments to the Court, and scheduled a
hearing . . . to hear argument from counsel and oral statements
from class members.” Second Modification Decision at 11, JA
1457. During an eight-hour hearing in the ceremonial
courtroom, which was used to accommodate the large number
of class members present, the District Court heard testimony
from over thirty class members. See JA 1203–1437 (transcript
of hearing).

Following the hearing, the District Court concluded that
the proposed addendum was a fair compromise. The addendum
reformed the cy-près distribution provisions, which all parties
agreed were unworkable. The initial Settlement Agreement
 17
required an equal distribution of funds to a restricted class of
non-profit organizations approved by class counsel; the
addendum eliminated the equal distribution requirement and
expanded the class of non-profits eligible for the funds. See
Plaintiffs’ Unopposed Motion to Modify the Settlement
Agreement Cy Pres Provisions at 6–8, Keepseagle v. Vilsack,
No. 99-cv-3119 (D.D.C. Dec. 14, 2015), ECF No. 824. Most
notably, the addendum placed the bulk of the cy-près funds in
a trust overseen by trustees with “substantial knowledge of
agricultural issues, the needs of Native American farmers and
ranchers, or other substantive knowledge relevant to
accomplishing the Trust’s Mission.” Trust Agreement
§ 13(f)(1), Keepseagle v. Vilsack, No. 99-cv-3119 (D.D.C.
Dec. 14, 2015), ECF No. 824-3. And, rather than distributing
all of the funds at once, the addendum established a process for
the trust to be paid out over 20 years. Id. § 10. As the District
Court explained, these reforms, which offered greater
flexibility and expertise in the management and distribution of
funds, were necessary because of the “unexpectedly large
amount of remaining funds.” Second Modification Decision at
25–26, JA 1471–72.

The addendum also reflected a compromise regarding
additional payments to class members who recovered in the
first claims process. The two contending groups – one favoring
distribution of all remaining funds to successful claimants, and
one favoring no additional distribution – conceded to a middle
ground: a limited distribution to successful claimants. The
compromise provided for an additional $18,500 payment to
successful claimants as well as a direct payment to the Internal
Revenue Service to cover tax liability. As the District Court
recognized, “[w]hile the amount of the payment is not as high
as the class representatives and many class members would
prefer, it is an additional payment that was not contemplated in
the existing Agreement.” Id. at 25, JA 1471.
 18

As we have previously noted, “[a] claim that individual
dissenters are entitled to more money is not, by itself, sufficient
to reject the overall fairness of the settlement; . . . a settlement
necessitates compromise.” Thomas, 139 F.3d at 232. We have
no good reason to second-guess the District Court’s conclusion
that, in providing both supplemental payments and reforming
the cy-près process, the negotiated compromise fairly balances
the parties’ competing positions.

Appellant Mandan raises several procedural challenges to
the District Court’s fairness determination. He argues that the
District Court erred by failing to recognize that it had the
“equitable power” to distribute all of the funds marked for cy-
près beneficiaries to the prevailing claimants. Br. for Mandan
at 32–35. In a related argument, Appellant Mandan claims that
the District Court should not have approved the modified
settlement “without first determining whether the prevailing
claimants were readily identifiable and whether further
distributions to them were economically viable.” Id. at 35
(capitalization altered). Appellant Mandan’s final procedural
challenge is that the District Court did not provide a “reasoned
explanation” for its approval of the modified settlement. Id. at
42. We find no merit in these claims.

First, the District Court was correct in finding that it was
not authorized “to fashion a different resolution such as
ordering that the remaining funds be paid to prevailing
claimants,” Second Modification Decision at 24, JA 1470,
because the District Court’s jurisdiction was limited to
accepting or rejecting the proposed settlement agreement that
was before it. “[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 v. Veneman, 292 F.3d 918, 924 (D.C. Cir.
 19
2002). In a previous decision in this case, we said: “The District
Court’s jurisdiction is drawn exceedingly narrowly . . . .”
Keepseagle v. Vilsack, 815 F.3d 28, 36 (D.C. Cir. 2016). We
recognized that the Agreement grants ongoing jurisdiction to
the District Court only for specifically delineated, and narrow,
circumstances, none of which apply here. Settlement
Agreement § XIII, JA 429–30. District courts do not have
freewheeling jurisdiction to modify settlements. “Who would
sign a consent decree if district courts had free-ranging
interpretive or enforcement authority untethered from the
decree’s negotiated terms?” Pigford, 292 F.3d at 925.

Second, the District Court did not err in approving the
addendum without determining whether the prevailing
claimants were identifiable and whether paying out funds to
them was feasible. As discussed above, this argument
misconceives the role and authority of the District Court, which
is very limited. Appellant Mandan’s argument also misreads
our case law. There is no precedent in this circuit to support the
assertion that parties cannot negotiate a settlement providing
for cy-près distribution where prevailing claimants are
identifiable and dispersal of funds is feasible. In support of this
claim, Appellant Mandan cites Democratic Central Committee
of the District of Columbia v. Washington Metropolitan Area
Transit Commission, 84 F.3d 451 (D.C. Cir. 1996). However,
the decision in that case did not limit cy-près awards to
situations where prevailing claimants are not easily
identifiable. Rather, the decision merely stated a definition of
cy-près – “permit[ting] such funds to be distributed to the ‘next
best’ class when the plaintiffs cannot be compensated
individually” – that “some courts have applied.” Id. at 455. It
does not limit cy-près distributions to certain prescribed
circumstances.
 20
The cases from other circuits cited by Appellant Mandan
are inapposite. See Br. for Mandan at 38. Appellant Mandan
primarily points to decisions in which district courts sua sponte
made cy-près awards, not cases (like the one here) in which the
parties’ negotiated settlement agreement included a cy-près
provision. Indeed, in a decision from the Third Circuit, the
court explained 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.” In re Baby Prods.
Antitrust Litig., 708 F.3d 163, 172 (3d Cir. 2013). That decision
distinguished cases in which the parties “agreed to” the cy-près
distribution from cases in which trial courts imposed a cy-près
distribution “over the objections of the parties.” Id. at 172 n.7.
This case falls in the former category because the Settlement
Agreement includes a cy-près provision. See Settlement
Agreement § IX(F)(7), JA 422–23.

The other cases cited by Appellant Mandan involving
decisions from our sister circuits are also plainly
distinguishable. See, e.g., In re Lupron Mktg. & Sales Practices
Litig., 677 F.3d 21 (1st Cir. 2012) (agreement gave district
court full discretion to select recipients of cy-près fund);
Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011) (cy-près
beneficiaries were completely unrelated to the objectives of the
class action); In re Katrina Canal Breaches Litig., 628 F.3d
185 (5th Cir. 2010) (agreement provided for appointment of
special master to dispose of any remaining funds without any
guidelines). All of these cases involved situations that are very
different from this case.

Finally, Appellant Mandan’s argument that the District
Court failed to give a reasoned explanation for its acceptance
of the addendum is belied by the record. As discussed above,
throughout the extensive settlement process that was
 21
supervised by the District Court, as well as in its opinion
disposing of this case, the court showed admirable patience,
fairness, and good judgment in weighing the competing
proposals for modification. See Second Modification Decision
at 25–27, JA 1471–73 (explaining the court’s reasoning). We
not only do not reverse the District Court, we applaud its good
efforts in bringing this case to conclusion.

D. The Waived and Forfeited Claims Relating to the
Appropriations Clause and the Judgment Fund Act

The lawsuit in this case was filed in 1999. The parties
reached settlement in 2010. The District Court approved the
settlement in 2011. No appeal was taken by any party. And at
no time during this twelve-year period did any party challenge
the legality of the cy-près provision in the Agreement.

The initial Agreement contained a cy-près clause providing
that “the Claims Administrator shall direct any leftovers funds
to the Cy Pres Fund.” Settlement Agreement § IX(F)(7), JA
422–23. Neither Appellant Mandan nor any other interested
party objected to this provision. Quite the contrary, Appellant
Mandan accepted the settlement and received a payout from the
administrative claims process. See Comments of Class
Representative Keith Mandan at 1 (Jan. 20, 2016), JA 1197
(“Keith Mandan, is both a Class Representative and a
Prevailing Claimant . . . .”).

Appellant Mandan (and other parties) had a second
opportunity to challenge the legality of the cy-près provision in
the Agreement during the first proceedings to modify the
Agreement. At this point in the litigation, the claims process
had concluded, leaving $380 million remaining to be directed
to the cy-près fund. The issue regarding the distribution of
funds pursuant to the cy-près provision was front-and-center at
 22
this stage of the proceedings before the District Court. Yet,
neither Appellant Mandan nor any other interested party raised
any objection to the legality of the cy-près provision in the
Agreement.

Appellant Mandan’s third opportunity to challenge the
legality of the cy-près provision came when the District Court
considered the second proposal to modify the Agreement.
Appellant Mandan contested the cy-près distribution, but he
did not contest the legality of the cy-près provision. See
Comments of Class Representative Keith Mandan at 3 (Jan. 20,
2016), JA 1199. Appellant Mandan’s counsel clearly knew
during the second modification proceeding that he could raise
any constitutional or legal challenges to the cy-près provision.
He knew because he explicitly declined to pursue any such
challenges.

In February 2016, a few days before the District Court’s
fairness hearing concerning the second proposed modification,
counsel for Appellant Mandan filed a new, separate lawsuit, on
behalf of a different class member, challenging the legality of
the cy-près provision. See Complaint, Smallwood v. Lynch, No.
16-cv-161 (D.D.C. Feb. 1, 2016), ECF No. 1. In that complaint,
counsel for Appellant Mandan marked the case as related to the
Keepseagle case, but the District Court determined that it did
“not appear to be related within the meaning of our local rules.”
Tr. of Mot. Hr’g Proceedings at 22, JA 1224. However, at the
February 2016 fairness hearing, Judge Sullivan, who was
presiding over the Keepseagle proceeding, offered counsel for
Appellant Mandan the opportunity to present his challenges to
the legality of the cy-près provision. The District Court told
counsel that the case “was reassigned to one of my colleagues,
Judge Walton. He and I have not discussed this, and maybe I
should have heard from counsel first as to whether the Court
should keep the case and resolve it itself or not. I’m interested
 23
in your views about that.” Id. But Appellant Mandan’s counsel
refused Judge Sullivan’s invitation to raise the issue and
explicitly declined to present his argument to the District Court,
stating that “we are completely satisfied with where the case
sits at this particular point.” Id. at 70, JA 1272. Judge Sullivan
then told counsel that the case is “before Judge Walton, and so
you can make your arguments to him.” Id. at 71, JA 1273.

Counsel for Appellant Mandan thereafter argued before
Judge Walton in the separate case challenging the legality of
the cy-près provision. Judge Walton dismissed the complaint
for lack of standing on January 30, 2017. See Smallwood v.
Yates, No. 16-cv-161, 2017 WL 398334 (D.D.C. Jan. 30,
2017). The matter was never raised again in conjunction with
the Keepseagle case until Appellant Mandan filed his appeal
with this court. Judge Sullivan never had occasion to address
the issue because Appellant Mandan’s counsel explicitly
declined to pursue the matter in this case. This procedural
history, which Appellant Mandan did not mention in his briefs
to this court, reveals that he knowingly declined to raise his
claims with the District Court in the matter now under review
in this court.

Appellant Mandan now advances, for the first time in this
case, constitutional and statutory challenges to the Settlement
Agreement’s cy-près provision. He argues that the provision
violates the Appropriations Clause, U.S. CONST. art. I, § 9, cl.
7, because it proposes to expend Treasury funds without a
specific appropriation by Congress. Br. for Mandan at 21–32.
And he contends that the provision violates the Judgment Fund
Act, 31 U.S.C. § 1304(a)(3), because cy-près beneficiaries are
“uninjured non-parties” who would not be able to recover
judgments against the United States. Br. for Mandan at 26. In
Appellant Mandan’s view, these claims are inexorably tied
together and they are presented together in his brief. See, e.g.,
 24
id. at 19. As noted above, these claims were never raised with
the District Court. We therefore decline to review the claims
because they were waived or forfeited.

In Greenlaw v. United States, 554 U.S. 237, 243–44 (2008),
the Supreme Court explained why appellate courts should be
loath to address issues that were not raised with the district
court in the first instance:

In our adversary system, in both civil and criminal
cases, in the first instance and on appeal, we follow the
principle of party presentation. That is, we rely on the
parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties
present. To the extent courts have approved departures
from the party presentation principle in criminal cases,
the justification has usually been to protect a pro se
litigant’s rights. See Castro v. United States, 540 U.S.
375, 381–383 (2003). But as a general rule, “[o]ur
adversary system is designed around the premise that
the parties know what is best for them, and are
responsible for advancing the facts and arguments
entitling them to relief.” Id., at 386. (SCALIA, J.,
concurring in part and concurring in judgment). As
cogently explained:

“[Courts] do not, or should not, sally forth each
day looking for wrongs to right. We wait for cases
to come to us, and when they do we normally
decide only questions presented by the parties.
Counsel almost always know a great deal more
about their cases than we do . . . .” United States
v. Samuels, 808 F.2d 1298, 1301 (C.A.8 1987) (R.
Arnold, J., concurring in denial of reh’g en banc).
 25
554 U.S. at 243–44.

“Although jurists often use the words interchangeably,”
Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004), waiver is the
“intentional relinquishment or abandonment of a known right,”
United States v. Olano, 507 U.S. 725, 733 (1993) (citation and
internal quotation marks omitted), and “forfeiture is the failure
to make the timely assertion of a right.” Id. In this case,
Appellant Mandan waived his claims and he forfeited any right
that he might have had to raise the matters on appeal.
Application of the waiver doctrine, alone, is sufficient to
dispose of these issues.

Appellant Mandan explicitly waived his claims when his
counsel told the District Court Judge that he did not wish to
pursue any challenges to the cy-près provision. He did this after
Judge Sullivan invited him to raise whatever concerns he had.
“[A]fter expressing [a] clear and accurate understanding of the
. . . issue, [Counsel] deliberately steered the District Court away
from the question . . . . In short, [Counsel] . . . chose, in no
uncertain terms, to refrain from interposing [any] ‘challenge’
[to the cy-près provision].” Wood v. Milyard, 132 S. Ct. 1826,
1835 (2012). In these circumstances, Appellant Mandan’s
claims regarding the legality of the cy-près provision were
waived and they cannot be raised on appeal.

On the record before us, there is no doubt that Appellant
Mandan waived his claims regarding the legality of the cy-près
provision. Even if we take a different tack and consider
whether Appellant Mandan forfeited (rather than waived) his
claims, the result is the same. The case law is clear that he is
foreclosed from belatedly challenging the legality of the cy-
près provision for the first time on appeal because he never
raised his claims with the District Court in the first instance.
 26
“It is well settled that issues and legal theories not asserted
at the District Court level ordinarily will not be heard on
appeal.” District of Columbia v. Air Florida, Inc., 750 F.2d
1077, 1084 (D.C. Cir. 1984). We have explained the reasons
for this general principle: “Enormous confusion and
interminable delay would result if counsel were permitted to
appeal upon points not presented to the court below. Almost
every case would in effect be tried twice under any such
practice. While the rule may work hardship in individual cases,
it is necessary that its integrity be preserved.” Id. at 1084–85
(quoting Johnston v. Reily, 160 F.2d 249, 250 (D.C. Cir.
1947)).

Thus, under well-established law, a party forfeits a claim
by failing to raise it below when the party “knew, or should
have known” that the claim could be raised. Laffey v. Nw.
Airlines, Inc., 740 F.2d 1071, 1091 (D.C. Cir. 1984). In this
case, Appellant Mandan knew, or should have known, that his
constitutional and statutory claims could have been raised in
2011, when the District Court approved the Settlement
Agreement containing the cy-près provision. Appellant
Mandan does not dispute this.

By 2015, after the claims process concluded and the
remaining funds were slated for cy-près distribution, there can
be no doubt that Appellant Mandan was once again on notice
of the opportunity to put forward his constitutional and
statutory theories. As detailed above, during the February 2016
fairness hearing, Judge Sullivan offered counsel for Appellant
Mandan the opportunity to present his legal challenges to the
cy-près provision. Counsel expressly declined and thereafter
never pursued the claims with the District Court in this case.

In light of this record, it would be extraordinary for an
appellate court to address these claims for the first time on
 27
appeal. As the Supreme Court said in Greenlaw, in “our
adversary system . . . we follow the principle of party
presentation. . . . [Appellate courts] should not, sally forth each
day looking for wrongs to right. We wait for cases to come to
us, and when they do we normally decide only questions
presented by the parties.” 554 U.S. at 243–44 (citation and
internal quotation marks omitted).

It does not matter that Appellant Mandan’s belated claims
involve constitutional issues. The doctrines of waiver and
forfeiture apply to constitutional objections. See Curtis Pub.
Co. v. Butts, 388 U.S. 130, 143 (1967) (“[I]t is . . . clear that
even constitutional objections may be waived by a failure to
raise them at a proper time . . . .” (citing Michel v. Louisiana,
350 U.S. 91, 99 (1955)); see also Eli Lilly & Co. v. Home Ins.
Co., 794 F.2d 710, 717 (D.C. Cir. 1986) (finding that
“appellants waived their constitutional claims by failing to
raise them on their initial appeal to this court”); Yakus v. United
States, 321 U.S. 414, 444 (1944); (“No procedural principle is
more familiar to this Court than that a constitutional right may
be forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.”).

We would not only pervert the adversary process by
addressing Appellant Mandan’s newly raised claims, we would
also be required to engage in unduly weighty and cumbersome
decision-making without a decent record from the District
Court. See Air Florida, Inc., 750 F.2d at 1085 (pointing out the
“serious problems” that would be encountered if the court
entertained complex issues on appeal “without prior
consideration by the trial court”).

Appellant Mandan’s theories are novel and they rest on his
view of legislative history that is beyond the record of this case.
 28
See Br. for Mandan at 26–29 (citing, e.g., Proposal to Expedite
the Payment of Judgments against the United States: Hearing
Before the Subcomm. of the Comm. on Appropriations, 84th
Cong. 883 (1956)). While some of Appellees’ briefs touch on
the merits of some of Appellant Mandan’s claims, see, e.g., Br.
for Appellee Vilsack at 19–24, we lack the robust record
necessary to properly evaluate the substance of these
arguments. Indeed, as far as we can discern, Appellant
Mandan’s arguments have never been addressed by any federal
appellate court, and they have been explored only tangentially
in a single law review article. See Paul F. Figley, The Judgment
Fund: America’s Deepest Pocket and its Susceptibility to
Executive Branch Misuse, 18 U. PA. J. CONST. L. 145, 194–97
(2015).

Even giving Appellant Mandan the benefit of the doubt,
we certainly cannot say that “the proper resolution [of his
claims] is beyond any doubt.” Singleton v. Wulff, 428 U.S. 106,
121 (1976). If anything, his arguments regarding the Judgment
Fund Act appear to be misguided. See Availability of Judgment
Fund in Cases Not Involving a Money Judgment Claim, 13 Op.
O.L.C. 98, 103 (1989) (focusing on the “underlying cause”
leading to settlement, and not on the identity of the parties
receiving settlement funds (citation omitted)).

Indeed, it is noteworthy that Appellant Mandan’s
arguments regarding the Judgment Fund Act stem principally
from his policy concerns over the use of cy-près provisions,
and not from any clear statutory mandate. See, e.g., Br. for
Mandan at 28–29 (“Cy pres is a troublesome concept
generally.”). “This being so, injustice [is] more likely to be
caused than avoided” if this court were to address the issues in
the first instance before they have been properly raised and
tried in the District Court. Singleton, 428 U.S. at 121.
 29
Given the novelty and complexity of Appellant Mandan’s
claims, the materials that he asks us to review, and the policy
arguments that he raises, it would be entirely inappropriate for
this court to address the merits of his claims without the benefit
of a full record, including a decision from the District Court in
the first instance. As then-Judge Scalia explained,

[t]he premise of our adversarial system is that appellate
courts do not sit as self-directed boards of legal inquiry
and research, but essentially as arbiters of legal
questions presented and argued by the parties before
them. . . . Failure to enforce this requirement will
ultimately deprive us in substantial measure of that
assistance of counsel which the system assumes—a
deficiency that we can perhaps supply by other means,
but not without altering the character of our institution.

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983); see
also Hormel v. Helvering, 312 U.S. 552, 556 (1941) (“[It] is
essential . . . that parties may have the opportunity to offer all
the evidence they believe relevant to the issues which the trial
tribunal is alone competent to decide . . . .”). Departing from
our established “principle of party presentation” would deprive
the parties of a full opportunity to present their arguments and
would place this court in the unsuitable position of deciding
novel legal issues in the first instance. This is not our role.

We understand that, in “exceptional circumstances,” an
appellate court may exercise discretion to address an issue that
is subject to forfeiture. Roosevelt v. E.I. Du Pont de Nemours
& Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992). The Supreme
Court said as much in Singleton, 428 U.S. at 121. But the Court
made it clear that this is the exception, not the rule, and it
should be limited to situations “as where the proper resolution
is beyond any doubt,” or where “injustice might otherwise
 30
result.” Id. (citation omitted). The record in this case does not
come close to establishing exceptional circumstances that
would militate in favor of this court considering, in the first
instance, Appellant’s legal challenges to the cy-près provision.

The truth here is that the “exceptional circumstances”
exception to forfeiture is of little moment in this case because,
before the District Court, Appellant Mandan explicitly waived
the claims that he now seeks to raise with this court. And
contrary to what the dissent implies, there is no authority to
support a suggestion that Appellant Mandan's Appropriations
Clause claims raise an Article III concern or call into question
the jurisdiction of this court. The simple point here is that
Appellant Mandan’s Appropriations Clause claims were
waived before the District Court and that is the end of the
matter.

E. Appellant Tingle’s Arguments

Appellant Tingle’s arguments overlap significantly with
Appellant Mandan’s, and are unpersuasive for the reasons
discussed above. However, Appellant Tingle raises two unique
arguments: first, that “[c]lass counsel had a conflict of interest
and breached its fiduciary duty,” Br. for Tingle at 30; and,
second, that “[t]he class representatives breached their
fiduciary duties,” id. at 35. We reject both claims because
Appellant Tingle offers no evidence in support of his
allegations. He asserts that “divergent interests emerged within
the class” such that class counsel “was simultaneously
representing clients with conflicting interests.” Id. at 31. He
does not explain what those divergent interests were and how
they resulted in breaches of fiduciary duties. Class
representatives often must weigh competing claims in
weighing the best interests of the class as a whole. This,
without more, does not give evidence of a breach of fiduciary
 31
duties. Likewise, Appellant Tingle alleges that trusteeships
overseeing the proposed trust were promised to certain class
representatives “to incentivize a change in position.” Id. at 36.
Nothing in the record supports this accusation. Lastly,
Appellant Tingle takes aim at the “incentive fees” (or service
awards) provided by the Agreement for the class
representatives’ work in negotiating the Agreement and its
modification. Id. at 37. However, “incentive awards have often
been used to compensate a class representative,” Cobell v.
Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015), and nothing in the
record of this case suggests that the service awards served any
nefarious purposes.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of
the District Court.
 WILKINS, Circuit Judge, concurring: I join the majority
opinion in its entirety. I write separately to emphasize a few
brief points.

The dissent spins a tale of corruption and conspiracy, in
which the plaintiffs and the Government were complicit in
bilking the nation’s taxpayers to pay a political ransom. While
this narrative may have been advanced in news accounts and
scholarly articles, most of those statements and opinions have
not been validated by the solemnity of the oath and “testing in
the crucible of cross-examination,” Crawford v. Washington,
541 U.S. 36, 61 (2004); nor are they found in the record, and it
is the record upon which our decision must be based. Fed. R.
App. P. 10(a).

What the record shows is that the District Court expressly
found that the settlement “was attained following an extensive
investigation of the facts and the law . . . [and] resulted from
vigorous arms’-length negotiations, which were undertaken in
good faith.” Order, Keepseagle v. Vilsack, No. 99-cv-3119
(D.D.C. Apr. 28, 2011), JA 589-91. Unless we find clear error
in the District Court’s conclusion – and even the dissent does
not claim to do so – that finding stands.

It is true that more than half of the settlement fund was not
distributed through the claims process and is now poised to be
distributed via the cy-près provision. But this was an
unanticipated state of affairs, not an intended result. See
Keepseagle v. Vilsack, 118 F. Supp. 3d 98, 102 (D.D.C. 2015)
(“[N]o one anticipated such a large amount of excess funds.”).
As represented to the District Court, “the parties contemplated
that no more than several million dollars in settlement funds
would be unclaimed,” based on an expectation that “over ten
thousand class members would likely file . . . claims, and that
most of those claims would be successful.” J.A. 718 & n.2.
Instead of 10,000 claims, only 5,191 were received. J.A. 596.
 2
The reason for this discrepancy is “unclear,” Keepseagle,
118 F. Supp. 3d at 102, but the difference in the number of
actual, versus estimated, claimants correlates closely with the
amount of surplus settlement funds. The parties have offered
several possible explanations, including that the deaths of
eligible claimants (the claims process began 30 years after the
first year covered by the settlement) left heirs with insufficient
information to complete claim forms or that, perhaps, there
were “simply fewer people with claims than Plaintiffs
originally argued.” Id. at 108 n.3. In addition to falling short
of the expected number of claims, a large number of submitted
claims were unsuccessful. Most strikingly, out of 146 Track B
claimants, only fourteen were successful. Compare J.A. 596,
with J.A. 716.

Regardless of the cause of this “monumental” failure in the
claims process, Keepseagle, 118 F. Supp. 3d at 102, there is no
occasion for considering the newly-resurrected claim that the
cy-près provision – a feature of the Settlement Agreement since
it was first unveiled seven years ago – violates the
Appropriations Clause. The dissent apparently concedes that
Appellant Mandan waived this claim before the District Court
when he was asked whether he wished to pursue it. Yet, the
dissent relies exclusively on cases involving forfeiture – not
waiver – to argue that “exceptional circumstances” permit an
appellate court to nevertheless consider the claim. The
Supreme Court, though, has been clear: “Waiver is different
from forfeiture.” United States v. Olano, 507 U.S. 725, 733
(1993). While “[m]ere forfeiture . . . does not extinguish an
error,” waiver may. Id. (internal quotation marks omitted).

Of course, some errors cannot be waived – subject matter
jurisdiction chief among them. In an attempt to shoehorn this
case into that category, the dissent hints that a federal court may
be without jurisdiction to approve a settlement agreement that
 3
requires the Executive to make an unappropriated expenditure.
No authority is cited for that proposition and the legal signposts
in this area instead point in the opposite direction. See Local
No. 93 v. City of Cleveland, 478 U.S. 501, 523 (1986) (“[T]he
mere existence of an unexercised power to modify the
obligations contained in a consent decree does not alter the fact
that those obligations were created by agreement of the parties
rather than imposed by the court.”); cf. Authority of the United
States to Enter Settlements Limiting the Future Exercise of
Executive Branch Discretion, 23 Op. O.L.C. 126, 128 (1999)
(“We do not believe . . . that Article III bars federal courts from
entering consent decrees that limit executive branch discretion
whenever such decrees purport to provide broader relief than a
court could have awarded pursuant to an ordinary injunction.”).

Even if the “extraordinary circumstances” standard cited
in the dissent were applicable, its terms are not met. The
dissent claims that the “proper resolution is not in doubt”
because we are presented with a “fully briefed, purely legal
question.” See Dis. Op. at 16-17. But, of course, the proper
resolution of even fully briefed, purely legal questions can be
doubtful. Circuit splits happen.

Moreover, the question presented here is not purely legal.
Congress has appropriated funds for the Executive to settle
“claims . . . for defense of imminent litigation or suits against
the United States . . . [which] shall be settled and paid in a
manner similar to judgments in like causes.” 28 U.S.C. § 2414.
Concededly, the nonprofit organizations that will receive cy-
près distributions out of leftover settlement funds may not
possess any claims against the United States. But there is no
denying that the Settlement Agreement did in fact settle claims
against the United States; namely, the claims of the members
of the class. The question of whether this settlement was
supported by a congressional appropriation turns on whether
 4
providing for cy-près distribution of unclaimed settlement
funds is “similar to judgments in like causes.” Id. That
requires answering at least two questions that are not “purely
legal”: What are “like causes” to this one? And how are
judgments in such causes settled and paid? The record offers
no answers to these questions, nor should it, because Appellant
Mandan told the District Court that this issue was off the table.
Not only has there been no fact-finding on these questions,
there has been no adversarial presentation; these questions are
not “fully briefed.” Nor can we say, without a proper factual
record, that the proper resolution of the merits question is, in
fact, “beyond any doubt,” Singleton v. Wulff, 428 U.S. 106, 121
(1976).

These conclusions are not the product of “schadenfreude”
or disrespect for the importance of separation of powers.
Rather, they are mandated by a commitment to the proper role
of the appellate court and the system of adversarial
presentation. When properly presented in a case or
controversy, courts vindicate the constitutional scheme of
separation of powers. Otherwise, allegations of trespass onto
Congress’ constitutional curtilage must be addressed by
Congress – not the courts – and Congress has ample weaponry
with which to defend its turf.
 BROWN, Circuit Judge, dissenting: $380,000,000 is, to use
the late Senator Dirksen’s wry phrase, “real money.” That is
what has been left on the table for private disbursement in this
case. Perhaps one day, I will possess my colleagues’
schadenfreude toward the Executive Branch raiding hundreds-
of-millions of taxpayer dollars out of the Treasury, putting
them into a slush fund disguised as a settlement, and then
doling the money out to whatever constituency the Executive
wants bankrolled. But, that day is not today.

The Constitution’s Appropriations Clause ensures the
People’s elected representatives “hold the purse.” See THE
FEDERALIST NO. 58, p. 357 (Clinton Rossiter ed., 1961) (J.
Madison). “No money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law.” U.S.
CONST. art. I, § 9, cl. 7. The Executive Branch may wish to
favor certain interests on the taxpayer’s dime. It may wish to
use the Judicial Branch’s enforcement of settlement
agreements to avoid asking Congress for an appropriation. But
the Constitution’s design gives the People’s elected
representatives a means to thwart these “overgrown
prerogatives.” See THE FEDERALIST NO. 58, p. 357 (Clinton
Rossiter ed., 1961) (J. Madison). By limiting the “judicial
Power” to resolving “Cases” and “Controversies,” U.S. CONST.
art. III §§ 1–2, the Constitution ensures the Judicial Branch has
“no influence over . . . the purse.” See THE FEDERALIST NO.
78, p. 464 (Clinton Rossiter ed., 1961) (A. Hamilton).
Expenditures toward the fulfilment of public policy are integral
to policymaking itself, and policymaking is left to the
legislature. See id. at 464, 467. In short, congressional control
over the People’s purse is a structural limit on both the
Executive and Judicial Branches. See Clinton v. City of New
York, 524 U.S. 417, 451 (1998) (Kennedy, J., concurring)
(“Money is the instrument of policy and policy affects the lives
of citizens. The individual loses liberty in a real sense if that
instrument is not subject to traditional constitutional
constraints.”).
 2

But this case exposes a peril to the public fisc with which
the drafters never reckoned: cy pres. Originating from the law
of trusts and estates, cy pres refers to a court’s power to reform
the terms of a trust or gift that is otherwise impossible to
effectuate. Rather than revert the unclaimed money or gift
back to the defendant, a court may distribute the unclaimed
sum for a purpose “as near as possible” to the objectives
underlying the trust or gift. See generally Martin H. Redish,
Peter Julian & Samantha Zyontz, Cy Pres Relief and the
Pathologies of the Modern Class Action: A Normative and
Empirical Analysis, 62 FLA. L. REV. 617, 624 (2010)
[hereinafter Redish]. Cy pres seeped its way into class actions
after a 1972 article proposed that courts distribute unclaimed
settlement dollars to whatever non-parties fulfill the litigation’s
“purpose.” See id. at 631–32. Cy pres took the judiciary “to
the utmost verge of the law” even before it was applied to class
actions. See Jackson v. Phillips, 96 Mass. 539, 574 (1867)
(quoting the English jurist Lord Kenyon). Now in “class action
litigation,” its mere presence raises “fundamental concerns”
about the nature of judicial power. See, e.g., Marek v. Lane,
134 S. Ct. 8, 8–9 (2013) (statement of Roberts, C.J., respecting
denial of certiorari).

Here, Congress only appropriated money for the Executive
Branch to pay settled claims against the United States via the
Judgment Fund Act. See 31 U.S.C. § 1304(a) (Judgment Fund
Act); see also 28 U.S.C. § 2414 (authorizing the Justice
Department to pay settled litigation claims using funds
appropriated via the Judgment Fund Act). Those claims have
already been paid—every Native-American farmer who filed a
viable claim of discrimination by the United States has been
compensated. And yet, more than half of the Judgment Fund
appropriation for this case—more than $380,000,000—
remains. The Executive Branch and class counsel have devised
 3
a cy pres distribution scheme to send these taxpayer dollars to
“nonprofits” and “charities” with no claims against the United
States. But, the Executive Branch and class counsel tell us not
to worry. According to their distribution scheme, these
unidentified non-parties fulfill the “purpose” of having
“provided agricultural, business assistance, or advocacy
services to Native American farmers,” JA 393 (Original
Settlement Agreement, II.I.), and are thus entitled to receive the
remaining taxpayer money. Congress, however, never
appropriated money for this expense.

Unfortunately, no party before the Court really cares what
Congress authorized. Cy Pres gives the Executive Branch a
win-win: By agreeing to a settlement amount that vastly
overstated the claimants’ monetary damages, the Executive can
use a large dollar amount to reap the political benefits of photo-
op compassion towards a discriminated minority group. At the
same time, the Executive’s agreement to an overstated
damages sum ensures enough money is left in the fund to pay
favored third parties after the claimants are compensated. See,
e.g., Paul F. Figley, The Judgment Fund: America’s Deepest
Pocket and Its Susceptibility to Executive Branch Misuse, 18
U. PA. J. CONST. L. 145, 200 (2015) (explaining that the
Keepseagle settlement was part of an Obama administration
strategy “to neutralize the argument that the government favors
black farmers over . . . Native American[s] . . . and to court key
constituencies”) [hereinafter Figley, The Judgment Fund].
Class counsel gets a piece of the action too: By agreeing to cy
pres distributions, the size of the settlement fund is inflated.
The larger the settlement’s size, the larger class counsel’s fee
award—regardless of how much of the settlement actually pays
injured parties (better known as class counsel’s clients). Even
Appellant’s protest of the cy pres scheme is not entirely
altruistic. He wants the remaining money distributed to
already-compensated class members, not returned to the U.S.
 4
Treasury. In short, everyone apparently presumed a bloodied-
shirt party could be thrown at the taxpayer’s expense. Why risk
Congress being a killjoy? See generally Sharon LaFraniere,
U.S. Opens Spigot After Farmers Claim Discrimination, N.Y.
TIMES, (Apr. 25, 2013),
http://www.nytimes.com/2013/04/26/us/farm-loan-bias-
claims-often-unsupported-cost-us-millions.html [hereinafter
LaFraniere, Spigot].

Nevertheless, the Constitution’s limitations on judicial
power remain, even if “the parties” before a court “cannot be
expected to protect” them. See Commodity Futures Trading
Comm’n v. Schor, 478 U.S. 833, 851 (1986). Judicial restraint
becomes judicial abdication when the parties keep making
mistakes and we keep them from being corrected. Cf. 33 G.K.
CHESTERTON, The Blunders of Our Parties, in THE COLLECTED
WORKS OF G.K. CHESTERTON 312, 312–16 (1990). Like the
Constitution’s other structural features, “[n]either Congress nor
the Executive can agree to waive” the Appropriations Clause.
See Freytag v. Comm’r, 501 U.S. 868, 880 (1991). When the
Constitution’s “structural principle[s]” limiting judicial power
are “implicated in a given case, . . . notions of consent and
waiver cannot be dispositive.” Schor, 478 U.S. at 850–51.

If the Government wishes to achieve certain purposes by
expending taxpayer money to people with no monetary claims
against the United States, a legislative appropriation is
required. No such appropriation exists here. Neither
authorizing nor policing a cy pres distribution scheme in a class
action settlement with the United States is consistent with
constitutional limitations. Because the money was
appropriated to pay claims, and those claims have been
compensated, the more than $380,000,000 that remains here
should be returned to the American People. But, cy pres
permits the judiciary to take more than half the taxpayer money
 5
Congress authorized to pay claims in this case and appropriate
the money for something else. This is not justice. It is not even
law. I respectfully dissent.

I.

The Constitutionality of Cy Pres Distributions Is Before Us

The majority averts its gaze from the Constitution by
invoking the waiver doctrine. But waiver is not proper simply
because “[q]uestions may occur which we would gladly
avoid.” Cf. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404
(1821) (per Marshall, C.J.). Waiver is a proper conclusion
when we follow the doctrine’s guideposts. If those guideposts
tell us “we cannot avoid” a difficult question, then we must
“exercise our best judgment, and conscientiously . . . perform
our duty.” See id. Here, the waiver doctrine provides no
security blanket keeping us from cy pres’s constitutional
problems.

There are two primary reasons why waiver is inapposite
here: (1) this case presents “exceptional circumstances;” and
(2) this case raises structural, jurisdictional limitations on
judicial power that cannot be waived.

Some background information is essential to grasping this
case’s exceptional circumstances and the structural
constitutional limitations it raises:

The Keepseagle case is one of several class actions
attempting to capitalize on successful litigation under the Equal
Credit Opportunity Act (“ECOA”), where African-American
farmers were treated unfairly in loan programs, crop payments,
and disaster payments run by the U.S. Department of
Agriculture. Congress facilitated these cases by amending
 6
ECOA’s statute of limitations. See Stephen Carpenter, The
USDA Discrimination Cases: Pigford, In re Black Farmers,
Keepseagle, Garcia, and Love, 17 DRAKE J. AGRIC. L. 1, 15–
16 (2012) (discussing the statute of limitations problem in
Pigford I). The class litigation involving African-American
farmers was incredibly successful—leading to, most notably,
Congress appropriating a settlement payout of $2,000,000,000
for resolving the Pigford II litigation. See, e.g., Figley, The
Judgment Fund, 18 U. PA. J. CONST. L. at 189–92 (detailing the
African-American farmers’ class litigation).

The success of the African-American class litigation owed
more to politics than law. See, e.g., id. at 193 (“President Bill
Clinton and President Barack Obama favored the farmers’
claims, and their political appointees actively supported the
settlements over the objections of some career officials.”);
LaFraniere, Spigot (quoting Congressman Steve King, who
explained Congress’s appropriation by saying, “[n]ever
underestimate the fear of being called a racist”). But, no matter
how political the Executive’s litigation strategy may have been,
“the [settlement] payments were made in a manner that
respected the Judgment Fund.” Figley, The Judgment Fund, 18
U. PA. J. CONST. L. at 193. Congress “allowed” the African-
American class litigation when it expanded ECOA’s statute of
limitations, and it “appropriated money . . . with full knowledge
of the terms of the agreement” settling Pigford II. See id; see
also Todd David Peterson, Protecting The Appropriations
Power: Why Congress Should Care About Settlements at the
Department Of Justice, 2009 B.Y. U. L. REV. 327, 362 (2009)
(“Rather than leaping over or subverting the limitations
imposed by Congress’s control over the circumstances in
which money judgments may be obtained against the United
States, the Department of Justice went to Congress for the
appropriate authority before it settled the case.”).
 7
Keepseagle, however, has all of these political motivations
but none of the respect for Congress’s control over the purse.
The Executive Branch neither sought a specific appropriation
for this case, nor did Congress ever authorize the Executive to
send taxpayer money appropriated for settled lawsuits to non-
injured third-parties with no claims against the United States.
See Figley, The Judgment Fund, 18 U. PA. J. CONST. L. at 194–
97. Why, you may ask, would the Executive Branch avoid
asking Congress for a specific appropriation for Keepseagle?
Congress, in writing a multi-billion dollar appropriation for
Pigford II, demonstrated its willingness to pay large sums to
resolve discrimination claims against the United States. But,
the difference with Keepeseagle is the purpose of the
settlement. This settlement—as the more than $380,000,000
remaining for cy pres distribution now confirms—went far
beyond compensating injured Native-American farmers; it
sought to ensure favored “nonprofits” and “charities” were
flushed with cash. 1
1
Even outside its cy pres provisions, the Keepseagle settlement is
generally less focused on compensating class members—and more
focused on enacting agriculture policy and compensating class
counsel—than the Pigford consent decree. See Carpenter, The
USDA Discrimination Cases, 17 DRAKE J. AGRIC. L. at 25–26 &
n.261 (explaining that, unlike Pigford, the Keepseagle settlement
provides for “programmatic relief” that will: create a Federal
Advisory Committee called the Council for Native American
Farming and Ranching; create sub-offices within the Agriculture
Department on Indian Reservations; provide for a review of loan
making within the Agriculture Department in consultation with class
counsel; require the Agriculture Department to collect data regarding
Native American farming loans to identify disparities; and create an
Ombudsman that will address concerns of “socially disadvantaged”
farmers and raise them with the Council. Class counsel also received
a bigger benefit in Keepseagle—the settlement allows class
counsel’s fee award to come from a percentage of the common
 8

As the majority acknowledges, when the Keepseagle class
was first certified in 2001, it was certified only for injunctive
relief—the district court deferred the question whether the class
deserved monetary relief. See Keepseagle v. Veneman, 1:99-
cv-03119, 2001 WL 34676944, at *14 (D.D.C. Dec. 12, 2001).
Yet the Judgment Fund does not apply to injunctive relief.
Without class certification for monetary relief, a large
settlement payout was impossible; the Keepseagle plaintiffs
would have to individually litigate any claims for monetary
damages. But the claims of the class claimants were quite
facile, and individually-litigated cases are seldom as lucrative
as class actions. See LaFraniere, Spigot (“Depositions had
revealed many of the individual farmers’ complaints to be
shaky. And federal judges had already scornfully rejected the
methodology of the plaintiffs’ expert, a former Agriculture
Department official named Patrick O’Brien, in the [female
farmers’] case.”); see also Garcia v. Veneman, 224 F.R.D. 8,
16 (D.D.C. 2004) (“The history of the Pigford (black farmers)
class action litigation amply demonstrates that . . . it is the
questions affecting only individual members that
predominate.”); Barry Sullivan & Amy Kobelski Trueblood,
Rule 23(f): A Note on Law and Discretion in the Courts of
Appeals, 246 F.R.D. 277, 279 (2008) (“Where a class is not
certified, the plaintiffs (and their lawyer) may not have the
will—or the resources—to continue with a litigation that [may]
yield only a small recovery and little basis for an award of
substantial attorneys’ fees.”).

settlement fund, rather than a flat fee credited against the class
award). These arrangements gave class counsel an incentive to
inflate the class claimants’ damages, while incentivizing the
Executive Branch to drop its strong legal arguments and settle in
favor of enacting agriculture policy.
 9
For most of this lawsuit’s history, the Executive Branch
was not helping class counsel out of this little conundrum.
From the lawsuit’s filing in 1999 to December 2009, the
Executive Branch “hotly contested” the mere existence of
monetary damages. See Keepseagle v. Vilsack, 118 F. Supp.
3d 98, 105–06 (D.D.C. 2015). Even after “nearly ten years” of
“extensive and contentious discovery and motions practice,”
the Executive Branch insisted on the non-existence of money
damages. See id. Discovery gave the Executive good reason
to remain insistent—“this nearly decade-long battle resulted in
a narrowing of the plaintiffs’ claims.” See id. In fact, in
October 2009, the Executive Branch went so far as to tell the
district court that the narrowing of Plaintiffs’ “theory of the
case and supporting law” was so “considerabl[e]” that it
“call[ed] into question the previous class definition.” See
Gov’t Mem. in Opposition to Plaintiffs’ Mot. for Order
Regarding the Establishment of Class Membership at 4,
Keepseagle v. Vilsack, No. 1:99-cv-03119 (D.D.C. Oct. 23,
2009), ECF 541. Yet, a mere six weeks later, even as the
deadline for the Executive Branch’s submission of a rebuttal
expert report on damages approached, the Justice Department
agreed to stay the case—concluding that “settlement
discussions are appropriate at this time.” See Joint Mot. to Stay
at 2, Keepseagle v. Vilsack, 1:99-cv-03119 (D.D.C. Dec. 3,
2009), ECF 548.

In late 2009, the Executive Branch went from disputing the
existence of money damages to embracing a settlement
agreement that pays the Plaintiffs “nearly 90%” of their
“estimated total damages,” $776,000,000, $680,000,000 of
which came from the Judgment Fund. See Keepseagle, 118 F.
Supp. 3d at 106. Given the $380,000,000 remaining from the
Judgment Fund appropriation after class claimants were
compensated, we now know Plaintiffs’ money damage
 10
estimates were wildly off-base. 2 Class counsel, though,
received a $60,800,000 payday—roughly four times class
counsel’s actual expenses. 3 None of this should have surprised

2
The dearth of class claimants that actually qualified to receive
money damages confirms the inflation. As the Executive Branch
acknowledges here, “[t]he claims process . . . allowed claimants to
obtain substantial recoveries by submitting minimal evidence.”
Gov’t Br. 27 (emphasis added). All that was required to “obtain
$50,000 plus $12,500 in tax relief [under Track A]” was “a written
statement without any further supporting documentation (save proof
of Tribal membership, if applicable).” Id. at 27–28. Under Track B,
a claimant could “obtain a cash payment of up to $250,000 by
meeting a ‘preponderance of the evidence’ standard in an entirely
non-adversarial process (meaning that any showing of discrimination
went unrebutted even if the government could have rebutted the
claim had it proceeded to litigation).” Id. at 28. Moreover, the
Agriculture Department forgave any outstanding federal farm loan
debt for any claimant that prevailed under either Track A or Track B,
even if “the value of that debt relief far exceeded claimants’ cash
recoveries.” Id. Short of giving the settlement money away without
any process at all, it is difficult to see how the Executive Branch
could have made it any easier for class members to collect.
Nevertheless, only 3,601 individuals prevailed in this process—a
sliver of the more than 19,000 claimants predicted by the class
complaint. See Fifth Amended Class Action Complaint at 163
¶ 143, Keepseagle v. Vilsack, No. 1:99-CV-03119, 2001 WL
35985330 (D.D.C. June 27, 2001).
3
Even the Executive Branch could not, initially, swallow the size of
class counsel’s fee award. In contesting this award, the Executive
Branch acknowledged it was willing to pay attorney fees that roughly
doubled its estimate of class counsel’s actual expenses to settle the
case, but it was not comfortable paying what class counsel ultimately
received. See, e.g., Gov’t Resp. to Pls.’ Mot. for Att’y Fees and
Expenses and to Pls.’ Mot. for Approval of Class Representative
Incentive Awards at 2, 7, Keepseagle v. Vilsack, No. 1:99-cv-03119
(D.D.C. Mar. 18, 2011), ECF No. 586; see id. at 9 (“It is possible
 11
the Executive Branch. When it came before this Court to
contest the deferral of class certification on monetary damages,
the Justice Department said the following: “‘This case is, at
bottom, about compensatory relief for past wrongs,’ creating a
threat of ‘hydraulic’ pressure to settle” for a large sum. See In
re Veneman, 309 F.3d 789, 794 (D.C. Cir. 2002) (quoting the
Justice Department). Moreover, the Government’s damages
expert, Economics and Statistics Professor Gordon C. Rausser
of the University of California, Berkeley, “produced a 340-
page report stating that [Plaintiffs’ expert’s damages]
conclusions were based ‘in a counter-factual world’ and that
Native Americans had generally fared as well as white male
farmers.” LaFraniere, Spigot. “‘If they had gone to trial, the
government would have prevailed,’ he said. ‘It was just a
joke,’ he added. ‘I was so disgusted. It was simply buying the
support of the Native-Americans.’” Id. By settling, however,
the Executive Branch never filed its rebuttal expert report.

Both the original settlement agreement and the addendum
appealed here require court approval of the cy pres recipients
class counsel will propose. See JA 393 (Original Settlement
Agreement, II.I); JA 1170 (Proposed Settlement Agreement
Addendum, II.A–B). Court approval is also required for the
“awards” class counsel proposes that these cy pres recipients
receive. See JA 423 (Original Settlement Agreement, IX.7);
JA 1172 (Proposed Settlement Agreement Addendum, IV.A).
No adjudicative standard is set forth for approving either the cy
pres recipients or their distributions, other than that these
recipients fulfill the “purpose” of having “provided
agricultural, business assistance, or advocacy services to

that Plaintiffs’ billing records provide adequate support for the
claimed expenditures, but it is difficult to imagine, for example, how
money spent on ‘conferences’ or ‘media services’ is a reasonable and
necessary litigation expense at that time, and none of the travel
expenses are justified or described beyond ‘travel.’”).
 12
Native American farmers,” e.g., JA 393 (Original Settlement
Agreement, II.I). The proposed addendum adds an equally-
fraught twist: The “primary cy pres beneficiary” will be a
newly-created “Native American Agriculture Fund.” JA 1170
(Proposed Settlement Agreement Addendum, II.B). Class
counsel will select the Trust Fund’s Board of Trustees and its
Executive Director, and a court will be tasked with approving
those selections. See id.

Nothing prohibits class counsel from serving on the Trust
Fund’s Board (or as its Executive Director), nor is the
Executive Branch in any way prevented from “suggesting”
names for class counsel’s nomination (nor, presumably, is a
court so limited). Moreover, this Trust Fund will be tasked
with using its taxpayer-funded cy pres money to, among other
things, “educate the public on agricultural issues, the needs of
Native American farmers and ranchers, and other matters
related to the Trust’s Mission, including by advocating for a
particular position or viewpoint” (the Trust Fund does purport
to be a non-political nonprofit, however). JA 1180.

The settlement agreement here strongly suggests its
exorbitant sum is not the result of, as the Executive Branch
preposterously contends, “the level of sophistication and
effectiveness of the lawyers representing the class’s interests[,]
. . . as well as the legal backdrop against which the parties
negotiated.” Gov’t Br. 23. Rather, political calculations
explain the settlement. Cf. Keepseagle, 118 F. Supp. 3d at 104
(suggesting the Government settled this case because it
“implicate[s] deep-seated interests of justice” even if “the
government’s legal defense may be relatively strong”). An
internal memorandum within the Department of Agriculture
from March 2010 says Keepseagle was part of an Obama
administration effort “to neutralize the argument that the
government favors black farmers over Hispanic, Native
 13
American or women farmers.” LaFraniere, Spigot; see also id.
(“Sweeping settlements with the three groups, [Tony] West
[Assistant Attorney General of the Justice Department’s Civil
Division], argued, would eliminate legal risks and smooth
relations between the Agriculture Department and important
constituencies.”); Press Release, 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, Release No.
0539.10 (Oct. 19, 2010)
https://www.usda.gov/wps/portal/usda/usdamediafb?contentid
=2010/10/0539.xml&printable=true&contentidonly=true
(“[S]hortly after [Secretary Vilsack] took office he sent a
memo to all USDA employees calling for ‘a new era of civil
rights’ for the Department. In February 2010, Secretary
Vilsack announced the Pigford II settlement with black
farmers; the Keepseagle settlement continues as part of that
new era. Meanwhile, Secretary Vilsack continues to pursue the
resolution of all claims of past discrimination against USDA.”).
Reporting also indicates “the payouts pitted [the Secretary of
Agriculture] and other political appointees against career
lawyers and agency officials, who argued that the legal risks
did not justify the costs” to the taxpayer. LaFraniere, Spigot.

My colleague suggests we should ignore this case’s
context because it is not “found in the record.” Concurrence at
1. Of course, the district court not only acknowledged this
context—it expressed sympathy with the Executive Branch’s
preference for political largess over legal defense. 4 See
4
Moreover, the insistence that we must be willfully blind to context
unless it is “test[ed] in the crucible of cross-examination” is
especially puzzling. Concurrence at 1. The context of this case is
not examined to make a factual determination—it helps explain why
“exceptional circumstances” exist to address Mandan’s
 14
Keepseagle, 118 F. Supp. 3d at 104 (“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] [lawyers]
would do well to remove [their] legalistic blinders.”); but see
Authority of the United States to Enter Settlements Limiting the
Future Exercise of Executive Branch Discretion, 23 Op. O.LC.
126, 137 (1999) (“The Attorney General generally possesses
the congressionally conferred power to settle on terms that
would serve the best interests of the United States, but the
considerations and terms that inform and structure a settlement
must be traceable, nonetheless, to a discernible source of
statutory authority.” (emphasis added)) [hereinafter
Settlements Limiting the Future Exercise of Executive Branch
Discretion]. Despite the district court’s obvious sympathy, it
still questioned whether the Judgment Fund Act permitted a cy
pres distribution:

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 [c]ourt
doubts that the judgment fund
from which this money came

constitutional arguments. It makes no sense to insist on a trial when,
by design, “exceptional circumstances” are only invoked on appeal
to consider an argument not raised below.
 15
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.

Keepseagle, 118 F. Supp. 3d at 104. But the district court
reasoned the parties’ consent to the final judgment put the cy
pres issue “beyond the realm of the law and into the realm of
politics and policy.” Id; see also id. at 121 (“[T]he [c]ourt is
not persuaded that it has any authority to declare void portions
of an agreement that was negotiated by the parties, approved
by the [c]ourt pursuant to [Rule] 23, and finalized on appeal
(either by affirmance of the Court of Appeals or by the lack of
any timely appeal).”). In considering the cy pres amendment
at issue here, both the district court and the majority continue
to treat the parties’ consent as a means to circumvent
constitutional limitations on judicial power.

A.

Exceptional Circumstances Are Present

“[A] federal court is more than ‘a recorder of contracts’
from whom parties can purchase [relief].” Local Number 93,
Int’l Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 525
(1986). Congress did not create the Judgment Fund for the
Executive to dispense political favors, but to pay lost or settled
litigation claims against the United States. See 31 U.S.C.
§ 1304(a) (appropriating money “to pay final judgments,
awards, [and] compromise settlements,” and limiting that
appropriation to when: payment is not authorized by another
source; the Treasury Department has certified the payment; and
“the judgment, award, or settlement is payable” under a statute
Congress designated for such payment). “The Framers fully
recognized that nothing would so jeopardize the legitimacy of
 16
a system of government that relies upon the ebbs and flows of
politics to ‘clean out the rascals’ than the possibility that those
same rascals might perpetuate their policies simply by locking
them into binding contracts.” U.S. Tr. Co. v. New Jersey, 431
U.S. 1, 45 (1977) (Brennan, J., dissenting). Even the Executive
Branch has acknowledged that, despite its “sweeping” power
to settle lawsuits, “the Attorney General must, as a general
matter, exercise her broad settlement discretion in a manner
that conforms to the specific statutory limits that Congress has
imposed upon its exercise.” Settlements Limiting the Future
Exercise of Executive Branch Discretion, 23 Op. O.LC. at 136.

When exceptional circumstances are present, “the courts
of appeals” possess “the discretion” to decide “what questions
may be taken up and resolved for the first time on appeal.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976). Exceptional
circumstances are present when “the proper resolution is
beyond any doubt, or where injustice might otherwise result.”
Id. (internal citation omitted). Here, such circumstances exist,
justifying us in addressing Appellant’s challenge to the
settlement agreement’s cy pres provisions.

i.

The Proper Resolution Is Not In Doubt

The Appellant, Keith Mandan (“Mandan”), argues that cy
pres distribution violates the Appropriations Clause and the
Judgment Fund Act. This is his lead argument within his
opening brief. Both the Executive Branch and the Plaintiff-
Appellees briefed this issue too. Moreover, the Executive
Branch is right when it claims Mandan’s argument challenges
cy pres distributions in class action settlements with the United
States generally—not just the cy pres distribution scheme
proposed within the addendum to this settlement agreement.
 17
See Gov’t Br. 18; cf. Appellant Opening Br. 22–29.
Poignantly, the Executive Branch set forth the proper remedy
within its own brief. See Gov’t Br. 24 (“If the remaining $3[8]0
million in taxpayer money indeed remains part of the public
fisc and need not be distributed according to the terms of the
2011 settlement agreement, then the most appropriate
disposition of this unexpectedly large sum would be for it to
revert to the Treasury.” (emphasis added)). This is, therefore,
not a case where “the opposing party los[t] its opportunity to
contest the merits,” or where “an improvident or ill-advised
opinion on the legal issues” is at risk. See Se. Mich. Gas Co. v.
FERC, 133 F.3d 34, 42 n.3 (D.C. Cir. 1998). The result and
issue are squarely raised before us.

“Deciding fully briefed, purely legal questions is a
quotidian undertaking for an appellate court.” See Ass’n of Am.
R.R. v. U.S. Dep’t. of Transp., 821 F.3d 19, 26 (D.C. Cir. 2016).
The concurrence claims the proper resolution of a fully briefed
legal issue can still be in doubt, so “exceptional circumstances”
cannot be invoked on that ground. See Concurrence at 3. This
view does not follow from our precedent. See Hodge v. Talkin,
799 F.3d 1145, 1171 (D.C. Cir. 2015) (“The district court . . .
did not reach Hodge’s vagueness challenge. . . . Here, we find
it appropriate to consider Hodge’s vagueness claim. Not only
does he ask us to address the challenge, but it raises pure
questions of law. And the government joins issue with
Hodge’s arguments on the merits rather than suggesting that
we forbear on the matter.”). To be sure, the Executive Branch
argues waiver. But as noted above, the Executive Branch also
set forth a detailed response on the merits and identified the
proper remedy. This is thus unlike the circumstance in which
we declined addressing constitutional issues surrounding cy
pres. Cf. Democratic Cent. Comm. v. Wash. Metro. Area
Transit Comm’n, 84 F.3d 451, 455 n.2 (D.C. Cir. 1996)
(declining to address the “controversial” use of cy pres
 18
distributions in class actions against the United States because,
unlike here, “[t]his case . . . is not a class action; the
constitutional challenges mentioned above are not at issue
here.”). We cannot be transgressing our discretion by resolving
this issue.

ii.

Invoking Waiver Results In Injustice

By failing to consider Mandan’s cy pres challenge, we
permit a fundamental injustice: cy pres allows the Executive
Branch to circumvent checks on its own power with the
Judicial Branch’s imprimatur. The acceptability of
circumventing the congressional appropriations process under
the guise of Article III is “extraordinarily important and
deserves a ‘definitive answer.’” See Al Bahlul v. United States,
840 F.3d 757, 760 n. 1 (D.C. Cir. 2016) (en banc) (Kavanaugh,
J., concurring) (quoting Al Bahlul v. United States, 767 F.3d 1,
62 (D.C. Cir. 2014) (en banc) (Brown, J., concurring in
judgment and dissenting in part)). This issue raises the proper
relationship of our Federal Government’s three branches when
dealing with the People’s money. Moreover, “other cases in
the pipeline require a clear answer to [this] question.” See id.
As Chief Justice Roberts recently noted, “[c]y pres remedies
. . . are a growing feature of class action settlements.” Marek,
134 S. Ct. at 9 (statement of Roberts, C.J., respecting denial of
certiorari). Other legal commentators have also noted this
trend. See Redish at 661 (“[T]he prevalence of class action cy
pres awards has increased steadily by decade since the 1980s
and has accelerated noticeably after 2000.”). Additionally, cy
pres distribution in this case is not merely dispensing a
“residual” amount—it will dispose of more than half of this
settlement fund. Even by cy pres standards (such as they are),
this is exceptional. See, e.g., In re Baby Prods. Antitrust Litig.,
 19
708 F.3d 163, 174 (3d Cir. 2013) (“Barring sufficient
justification, cy pres awards should generally represent a small
percentage of [the] total settlement funds.”).

In sum, if these circumstances are not exceptional, I do not
know what defines “exceptional circumstances.”

B.

Structural Constitutional Objections Are Present

The source of the “exceptional circumstances” here is its
own basis for not invoking waiver: a “neither frivolous nor
disingenuous” “constitutional challenge” to “the validity of the
. . . proceeding that is the basis for th[e] litigation.” See
Freytag, 501 U.S. at 879. Specifically, the structural issue
before us is the district court’s power to approve and police a
cy pres distribution scheme without congressional
appropriation.

The fact that Mandan consented to the 2011 agreement is
immaterial. “[C]onsent” cannot “excuse an actual violation of
Article III,” see, e.g., Wellness Int’l Network, Ltd. v. Sharif, 135
S. Ct. 1932, 1945 n.10 (2015), and that is what Mandan’s
Appropriations Clause claim presents. 5 We must be willing to

5
Mandan does not detail the Appropriations Clause’s implications
for judicial power to the same extent he does for cy pres distributions
under the Judgment Fund Act. Still, Mandan does fully brief the
implications of cy pres distributions for the separation of legislative,
judicial, and executive powers. See, e.g., Appellant Opening Br. 22–
29. We are thus well within our purview to detail the particular
implications for judicial power. See Kamen v. Kemper Fin. Servs.,
500 U.S. 90, 99 (1991) (“When an issue or claim is properly before
the court, the court is not limited to the particular legal theories
 20
assess claims that the Judicial Branch acted with power
entrusted to another branch of the Federal Government. See
Freytag, 501 U.S. at 879 (“[T]he disruption to sound appellate
process entailed by entertaining objections not raised below
does not always overcome what Justice Harlan called ‘the
strong interest of the federal judiciary in maintaining the
constitutional plan of separation of powers.’” (internal citation
omitted)). 6

Our Founders “lived among the ruins of a system of
intermingled legislative and judicial powers.” Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995). Judges were
under the King’s thumb, while legislatures were often

advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.”);
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (clarifying a
panel is “not precluded from supplementing the contentions of
counsel through [its] own deliberation[s] and research” (emphasis
added)).
6
The concurrence dismisses the cases saying structural,
jurisdictional limitations on Article III are always before us, because
those cases “involv[e] forfeiture—not waiver.” Concurrence at 2.
The concurrence says “[t]he Supreme Court . . . has been clear” on
the difference between the two concepts. See id. I beg to differ. See
Freytag, 501 U.S. at 894 n.2 (Scalia, J., concurring in part and
concurring in the judgment, joined by O’Connor, Kennedy, &
Souter, JJ.) (“[O]ur cases have so often used them interchangeably
that it may be too late to introduce precision. . . . I shall try not to
retain the distinction between waiver and forfeiture throughout this
opinion, since many of the sources I shall be using disregard it.”).
What is clear, however, is the Supreme Court’s admonition in Schor:
constitutional limits on Article III are not to dangle at the mercy of
artfully parsed relinquishment concepts. See 478 U.S. at 850–51
(“notions of consent and waiver cannot be dispositive” if Article III
limitations are at issue (emphasis added)).
 21
obstructed in their ability to make policy. See generally THE
DECLARATION OF INDEPENDENCE (U.S. 1776). In response, the
Founders created a judiciary “truly distinct from both the
legislature and the executive.” THE FEDERALIST NO. 78, p. 465
(Clinton Rossiter ed., 1961) (A. Hamilton). The “judicial
[p]ower” was limited to “render[ing] dispositive judgments” in
“cases” or “controversies” within the scope of federal
jurisdiction. See Plaut, 514 U.S. at 218–19. The judiciary thus
received “no influence over . . . the purse.” THE FEDERALIST
NO. 78, p. 464 (Clinton Rossiter ed., 1961) (A. Hamilton). As
the Constitution gave the appropriations power to the American
People’s elected representatives, our founding document
“assure[s] that public funds will be spent according to the letter
of the difficult judgments reached by Congress as to the
common good and not according to the individual favor of
Government agents or the individual pleas of litigants.” OPM
v. Richmond, 496 U.S. 414, 427–28 (1990); cf. Freytag, 501
U.S. at 880 (“The structural interests . . . are not those of any
one branch of Government but of the entire Republic.”).

Cy pres distribution schemes in class actions against the
United States confound judicial power; reverting us to the time
when the King could circumvent the People’s representatives
through the judiciary. Ninth Circuit Judge Andrew Kleinfeld
described the problem of cy pres in class actions rather
ominously given Keepseagle’s facts:

A defendant may prefer a cy pres
award to a damages award, for
the public relations benefit. And
the larger the cy pres award, the
easier it is to justify a larger
attorneys’ fees award. The
incentive for collusion may be
even greater where . . . there is
 22
nothing to stop [the lawyers for
both sides] from managing the
[cy pres recipient(s)] to serve
their interests . . . .

Lane v. Facebook, Inc., 696 F.3d 811, 834 (9th Cir. 2012)
(Kleinfeld, J., dissenting). 7 Some circuits recognize this
potential for conflicting interests and promise “careful
scrutiny” of cy pres provisions. See, e.g., In re Baby Prods.
Antitrust Litig., 708 F.3d at 175; Mirfasihi v. Fleet Mortg.
Corp., 356 F.3d 781, 785–86 (7th Cir. 2004). Other circuits
attempt to implement cy pres distributions only where “it is not
possible to put those funds to their very best use: benefitting

7
This reality of aligned interest bespeaks a broader problem of
collusion within class actions—often at the expense of individual
class members. See MAYER BROWN, DO CLASS ACTIONS BENEFIT
CLASS MEMBERS? AN EMPIRICAL ANALYSIS OF CLASS ACTIONS 9
(2013),
https://www.mayerbrown.com/files/uploads/Documents/PDFs/2013
/December/DoClassActionsBenefitClassMembers.pdf (“Cy pres
awards and injunctive relief serve primarily to inflate attorney’s fee
awards—and benefit third parties with little or no ties to the putative
class.”); see also Amchem Prods. v. Windsor, 521 U.S. 591, 614,
617–18 (1997) (describing the class action device as
“adventuresome” and fraught with questions of proper judicial
administration). The class action device is supposed to be nothing
more than a mere “species” of joinder. See Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010). When
class actions attempt to circumvent the underlying substantive law,
the device has gone beyond its strictures. See Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 367 (2011) (“[T]he Rules Enabling Act
forbids interpreting Rule 23 to abridge, enlarge, or modify any
substantive right . . . .”). By breaking the bonds of a case or
controversy, cy pres in a class action against the United States comes
at the expense of the underlying substantive law meant to restrict
Government action: Our Constitution.
 23
the class members directly.” Klier v. Elf Atochem N. Am. Inc.,
658 F.3d 468, 475 (5th Cir. 2011); Masters v. Wilhelmina
Model Agency, Inc., 473 F.3d 423, 436 (2d Cir. 2007); In re
Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 35
(1st Cir. 2009). But the fact remains: “It is inherently dubious
to apply a doctrine associated with the voluntary distribution of
a gift to the entirely unrelated context of a class action
settlement, which a defendant no doubt agrees to as the lesser
of various harms confronting it in litigation.” Klier, 658 F.3d
at 480 (Jones, C.J., concurring) (emphasis added). The reality
Judge Jones identified is at play here. The Executive Branch
saw an opportunity to exploit a large settlement award without
having to ask Congress for money, class counsel saw the
promise of a large fee award, and, suddenly, doubtful claims
for monetary damages became a class action worth more than
half-a-billion taxpayer dollars.

Both the district court and Mandan consider the American
Law Institute’s Principles of the Law of Aggregate Litigation
to set forth “reasonable” criteria to police cy pres’s use in class
actions. See Keepseagle, 118 F. Supp. 3d at 116–17; Plaintiff-
Appellant Opening Br. 39–40 (citing Principles of the Law of
Aggregate Litigation § 3.07 (2010) (“ALI Principles”)). Yet
these principles suggest what the Appropriations Clause and
Article III require: Cy pres should never be used in class action
settlements with the United States.

The ALI Principles presume, first and foremost, a
settlement fund’s outstanding monies will fully compensate
class members for their damages. See ALI Principles § 3.07(b).
But that presumption is inapplicable when, as here, the class
members have been fully compensated.

The ALI Principles prefer that outstanding monies are
distributed to those “whose interests reasonably approximate
 24
those being pursued by the class.” Id. § 3.07(c). This is
achieved by reversion to the Treasury, where Congress can—
through the appropriations process—approximate the interests
of the class. Because Congress can reasonably approximate the
class’s interests, reversion to the Treasury is different in kind
from reversion to a private defendant. See ALI Principles
§ 3.07(b) cmt. b (explaining reversion to the defendant “would
undermine the deterrence function of class actions and the
underlying substantive-law basis of the recovery by rewarding
the alleged wrongdoer simply because distribution to the class
would not be viable”). Congress has a long track record of
reasonably approximating the interests of various classes
through the creation of victim compensation funds. 8
Moreover, allowing Congress the opportunity to reasonably
approximate class interests furthers “the underlying
substantive-law basis of the recovery” by honoring Congress’s
limits on the Judgment Fund Act. Reversion to the Treasury
ensures public accountability, avoids conferring standing on
non-injured third parties to contest cy pres distributions, and it
comports with Congress deciding whether the Government
should waive sovereign immunity and be liable for certain
claims in the first instance. 9

8
The circumstances in which Congress has compensated victims are
legion and varied. See, e.g., 12 U.S.C. § 5219a (Home Affordable
Modification Program, created by the Emergency Economic
Stabilization Act of 2008 in response to the subprime mortgage
crisis); 15 U.S.C. § 7246(a) (creating the “Fair Fund” established by
the Sarbanes-Oxley Act of 2002 to distribute disgorgement penalties
to defrauded investors); 49 U.S.C. § 40101 (creating the September
11th Victim Compensation Fund).
9
Reversion to the Treasury is also distinct from escheating to the
state, another alternative to cy pres distributions. Certain
requirements must be met for monies deposited with the judiciary to
escheat to the United States. See 28 U.S.C. § 2041. The issue here,
 25

Cy pres distributions, given their range of potential
beneficiaries, their attenuated relationships to actual class
members, and their focus on fulfilling a general “purpose”
rather than remediating monetary damage, resemble legislative
appropriation. See, e.g., Redish at 624; Goutam U. Jois, The
Cy Pres Problem and the Role of Damages in Tort Law, 16 VA.
J. SOC. POL’Y & L. 258, 260 (2008); cf. also THE FEDERALIST
NO. 75, at 449 (Clinton Rossiter ed., 1961) (A. Hamilton)
(distinguishing legislative and executive power by inquiring
into “the particular nature of the power” at issue, and
identifying “[t]he essence of legislative authority” in the
prescription of general rules for society). Yet Congress made
no such appropriation here, and no part of the appropriations
process is within the judicial power. See Buckley v. Valeo, 424
U.S. 1, 123 (1976) (per curiam) (holding Article III courts may
not exercise “executive or administrative duties of a
nonjudicial nature”); In re BankAmerica Corp. Sec. Litig., 775
F.3d 1060, 1066 (8th Cir. 2015) (“Distribution of funds at the
discretion of the court is not a traditional Article III function,”
rendering such a cy pres provision “void ab initio.”); In re
Compact Disc Minimum Advertised Price Antitrust Litig., 236
F.R.D. 48, 53 (D. Me. 2006) (“Federal judges are not . . .
accustomed to deciding whether certain nonprofit entities are

however, is not that the settlement fund’s remainder is unable to
compensate a claimant for some reason. Cf. id. (“This section shall
not prevent the delivery of any such money to the rightful owners
upon security, according to agreement of parties, under the direction
of the court.” (emphasis added)). Rather, the “rightful owners,” the
class claimants, have already received what they rightfully own (their
respective awards for compensatory damages), and Congress
appropriated money for no other expenditure. The only other
“rightful owners” are the American taxpayers, who own the
remainder pending a decision by their elected representatives to
additionally appropriate the remaining money.
 26
more ‘deserving’ of limited funds than others; and we do not
have the institutional resources and competencies to monitor
that ‘grantees’ abide by the conditions we or the settlement
agreements set.”). Accordingly, regardless of the cy pres
provision’s form, approving recipients and distributions in
class actions against the United States gives a court the very
influence over the purse prohibited by Article III. Cf. THE
FEDERALIST NO. 78, at 465 (Clinton Rossiter ed., 1961) (A.
Hamilton).

Even in class actions where cy pres distributions are not
made from the public fisc—and the comingling of legislative
and judicial power is not implicated—cy pres is problematic
for judicial power. A court risks violating Article III
justiciability requirements should it adjudicate disputes
between cy pres recipients and would-be recipients, as none
would possess an injury-in-fact. See Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 577 (1990) (holding Article III prohibits
federal courts from “decid[ing] questions that cannot affect the
rights of litigants in the case before them” (emphasis added));
see also Klier, 658 F.3d at 481 (Jones, C.J., concurring)
(explaining how cy pres distributions “transform[] the judicial
process from a bilateral private rights adjudicatory model into
a trilateral process”). In this trilateral process, there is no
neutral, adjudicative standard by which a court can determine
the “next best” recipient of settlement money—or what to do
with the money when no “next best” recipient bears any
relationship to the class. See, e.g., In re Motorsports Merch.
Antitrust Litig., 160 F. Supp. 2d 1392, 1399 (N.D. Ga. 2001)
(distributing, via cy pres, approximately $2 million remaining
in a settlement pool from a consumer price-fixing lawsuit to
nine different organizations, ranging from drug prevention
programs, a breast cancer foundation, and a children’s hospital,
 27
even though none of those organizations bore any relationship
to the injured class—Georgia NASCAR fans). 10

Keepseagle reveals that nothing short of the Constitution’s
enumerated limits on power can protect the taxpayer’s money
and the judiciary’s integrity. The Executive Branch has an
independent obligation to assess the constitutionality of its own
conduct. In the first instance, politics should not have been
allowed to permit what the Appropriations Clause would
prohibit. Similarly, in the first instance, the district court
should have never allowed the parties’ consent to override its
independent obligation to not approve agreements that

10
These problems are compounded by the “appearance of
impropriety” created by “the specter of judges and outside entities
dealing in the distribution and solicitation of large sums of money.”
SEC v. Bear, Stearns & Co., 626 F. Supp. 2d 402, 415 (S.D.N.Y.
2009). As numerous press reports and cases indicate, cy pres
distributions are littered with ethical issues. See, e.g., Richard A.
Epstein, Editorial, The Deferred Prosecution Racket, WALL ST. J.
(Nov. 28, 2006, 12:01 AM),
https://www.wsj.com/articles/SB116468395737834160 (criticizing
a Bush administration settlement with Bristol-Myers Squibb that
required the company’s endowment of a—hold on to your hat—chair
of ethics at Seton Hall Law School, the alma mater of the then-U.S.
Attorney for the District of New Jersey); Editorial, Holder Cut Left-
Wing Groups in on $17 Bil BofA Deal, INVESTOR’S BUSINESS DAILY
(Aug. 27, 2014),
http://www.investors.com/politics/editorials/holders-bank-of-
america-settlement-includes-payoffs-to-democrat-groups/
(criticizing a Justice Department settlement with Bank of America as
a “raft of political payoffs to Obama constituency groups”); Adam
Liptak, Doling Out Other People’s Money, N.Y. TIMES (Nov. 26,
2007),
http://www.nytimes.com/2007/11/26/washington/26bar.html.
 28
transgress Article III’s limits. 11 See, e.g., Freytag, 501 U.S. at
896 (Scalia, J., concurring in part and concurring in the
judgment) (“[A] litigant’s prior agreement to a judge’s
expressed intention to disregard a structural limitation upon his
power cannot have any legitimating effect—i.e., cannot render
that disregard lawful. Even if both litigants not only agree to,
but themselves propose, such a course, the judge must tell them
no.”); see also Se. Fed. Power Customers, Inc. v. Geren, 514
F.3d 1316, 1321 (D.C. Cir. 2008) (“[T]he district court could
hardly approve a settlement agreement that violates a statute . .
. .”). But the violation to our Constitution’s structure here is
not merely ex ante to approving this settlement agreement’s cy
pres provisions. This violation is ongoing and is jurisdictional.

The parties have been squabbling over how to modify the
cy pres provisions to their respective benefit for nearly four
years—indeed, that dispute underlies this appeal. See
Keepseagle v. Vilsack, 307 F.R.D. 233, 238 (D.D.C. 2014)
(dating the “potential modification” of the cy pres provisions
to at least August 2013). The Court’s opinion today ensures
this will continue, as approval of cy pres recipients and
distributions—or any additional changes to the cy pres
scheme—will rest solely on what led to the error in the first
instance: substituting the parties’ consent for constitutional
requirements. This sort of Government-By-Autopilot cannot
be reconciled with our Constitution. Cf. Randy Barnett, The
Origination Clause and the Problem of “Double Deference,”
The Volokh Conspiracy, WASHINGTON POST (Mar. 12, 2014),

11
For these reasons, it is inapposite to conclude that invoking waiver
prevents Mandan from “sandbagging” either the Executive Branch
or the district court. The rule of law is undermined if “sandbagging”
includes a party raising constitutional problems that the Executive
Branch and the district court were obliged to consider in the first
instance.
 29
https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2014/03/12/the-origination-clause-and-the-
problem-of-double-deference/?utm_term=.900b86fc81e1
(“[I]f the courts defer constitutional judgments to Congress,
and Congress defers constitutional judgments to the courts,
then no one is considering the Constitution itself. Double
deference is a shell game.”).

“Abdication of responsibility is not part of the
constitutional design.” Clinton, 524 U.S. at 452 (Kennedy, J.,
concurring). But as a result of the majority’s reticence, the
judiciary will now be distributing more than $380,000,000 of
taxpayer money without congressional appropriation and
outside the confines of a case or controversy. “[T]o permit the
appellate court to ignore” this jurisdictional, structural defect
“because of waiver would be to give the waiver legitimating,
as opposed to merely remedial, effect, i.e., the effect of
approving, ex ante, unlawful action by the appellate court
itself.” Freytag, 501 U.S. at 896–97 (Scalia, J., concurring in
part and concurring in the judgment). The Executive Branch
cannot continue to pursue this course, and the Judicial Branch
had no more power to indulge it today than it had the power to
approve the initial cy pres provisions. We had an opportunity
to eliminate this constitutional breach before it results in
material damage to the Constitution’s limitations—the
approval of cy pres recipients and cy pres distributions of
taxpayer money. Waiving away these constitutional problems
is a dereliction of duty.

II.

The Appropriations Clause and the Judgment Fund Act Bar a
Cy Pres Settlement Provision

A.
 30

Congress Only Appropriated Money To Pay “Claims”
Against the United States

Turning to the merits of Mandan’s claim, there is no doubt
that the Keepseagle settlement reveals a dramatic dilution of
Congress’s power of the purse—and an abuse of the judiciary’s
limited role—in furtherance of the Executive Branch’s political
priorities.

Under our Constitution’s Appropriations Clause, the
American People’s elected representatives possess “a
controlling influence over the executive power.” See 1 Joseph
Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES, § 531, p. 384 (Thomas M. Cooley ed., 4th ed. 2011)
(emphasis added). By holding this power, Justice Story
explained, Congress “holds at its own command all the
resources by which a chief magistrate could make himself
formidable.” Id.

The Supreme Court is as stout-hearted as Justice Story. In
its very first Appropriations Clause decision, the Court
unanimously stated “[i]t is a well-known constitutional
provision, that no money can be taken or drawn from the
Treasury except under an appropriation by Congress.” Reeside
v. Walker, 52 U.S. (11 How.) 272, 291 (1850); see also
Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937)
(explaining the Appropriations Clause “was intended as a
restriction upon the disbursing authority of the Executive
department”). Even in more recent years, the Court has not
wavered. See, e.g., United States v. MacCollom, 426 U.S. 317,
321 (1976) (plurality opinion) (“The established rule is that the
expenditure of public funds is proper only when authorized by
Congress, not that public funds may be expended unless
prohibited by Congress.”).
 31

Moreover, the Court has recognized the Clause as a
limitation on the Executive Branch’s disbursement authority in
legal settlements. See Richmond, 496 U.S. at 427–28. The
Executive Branch threatens the Constitution’s structure if it
“were able, by [its] unauthorized oral or written statements to
citizens, to obligate the Treasury for the payment of funds.” Id.
at 428. In that circumstance, “control over public funds that
the Clause reposes in Congress in effect could be transferred to
the Executive.” Id. The question here, therefore, is whether
the Executive’s “statements to citizens,” i.e., what it promised
to private parties via settlement, were “authorized” by
congressional appropriation. Any part of the Executive’s
agreement with the private party not “authorized” by
congressional appropriation cannot be enforced.

Here, as Mandan explains, two congressional statutes
effectuate all that Congress has authorized respecting the
Keepseagle claims: the Judgment Fund Act and the settlements
authority statute. 31 U.S.C. § 1304(a) (Judgment Fund Act);
28 U.S.C. § 2414 (settlements authority statute). These two
appropriations are interrelated—the Judgment Fund Act
authorizes the payment of “compromise settlements” under the
settlements authority statute. See 31 U.S.C. § 1304(a)(3)(A)
(citing 28 U.S.C. § 2414, permitting the “Payments of
judgments and compromise settlements” from district courts
and the Court of International Trade). The Judgment Fund is
not to be used as another source of congressional appropriation
to an agency’s programs. Rather, it is designed to ensure
claimants “receive prompt payment without awaiting a special
appropriation.” United States v. Maryland, 349 F.2d 693, 695
(D.C. Cir. 1965). The settlements authority statute is broad,
but, as explained above, its use must “conform[]” to its
“specific statutory limits.” See Settlements Limiting the Future
Exercise of Executive Branch Discretion, 23 Op. O.LC. at 136.
 32

The settlements authority statute gives the Attorney
General power to settle “claims . . . for defense of imminent
litigation or suits against the United States,” and such claims
“shall be settled and paid in a manner similar to judgments in
like causes.” 28 U.S.C. § 2414 (emphasis added). The
Government Accountability Office (“GAO”) has illuminated
some of these terms. It explains “for defense of imminent
litigation or suits against the United States” means “[t]he
agency must be confronted with a genuine disagreement or
impasse . . . . There must be a legitimate dispute over either
liability or amount.” U.S. GOV’T ACCOUNTABILITY OFF.,
GAO-08-978SP, 3 PRINCIPLES OF FEDERAL APPROPRIATIONS
LAW 14-35 (3d ed. 2008) (citing, inter alia, opinions of the
U.S. Attorney General finding that the compromising parties
must have possessed a “bona fide dispute as to either a question
of fact or of law”) (“GAO, PRINCIPLES”). Further, “a
compromise settlement which exceeds the authority of the
official purporting to make it does not bind the government.”
See id. at 14-34 (citing White v. U.S. Dep’t of Interior, 639 F.
Supp. 82 (M.D. Pa. 1986), aff’d mem., 815 F.2d 697 (3d Cir.
1987); United States v. Irwin, 575 F. Supp. 405 (N.D. Tex.
1983)).

Cy pres distribution in class actions against the United
States cannot satisfy these requirements. As part of settling
Keepseagle, agents of the Executive agreed to send taxpayer
money to as-yet unidentified “nonprofits” and “charities” that
possess no claims against the United States. But the Judgment
Fund Act and the settlements authority statute require the
prompt payment of settled claims against the United States.
The “nonprofits” and “charities” that will receive taxpayer
money via cy pres are—more than five years since the
 33
settlement agreement’s entry12—unidentified. More
fundamentally, they possess no claims against the United
States.

As any potential cy pres recipient is neither involved in
this litigation nor a party to the settlement agreement, the
agreement settled no “bona fide dispute” between any potential
cy pres recipient and the United States Government. Cy pres
recipients will nevertheless receive access to the settlement
fund, akin to being a “compromising party.”

In reality, the eventual cy pres recipients are being tasked
by the Executive Branch and class counsel to fulfill a certain
“purpose:” advocate for and assist Native American farmers
and ranchers. But, as the U.S. Comptroller General has
concluded, when a congressional appropriation limits an
agency’s action to “remedying [a] violation,” it cannot use that
appropriation “to carry out other statutory goals of the agency,”
lest the agency “improperly augment its appropriations for
those other purposes, in circumvention of the congressional
appropriations process.” See Rep. to H. Rep. Subcomm. On
Oversight and Investigations, B-247155, 1993 WL 798227 at
*2 (Comp. Gen. Mar. 1, 1993); see also Availability of
Judgment Fund in Cases Not Involving a Money Judgment
Claim, 13 Op. O.L.C. 98, 104 (1989) (“[A]ny conclusion that
would permit the Judgment Fund to pay out settlements in
cases in which it would not pay out judgments would provide

12
Delay results in a further perversion of the Judgment Fund Act.
Interest accrued on the remaining amount in the settlement fund will
be subject to cy pres distribution too. As of October 2014, more than
$2.5 million in accrued interest was available for cy pres distribution.
See JA 881–82. The longer it takes to “select” cy pres recipients, the
more interest will accrue, and the more money will pass through cy
pres distribution. Compensating class claims is truly ancillary to
such a scheme.
 34
agencies with an incentive to urge settlement of cases in order
to avoid payment from agency funds. We would not lightly
attribute to Congress an intent to create a structure that might
encourage settlements that would not otherwise be in the
interest of the United States.”) [hereinafter Availability of
Judgment Fund].

Congress intentionally separated Judgment Fund
payments from agency appropriation payments. See, e.g.,
VIVIAN S. CHU & BRIAN T. YEH, CONG. RESEARCH SERV.,
R42835, THE JUDGMENT FUND: HISTORY, ADMINISTRATION,
AND COMMON USAGE 6 (2013) (“[T]he Judgment Fund is
limited to litigative awards, meaning awards that were or could
have been made in a court. Litigative awards are distinguished
from administrative awards because the latter are provided for
by statute and are paid from an agency’s appropriation.”
(emphasis added)). “Accordingly, settlements . . . could be
paid from the Judgment Fund if a judgment on that claim
would have been paid from the Fund and no other source was
mandated by law to pay such settlements.” Figley, The
Judgment Fund, 18 U. PA. J. CONST. L. at 162–63 (emphasis
added). 13

A cy pres distribution is not an “award” the Keepseagle
class claimants could have received by prevailing at trial. Had
they proceeded to trial and prevailed on their claims for
monetary damages, they would have received compensation
for their damages. Cf. Augustin v. Jablonsky, 819 F. Supp. 2d

13
In attempting to turn what a “claim” is into a factual dispute, the
concurrence looks for shadows where there are none. See
Concurrence at 4 (“What are ‘like causes’ to this one? And how are
judgments in such cases settled and paid?”). Whether one has stated
a claim can be subject to factual argument, but what a “claim” is—
or, if you prefer, what a “cause” of action is—and what kind of relief
a claim is capable of yielding, rests on the law.
 35
153, 177 (E.D.N.Y. 2011) (noting the “general legal tenet that
compensatory damages should do no more than compensate a
victim for [his] injury”). This compensation is, by definition,
a money judgment payable from the Judgment Fund. But, had
the Keepseagle class claimants prevailed at trial, they could
not, by definition, receive “cy pres damages”—payments that
do not compensate them directly but fulfill a “purpose” “as near
as possible” to compensating them. A cy pres distribution is
thus not equivalent to a money judgment at trial. This renders
the Judgment Fund Act appropriation unavailable for cy pres
distributions. See Availability of Judgment Fund, 13 Op.
O.L.C. at 98–99 (concluding “final judgments . . . are payable
from the Judgment Fund if they require the government to
make direct payments of money to individuals, but not if they
merely require the government to take actions that result in the
expenditure of government funds” (emphasis added)); see also
31 U.S.C. § 1301(a) (“Appropriations shall be applied only to
the objects for which the appropriations were made except as
otherwise provided by law.”).

The arguments set forth by the Executive Branch and the
Plaintiff-Appellees in response cite no supporting legal
authority. The Executive Branch all but concedes cy pres
distributions are not, themselves, compensation for claims
against the United States—it just thinks that concern is
“irrelevant.” See Gov’t Br. 21 (“Because all of the payments
contemplated by the agreement are intended to settle the claims
of class members, it is irrelevant whether an entity that might
receive a distribution itself has a claim against the
government.”). The Plaintiff-Appellee’s make a similar
argument. See Plaintiff-Appellee Br. 47 (“There is no
independent, additional requirement that each specific payment
within that judgment must separately qualify under the
Judgment Fund Act.”). My colleague apparently agrees. See
Concurrence at 3–4 (admitting “the nonprofit organizations
 36
that will receive cy pres distributions out of leftover settlement
funds may not possess any claims against the United States,”
while excusing this because “the Settlement Agreement did in
fact settle claims against the United States”). These
contentions have no basis in law.

On the Executive Branch’s reading, the Attorney
General’s settlement authority allows him to make a mockery
of Congress’s specific statutory limitations. For example, the
Executive Branch could enter into a $1 billion settlement
agreement fully aware only 1% of appropriated Judgment Fund
dollars will be paid to class claimants, while 10% will go to
class counsel and the remaining 89% will be distributed via cy
pres. The Executive Branch, the reasoning would go, was not
“legally required to have entered into a less generous
agreement” simply because nearly all of the settlement fund
will pay for something other than money damage claims
against the United States. See Gov’t Br. 23. If class counsel’s
“sophistication and effectiveness” can sweeten a settlement by
letting the Executive use the settlement to further the
Executive’s political goals instead of compensating class
claimants, the sky is the limit. See id. We are nearly there in
this case, where the majority of taxpayer dollars will not
compensate class members but will pay cy pres recipients.
This robs the Appropriations Clause of any force by
undermining its presumption: Rather than expend public funds
“only when authorized by Congress” in an express
appropriation, “public funds” may be expended from the
Judgment Fund “unless prohibited by Congress.” But see
MacCollom, 426 U.S. at 321 (plurality opinion). Such a view
“increase[s] the power of the President beyond what the
Framers envisioned, . . . compromis[ing] the political liberty of
our citizens, liberty which the separation of powers seeks to
secure.” Clinton, 524 U.S. at 452 (Kennedy, J., concurring).
 37
By binding the United States to these cy pres provisions,
the Executive Branch arrogated the appropriation power from
Congress to itself. See Richmond, 496 U.S. at 427–28. The cy
pres provisions of the parties’ settlement agreement therefore
exceed the Executive Branch’s bargaining authority; they
cannot bind the Government. See GAO, PRINCIPLES, at 14-34;
cf. Int’l Ass’n of Firefighters, 478 U.S. at 526 (“[T]he fact that
the parties have consented to the relief contained in a decree
does not render their action immune from attack on the ground
that it violates . . . the Fourteenth Amendment.”); Settlements
Limiting the Future Exercise of Executive Branch Discretion,
23 Op. O.LC. at 140 (concluding the Attorney General “may
not enter into a decree that would require unconstitutional
government action . . . .”). Most relevant for our purposes,
“Article III federal courts may not enforce unauthorized
executive branch settlements.” See id. at 148. A court cannot
effectuate this settlement’s cy pres provisions (i.e., it cannot
approve cy pres recipients or distributions), nor can a court
approve the addendum to the cy pres scheme at issue here—or
any other addendum permitting cy pres recipients and
distributions.

B.

Remedies Going Forward

The more than $380,000,000 remaining in this
settlement fund should revert to the U.S. Treasury. This
remedy respects Congress’s appropriations power, “corrects
the parties’ mutual mistake” (if we want to call it that) “as to
the amount required to satisfy the class members’ claims,” and
it ensures the judiciary does not “effectuate transfers of funds
from [the Government] beyond what [it] owe[s] to the parties
in judgments or settlements.” See Klier, 658 F.3d at 482
(Jones, J., concurring). The Executive Branch concedes that
 38
this is the proper remedy. See Gov’t Br. 24. Mandan responds
by saying “[t]here is no language in the Settlement Agreement
to support a reverter[,] and courts have consistently rejected
requests by defendants for reverter of residual settlement
funds.” Plaintiff-Appellant Reply Br. 12. But none of
Mandan’s cited cases deal with cy pres’s constitutional
infirmities in class actions against the United States
Government.

Our Court does, and should, “decline[] to adopt
[Appellant’s] suggestion to distribute unclaimed funds to those
individuals who make claims; such a procedure would result in
those class members receiving a windfall from the public fisc
and is inconsistent with the general legal tenet that
compensatory damages should do no more than compensate a
victim for [his] injury.” Augustin, 819 F. Supp. 2d at 177. But
by affirming the district court’s approval of the cy pres
addendum, the majority proves itself a faint-hearted friend of
the public fisc. Even if this Court will not look after the
People’s money, that does not mean the Justice Department—
and Congress—lack means to do so. Cf. Ledbetter v. Goodyear
Tire & Rubber Co., 550 U.S. 618, 661 (2007) (Ginsburg, J.,
dissenting), superceded by statute, Lilly Ledbetter Fair Pay Act
of 2009, Pub. L. No. 111-2, 123 Stat. 5 (“Once again, the ball
is in Congress’[s] court. As in 1991, the Legislature may act
to correct this Court’s parsimonious reading of Title VII.”).

Before the cy pres process begins, the Justice Department
should consider a motion under Federal Rule of Civil
Procedure 60(b)(4) to strike the cy pres provisions within the
settlement agreement as void. No party has raised a Rule
60(b)(4) challenge in this case, and it is not subject to the finite
time constraints restricting other Rule 60(b) motions. See FED.
R. CIV. P. 60(c)(1). This course could remove the cy pres
provisions before recipients are approved and distributions
 39
begin. This should not affect the settlement agreement’s
applicability between the class members and the United
States—the class members have already been compensated,
and the cy pres provisions may be severed from the rest of the
agreement. See JA 438 (Original Settlement Agreement,
XXVI. Severability). Indeed, the parties’ agreement prohibits
any of its provisions from “impos[ing] on the Secretary [of
Agriculture] any duty, obligation, or requirement” that “would
be inconsistent with federal statutes or federal regulation in
effect at the time of such performance.” See id. (Original
Settlement Agreement, XXIII. Duties Consistent with Law and
Regulations).

The Justice Department can argue, as explained above,
that the Executive Branch lacked the constitutional and
statutory authority to enter into these cy pres provisions. It
cannot be required to continue to ask the judiciary to approve
and police a cy pres distribution scheme that violates the
Appropriations Clause and Article III limitations. As the
Executive Branch said when contesting class counsel’s
proposed attorney fee award in this case, “the government has
an interest in ensuring . . . that funds coming ultimately from
federal coffers are not expended in an unnecessary or
unreasonable manner.” Gov’t Resp. to Pls.’ Mot. for Att’y
Fees and Expenses and to Pls.’ Mot. for Approval of Class
Representative Incentive Awards at 2, Keepseagle v. Vilsack,
No. 1:99-cv-03119 (D.D.C. Mar. 18, 2011), ECF No. 586.
What was true then is true now. As objections rooted in the
Constitution’s structural, jurisdictional limits on judicial power
cannot be waived or consented to, and no cy pres process has
occurred yet, objecting to the provisions before the Judicial
Branch effectuates them is certainly “within a reasonable time”
for purposes of Rule 60(b)(4). See FED. R. CIV. P. 60(c)(1);
Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008)
(explaining that, “before a judgment may be deemed void
 40
within the meaning of [Rule 60(b)(4)], it must be determined
that the rendering court was powerless to enter it”).

More broadly, the Justice Department should consider
setting forth specific settlement guidelines disapproving the
use of cy pres in class settlements with the United States. These
guidelines could provide a prelude to congressional action.

As for Congress, it should consider amending the
Judgment Fund Act to explicitly bar cy pres distribution
schemes in class action settlements with the United States. As
Mandan points out, “the Executive Branch may not do
indirectly what it is barred from doing directly.” Plaintiff-
Appellant Opening Br. 29 (citing United States v. Bowman, 341
F.3d 1228, 1240 (11th Cir. 2003)). But this lawsuit reveals the
degree to which implicit limitations on power are contingent
upon the good faith of those exercising power. Cf. Clinton, 524
U.S. at 452–53 (Kennedy, J., concurring) (“The Framers of the
Constitution could not command statesmanship. They could
simply provide structures from which it might emerge. The
fact that these mechanisms, plus the proper functioning of the
separation of powers itself, are not employed, or that they prove
insufficient, cannot validate an otherwise unconstitutional
device.”). Further, to ensure the Executive Branch is not letting
political calculations supplant legal judgments at the taxpayer’s
expense, Congress should also consider authorizing the
Comptroller General to review and report to Congress on any
class action settlement in excess of $100 million.

III.

More than a century ago, Yale Professor William Graham
Sumner famously discussed “The Forgotten Man.” See
William Graham Sumner, The Forgotten Man, in THE
FORGOTTEN MAN AND OTHER ESSAYS 465 (Albert Galloway
 41
Keller ed., 1919). The Forgotten Man is the one left behind in
the Government’s rush to “right” every perceived “wrong.”
Sumner eloquently set forth the formula embraced by the social
engineers of every age:

As soon as A observes
something which seems to him
to be wrong, from which X is
suffering, A talks it over with B,
and A and B then propose to get
a law passed to remedy the evil
and help X. Their law always
proposes to determine what C
shall do for X, or, in the better
case, what A, B, and C shall do
for X.

Id. at 466. “C,” of course, is “The Forgotten Man.” He is “the
hidden taxpayer, the average citizen—not someone who
received, rather someone who paid in.” Amity Shlaes, THE
FORGOTTEN MAN: A NEW HISTORY OF THE GREAT DEPRESSION
128 (2007). As Sumner says of “C,” “He works, he votes,
generally he prays—but he always pays—yes, above all, he
pays.” Sumner, The Forgotten Man, in THE FORGOTTEN MAN
AND OTHER ESSAYS 491 (Albert Galloway Keller ed., 1919).

Keepseagle is Sumner’s formulation come to life, and our
decision today only entrenches the American People’s status as
the Forgotten. The Executive Branch saw a wrong to correct—
discrimination against Native-American farmers. It talked it
over with class counsel, eager to receive a big payday. They
then worked together to ensure a vastly-overinflated settlement
amount that would leave a huge sum to “remedy the evil” via
cy pres. Lost in the midst of their self-congratulation is the
 42
plight of “C,” the American People that pay for the Executive
Branch’s outsized misadventure and class counsel’s fee feast.

To the extent discrimination occurred against Native-
American farmers by the Department of Agriculture, it was the
Department of Agriculture, not the taxpayers of the United
States, that engaged in discrimination. Those allegedly
discriminated against have been compensated by the public
fisc, and that payment occurred via a process that—while ripe
with politics and folly—was ultimately permitted by law. But,
to the extent the Government would like to additionally
account for this discrimination by funding nonprofits and
charities that work to end discrimination against Native
Americans, this should be the decision of the People and their
elected representatives. It should not be the decision of Justice
Department lawyers, class counsel, and the judiciary.

John Adams’s observation, “[o]ur Constitution was made
only for a moral and religious People” and is “wholly
inadequate to the government of any other,” is often quoted.
See Letter from John Adams to Massachusetts Militia, 11
October 1798, Founders Online, NATIONAL
ARCHIVES,https://founders.archives.gov/documents/Adams/99
-02-02-3102. Few, however, explain what he meant. In the
same passage, Adams admonished an America that “assume[d]
the Language of Justice and moderation while it is practicing
Iniquity and Extravagance.” Id. In such a nation, he warned,
“Avarice, Ambition [and] Revenge or Galantry, would break
the strongest Cords of our Constitution as a Whale goes
through a Net.” Id. Jurist Thomas Cooley arrived at the same
sentiment when he wrote a constitution cannot be completely
understood by its words, but must also make reference to “that
body of rules and maxims in accordance with which the powers
of sovereignty are habitually exercised.” THOMAS M. COOLEY,
A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH
 43
REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE
AMERICAN UNION 2 (1868). There are, in short, norms upon
which self-government depends. The Constitution presumes
them, but the character of our people determines whether we
keep them. See THE FEDERALIST NO. 1, at 27 (Clinton Rossiter
ed., 1961) (A. Hamilton) (“[I]t seems to have been reserved to
the people of this country, by their conduct and example, to
decide the important question, whether societies of men are
really capable or not of establishing good government from
reflection and choice, or whether they are forever destined to
depend for their political constitutions on accident and force.”
(emphasis added)). The conduct of those in this case proves
how little the Constitution will matter when good character
ceases to be informed by adherence to one’s oath of office, and
is primarily defined by how generous you are willing to be with
someone else’s money.

I respectfully dissent.