SMALLWOOD v. LYNCH et al
MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on January 30, 2017. (lcrbw1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM H. SMALLWOOD, JR.
SALLY Q. YATES, Acting Attorney
General of the United States,
MICHAEL YOUNG, Acting Secretary
of the United States Department of
Civil Action No. 16-161 (RBW)
The plaintiff, William H. Smallwood, Jr., filed his Class Action Complaint
(“Compl.”) against Loretta E. Lynch, the former Attorney General of the United States, and
Tom Vilsack, the former Secretary of the United States Department of Agriculture
(“USDA”), seeking declaratory and equitable relief under Section 706 of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706 (2012), based on a settlement agreement between a
class of Native American farmers and the USDA that was approved by another member of
this Court, see Compl. ¶¶ 1–5, 70–78; see also Order on Plaintiffs’ Motion for Final Approval
of Settlement, Motion for Approval of Class Representative Service Awards, and Motion for
an Award of Attorneys’ Fees and Expenses, Keepseagle v. Vilsack, No. 99-3119 (D.D.C.
Pursuant to Federal Rule of Civil Procedure 25(d), Sally Q. Yates and Michael Young have been automatically
substituted as the defendants in this matter.
Apr. 28, 2011). 2 Currently before the Court is the defendants’ Motion to Dismiss (“Defs.’
Mot.”) and the Plaintiff’s Motion for Class Certification and Appointment of Class Counsel
(“Pl.’s Class Cert. Mot.”). Upon careful consideration of the parties’ submissions,3 the Court
concludes that it must grant the defendants’ motion to dismiss and thus deny the plaintiff’s
motion as moot.
The Original Keepseagle Settlement Agreement
On November 24, 1999, a class of Native American ranchers and farmers filed a class
action lawsuit against the USDA, alleging “unlawful and invidious discrimination . . . in the
[USDA’s] administration of the farm loan program.” Compl. ¶ 14. Judge Emmet G. Sullivan of
this Court certified the case as a class action pursuant to Federal Rule of Civil Procedure
23(b)(2). See Keepseagle v. Veneman, 4 No. Civ.A.9903119EGS1712, 2001 WL 34676944, at
*1 (D.D.C. Dec. 12, 2001). The plaintiff, “a member of the Choctaw Nation of Oklahoma,” is a
member of the Keepseagle class. Compl. ¶ 10.
In 2011, the parties in Keepseagle reached a class-wide settlement agreement, which
Judge Sullivan approved after holding a fairness hearing. See Order, Keepseagle v. Vilsack, No.
99-3119 (D.D.C. Apr. 28, 2011) (granting final approval of the Settlement Agreement); Compl.
The Court takes judicial notice of the record in Keepseagle v. Vilsack, No. 99-3119. See Gomez v. Wilson, 477
F.2d 411, 416 n.28 (D.C. Cir. 1973) (recognizing the “authority to judicially notice the record in other litigation”
before the same court).
In addition to the filings already identified, the Court considered the following submissions in reaching its
decision: (1) the defendants’ Memorandum in Support of Motion to Dismiss (“Defs.’ Mem.”); (2) the plaintiff’s
Response in Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp’n”); (3) the defendants’ Reply in Support of
Motion to Dismiss (“Defs.’ Reply”); (4) the Memorandum in Support of Plaintiff’s Motion for Class Certification
and Appointment of Class Counsel (“Pl.’s Class Cert. Mem.”); (5) the Defendants’ Opposition to Plaintiff’s Motion
for Class Certification and Appointment of Class Counsel (“Defs.’ Class Cert. Opp’n”); and (6) the Plaintiff’s Reply
in Support of Motion for Class Certification and Appointment of Class Counsel (“Pl.’s Class Cert. Reply”).
Tom Vilsack, current secretary of the USDA, was automatically substituted as the defendant in Keepseagle. See
Fed. R. Civ. P. 25(d).
¶ 35. The Settlement Agreement “provided for a Total Compensation Fund of $680,000,000
drawn from the Judgment Fund, 31 U.S.C. § 1304 [(2012)].” Compl. ¶ 20. Class members could
choose between two claim tracks to request a settlement award: “Track A Claimant[s] w[ere]
eligible to receive a maximum payment of $50,000, and [ ] Track B Claimant[s] w[ere] eligible
to receive a [maximum] payment of . . . $250,000.” Id. ¶ 23. The plaintiff “received an award
under the . . . Settlement Agreement.” Id. ¶ 10.
The Settlement Agreement also contained a cy pres provision, which provided that “the
Claims Administrator shall direct any leftover funds to the Cy Pres Fund. Class Counsel may
then designate Cy Pres Beneficiaries to receive equal shares of the Cy Pres Fund.” Id. ¶ 29. The
Settlement Agreement defined a “Cy Pres Beneficiary” as “any non-profit organization, other
than a law firm, legal services entity, or educational institution, that has provided agricultural,
business assistance, or advocacy services to Native American farmers between 1981 and the
Execution Date [of the Settlement Agreement].” Id.
“As a condition of settlement, class counsel and USDA agreed that the Keepseagle class
members had to move for dismissal of the case with prejudice to be effective on . . . the date on
which the court entered an order providing final approval of the Settlement Agreement,” id. ¶ 26,
which occurred on April 28, 2011, id. ¶ 35. The class members had 180 days from “the date
upon which an order providing final approval of the Settlement became non-appealable” to
submit their claims, id. ¶ 26, which occurred on June 27, 2011, see Fed. R. App. P. 4(1)(B)(iii)
(stating that a notice of appeal “may be filed by any party within 60 days after entry of
the . . . order appealed from if one of the parties is . . . a United States officer or employee sued
in an official capacity”); see also Keepseagle v. Vilsack, 307 F.R.D. 233, 238 (D.D.C. 2014)
(“No appeal was filed from the Court’s approval of the Agreement.”).
The Modified Settlement Agreement
In August 2013, Keepseagle class counsel informed Judge Sullivan that $380,000,711.89
remained in undisbursed settlement funds, Compl. ¶ 37, and “informed the court that they
intended to propose a modification of the Settlement Agreement” to establish “a new
foundation” because “some of the conditions for the cy pres distribution [were] impractical” due
to the unanticipated larger amount of undisbursed funds, id. ¶¶ 38–39. Thereafter, the Choctaw
Nation of Oklahoma and the Great Plains Nation filed motions to intervene in the Keepseagle
action to object to the proposed modification, id. ¶ 41, which Judge Sullivan denied in November
2014, id. ¶ 43; see also Keepseagle, 307 F.R.D. at 249 (denying the motions to intervene on the
ground that the putative intervenors lacked standing).
Keepseagle class counsel, as well as class representative Marilyn Keepseagle, through
separate counsel, filed motions to modify the Settlement Agreement. See Compl. ¶¶ 42, 45.
Class counsel’s motion “sought immediate distribution of 10% of the undistributed funds to
entities meeting certain specified criteria, with the remaining undistributed funds to be placed in
trust.” Id. ¶ 42. On the other hand, Ms. Keepseagle’s separate motion sought “to either
distribute the undisbursed funds pro rata to the successful Keepseagle claimants or alternatively
to create a renewed claims process to distribute more of the money to individual class members.”
Id. ¶ 45. After a hearing on the motions, Judge Sullivan denied class counsel’s initial motion to
modify the Settlement Agreement and also Ms. Keepseagle’s separate motion for modification,
“and requested that the parties attempt to reach a compromise to address the enormous amount of
undistributed settlement funds.” Id. ¶ 48.
In December 2015, “class counsel filed Plaintiffs’ Unopposed Motion to Modify the
Settlement Agreement Cy Pres Provisions” (the “motion to modify”). Id. ¶ 49. This motion to
modify proposed that three class representatives “would each receive $100,000 for their service
to the class; Prevailing Claimants under the Settlement Agreement would each receive an
additional $18,500[;] the IRS would receive $2,775 on behalf of each Prevailing Claimant; and
the remainder of the estimated $380,000,000 would be available for cy pres distribution.” Id.
¶ 50. “Ten percent or $38 million would be distributed to unidentified non-profit groups
purportedly serving Native American farmers and ranchers prior to November 1, 2010,” id., and
“[a] trust would be created and endowed with the remaining funds to be distributed over a period
not to exceed twenty years,” id.
Judge Sullivan issued an Order allowing any Keepseagle class member to provide written
comments on the motion to modify and speak at the hearing that would be held on the motion.
Order at 1–2, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Dec. 15, 2015). The plaintiff
submitted comments in opposition to the proposed modification, see Comments of Class
Member William H. Smallwood, Jr. to the Unopposed Motion to Modify Settlement Agreement
at 1, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Jan. 20, 2016) (“[The plaintiff] disagrees with
the revised proposal . . . to modify the settlement agreement. His view is that the remaining
funds should be distributed to himself and all other Prevailing Claimants in equal amounts.”),
and also spoke at the hearing, see Transcript of Motion Hearing Proceedings Before the
Honorable Emmet G. Sullivan, United States District Court Judge at 173–75, Keepseagle v.
Vilsack, No. 99-3119 (D.D.C. Feb. 4, 2016). On April 20, 2016, Judge Sullivan rejected the
plaintiff’s position and granted class counsel’s motion to modify the Settlement Agreement, see
Memorandum Opinion at 29, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Apr. 20, 2016), and
that ruling is currently on appeal before the District of Columbia Circuit, see Keepseagle v.
Vilsack, No. 16-5189 (D.C. Cir. July 1, 2016).
This Civil Action
On February 1, 2016, three days before Judge Sullivan held the hearing on the motion to
modify, the plaintiff filed this civil action. See Compl. at 1. The plaintiff alleges that the cy pres
provisions in the original Settlement Agreement, which authorize payments to non-class
members, violate the Appropriations Clause of the United States Constitution and 31 U.S.C.
§ 1304 (the “Judgment Fund statute”), id. ¶¶ 56–58, 72–75, and thus the government’s actions
“agreeing to the distribution of settlement funds,” id. ¶ 76, violate the Constitution and exceed its
statutory authority, id. ¶ 77. The plaintiff “seeks [his] appointment as lead plaintiff
representing . . . [a]ll members of the [Keepseagle] class . . . whose claims were approved under
the Non-Judicial Claims Process of the Keepseagle settlement.” Id. ¶ 63. The defendants seek
the dismissal of this case under both Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
STANDARD OF REVIEW
Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil
Procedure] 12(b)(1) ‘presents a threshold challenge to the court’s jurisdiction.’” Morrow v.
United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it
“lack[s] . . . subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Because it is “presumed that a
cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen, 511 U.S. at 377, the
plaintiff bears the burden of establishing by a preponderance of the evidence that a district court
has subject matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Because the Court concludes that the plaintiff’s case must be dismissed under Rule 12(b)(1), see infra at 7–13, the
Court need not consider the defendants’ requests for dismissal under Rule 12(b)(6).
In deciding a motion to dismiss based upon a lack of subject matter jurisdiction, a district
court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, “a court may consider
such materials outside the pleadings as it deems appropriate to resolve the question [of] whether
it has jurisdiction [in] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18,
22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005). Additionally, a district court must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the
benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). However, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer
scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a
claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (alterations in original) (quoting Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 1998)).
The threshold issue the Court must address is whether the plaintiff satisfies the standing
requirement to pursue his claim against the defendants. In order to establish Article III standing,
the plaintiff must demonstrate (1) injury-in-fact, (2) causation, and (3) redressability. See Lujan,
504 U.S. at 560–61. An injury-in-fact is “an invasion of a legally protected interest which is (a)
concrete and particularized and (b) ‘actual or imminent, not conjectural or hypothetical.’” Id.
at 560 (citations omitted). The plaintiff must establish causation by demonstrating a “causal
connection between the injury and the conduct complained of,” such that the injury is
“trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Id. (alterations in original) (quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). Lastly, the plaintiff must
show redressability by demonstrating a likelihood that “the injury will be ‘redressed by a
favorable decision.’” Id. at 561 (quoting Simon, 426 U.S. at 38). At the motion to dismiss stage,
the plaintiff’s “complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim [of standing] that is plausible on its face.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The defendants argue that the plaintiff “fails to establish [ ] an injury[-in-fact] because he
has no legally protected interest in the undistributed Keepseagle Settlement funds,” Defs.’ Mem.
at 12, because the Settlement Agreement “explicitly limits [the] plaintiff’s payment to the
amount he received through the non-adversarial, non-judicial claims process,” id., and thus the
plaintiff “cannot now claim any entitlement to more than the payment amount provided for by
the Settlement Agreement itself,” id. Therefore, according to the defendants, because the
“plaintiff retains no legal interest in the settlement fund, the prospective use of that fund for cy
pres payments does not cause him any legal injury.” Id. at 13. The defendants cite to Judge
Sullivan’s decision denying the Great Plains Claimant’s motion to intervene in Keepseagle, 307
F.R.D. at 246–48, and argue that its holding applies equally here, see Defs.’ Mem. at 12–13.
In that decision, the Great Plains Claimants sought to intervene in Keepseagle to “modify
the [Settlement] Agreement to provide for additional payments to successful claimants.” 307
F.R.D. at 246. Judge Sullivan denied the motion to intervene after determining that the Great
Plains Claimants had “extinguishe[d] [their] legal claim[s],” id. at 247, and thus had no “legal
interest that faces imminent invasion,” id. at 248. Judge Sullivan noted that “[h]is conclusion
[wa]s entirely consistent with the weight of precedent regarding unclaimed settlement funds,” id.
at 247, and that “[o]nce a settlement agreement is final, ‘all class members who presented their
claims received the full payment due them, and those who did not present claims have waived
their legal right to do so. Thus, the class has no further legal rights in the fund,’” id. (quoting
Wilson v. Southwest Airlines, 880 F.2d 807, 811–12 (5th Cir. 1989)). Judge Sullivan therefore
determined that, because “[t]he Great Plains Claimants have received the full value of their
claims pursuant to the Agreement and thereby fully satisfied those legal claims,” id., “[t]hey
cannot now claim a property right in funds that were intended to pay the claims of other class
members who did not claim their award,” id. at 248.
Notwithstanding Judge Sullivan’s holding that prevailing class members whose legal
claims have been satisfied retain no legal property interest in the remaining settlement funds, see
id. at 247–48, the plaintiff argues that he has established his injury-in-fact because “the [C]ourt
must assume the merits of [the plaintiff’s] legal arguments—chiefly that the cy pres provisions of
the [Settlement] Agreement are unconstitutional and unenforceable,” Pl.’s Opp’n at 9, and that
assumption “invokes the Settlement Agreement’s severability clause,” 6 id., and thus “the
remaining provisions [of the Settlement Agreement should be] enforced to the maximum extent
possible,” id. According to the plaintiff, enforcing the remaining provisions of the Settlement
Agreement results in the “remaining settlement funds [becoming] the property of the Prevailing
Claimants” because the Settlement Agreement states that settlement funds are “to be used ‘for
the benefit of the class,’” id. at 10 (quoting Settlement Agreement §§ VII.F, XIV.A.8,
Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Nov. 1, 2010)). And according to the plaintiff,
“[t]his language [in the Settlement Agreement] creates [his] legal property interest in the
See Settlement Agreement § XXVI, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Nov. 1, 2010) (“Should any nonmaterial provision of this Settlement Agreement be found by a court to be invalid or unenforceable, then (A) the
validity of other provisions of this Settlement Agreement should not be affected or impaired, and (B) such
provisions shall be enforced to the maximum extent possible.”).
remaining funds.” Id. To support this proposition, the plaintiff directs the Court to Klier v. Elf
Atochem North America, Inc., 658 F.3d 468 (5th Cir. 2011), where the Fifth Circuit held that
“[t]he district court abused its discretion by ordering a cy pres distribution instead of distributing
the unused [ ] funds to the members [of a subclass],” id. at 480, because “[i]t is apparent from its
structure that the settlement contract . . . contemplated that each subclass would first draw upon
the sums allocated to it,” id. at 476. See Pl.’s Opp’n at 10–11. The plaintiff argues that “if the
cy pres provisions in Keepseagle are eliminated, then Klier would be indistinguishable and Judge
Sullivan’s decision would have been different.” Id. at 13. The Court disagrees.
In Klier, “[t]he settlement agreement created three subclasses and allocated to each
subclass a portion of the $41.4 million settlement,” 658 F.3d at 472, but the settlement agreement
itself did not contain a cy pres provision, id. at 476. After approximately $830,000 of the funds
for Subclass B went “unused,” id. at 472, and it became clear “that an additional distribution to
the members of Subclass B was not economically feasible,” id. at 473, the “district court asked
the parties for proposals for [the] distribution of remaining funds,” id. The defendant proposed a
cy pres distribution of the funds to local charities, which Klier, a member of Subclass A,
opposed, arguing instead that “an additional distribution to the members of Subclass A was
economically feasible and would be equitable.” Id. at 472, 473. After “the district court ordered
distribution of the remaining funds to . . . charities,” Klier appealed. Id. at 473.
The Fifth Circuit began its analysis by noting, among other things, that a “court cannot
modify the bargained-for terms of the settlement agreement,” id. at 475, and that “[c]y pres
comes on stage only to rescue the objectives of the settlement when the agreement fails to do
so,” id. at 476. The Fifth Circuit noted that “[t]his is not a case where the settlement agreement
itself provides that residual funds shall be distributed via cy pres,” id., and found that “the district
court’s decision to distribute the unused funds via cy pres [found] no support in the text of the
settlement documents,” id. at 477. Furthermore, the Fifth Circuit noted that the settlement
agreement provided that “[t]he Settlement Administrator may petition the District Court for
reallocation of available funds among the [subclasses] on a showing of good cause if . . . he
determines that considerations of equity and fairness require reallocation,” a request that the
Settlement Administrator had made, but the district court had denied. Id.
Judge Sullivan already considered and distinguished Klier in his determination that the
Great Plains Claimants did not demonstrate an injury-in-fact. See Keepseagle, 307 F.R.D. at
248. Judge Sullivan noted that Klier
[wa]s not a case where the settlement agreement itself provide[d] that residual funds
shall be distributed via cy pres, and the Fifth Circuit noted that the relevant
provisions of the Agreement shape the property interest created by the Agreement.
The decision, moreover, related to the use of cy pres even though the excess funds
could have been used to pay claims that were due to another subclass under the
Agreement. Here, any property interest that was shaped or created by the
agreement was limited by the Agreement’s provisions making the Track A
maximum $50,000, and providing for a cy pres distribution of leftover funds from
Id. at 248 (footnote, citations, and internal quotation marks omitted).
The Court agrees with Judge Sullivan’s analysis and concludes that, even “if the cy pres
provisions in Keepseagle are eliminated” for purposes of the Court’s standing analysis, as the
plaintiff urges, see Pl.’s Opp’n at 10–11, the terms of the Settlement Agreement still limit the
plaintiff’s property interest to the monetary caps set forth under Track A or Track B, see
Settlement Agreement § IX.F.6, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Nov. 1, 2010)
(“Notwithstanding any other provision, no Class Member shall receive a total cash payment of
more than his or her Provisional Track A Award or Provisional Track B Award.”). The Court’s
analysis is dictated by the terms of the Keepseagle Settlement Agreement, which does not
contain any provisions like those in the Klier settlement agreement that authorized the district
court to “make changes to the terms . . . as necessary for the benefit of the Settlement Class
Members” and allowed “[t]he Settlement Administrator [to] petition the District Court for a
reallocation of available funds [to the class members].” Klier, 658 F.3d at 477. Therefore, the
language in the Settlement Agreement here cannot, as the plaintiff contends, “create [the]
[p]laintiff’s legal property interest in the remaining funds,” Pl.’s Opp’n at 10, because, even if
the cy pres provisions did not exist, the language in the Settlement Agreement limiting class
members’ awards to those provided by Track A and Track B dictates that the unclaimed funds
would still constitute “funds that were intended to pay the claims of other class members who did
not claim their award,” Keepseagle, 307 F.R.D. at 248 (emphasis added), and the plaintiff has no
property right in the unclaimed funds because he, like the Great Plains Claimants, extinguished
his legal claim when he received his settlement award, see id.; see also Compl. ¶10. 7
Furthermore, the Court is not convinced that the two Settlement Agreement provisions stating
generally that the settlement funds are to be used “for the benefit of the class,” see Settlement
Agreement §§ VII.F, XIV.A.8, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Nov. 1, 2010), alter
this conclusion because, as stated above, a more specific provision states that, “[n]otwithstanding
any other provision, no Class Member shall receive a total cash payment of more than his or her
Provisional Track A Award or Provisional Track B Award,” id. § IX.F.6; see GenopsGroup LLC
v. Pub. House Invs. LLC, 67 F. Supp. 3d 338, 343 (D.D.C. 2014) (reiterating the “familiar
principle of contract interpretation, that ‘specific terms and exact terms are given greater weight
The plaintiff also cites Slipchenko v. Brunel Energy, Inc., No. H-11-1465, 2015 WL 5332219 (S.D. Tex. 2015), for
the proposition that the unclaimed settlement funds are property of the prevailing claimants. However, Slipchenko
is distinguishable from the present case because the settlement agreement in Slipchenko contained a provision
allowing remaining settlement funds to be reallocated among class members on a pro rata basis. See id. at *1
(“[A]ny remaining amounts may be Re-Allocated among Class Member[s] . . . on the same pro rata formula as set
forth above . . . .”).
than general language’” (quoting Wash. Auto. Co. v. 1828 L St. Assocs., 906 A.2d 869, 880
(D.C. 2006)). Accordingly, because the plaintiff extinguished his legal claim against the USDA
by participating in the claims process and receiving an award as set forth in the Settlement
Agreement, Compl. ¶ 10, the plaintiff has no “legal interest that faces imminent invasion,”
Keepseagle, 307 F.R.D. at 248. Thus, the plaintiff has failed to demonstrate an injury-in-fact. 8
Because the plaintiff has not demonstrated an injury-in-fact sufficient to confer standing,
the Court grants the government’s motion to dismiss the complaint in this case because the Court
lacks the requisite subject matter jurisdiction to consider the merits of the plaintiff’s claims.
Also, because the Court concludes that it must dismiss with prejudice the plaintiff’s complaint
for lack of subject matter jurisdiction, the Court need not consider the USDA’s alternative
argument to dismiss the complaint for failure to state a claim under Rule 12(b)(6), 9 and the
Plaintiff’s Motion for Class Certification and Appointment of Class Counsel is denied as moot.
Because the Court decides that the plaintiff lacks the requisite injury-in-fact to pursue his claim against the
defendants, it need not consider the elements of causation and redressability. However, the Court agrees with Judge
Sullivan’s conclusion that “any injury the Great Plains Claimants may suffer by virtue of not receiving additional
payments beyond those received to satisfy their claims is not causally linked to an action of the defendant in this
case; rather it is a product of their assent to and participation in the Agreement,” Keepseagle, 307 F.R.D. at 248 n.9,
and concludes that the plaintiff similarly has not established causation. As for redressability, the Court concludes
that it is unable to redress the plaintiff’s injury because Judge Sullivan has already upheld the original cy pres
provisions of the Settlement Agreement, see Keepseagle v. Vilsack, 118 F. Supp. 3d 98, 122 (D.D.C. 2015) (noting
that, despite “[t]he truly terrible facts of the case before this Court [that] arguably cry out for a resolution that does
not result in $380,000,000 being distributed as cy pres where class members are readily identifiable and may either
prove their previously unsuccessful claims or prove that they suffered damages in excess of what they already
received[,] . . . the Court is bound to the final judgment proposed by the parties and approved by the Court after full
compliance with Rule 23 procedures—an approval to which no class member objected in relevant part or appealed
from at all”), and this Court refuses under res judicata and collateral estoppel principles to second-guess an order
issued by another member of this Court.
Furthermore, the Court notes that the plaintiff may have a mootness problem, given that his complaint challenges
the cy pres provisions of the original Settlement Agreement, which have since been modified. See Memorandum
Opinion at 1–2, Keepseagle v. Vilsack, No. 99-3119 (D.D.C. Apr. 20, 2016) (approving the modification of the cy
pres provisions). That modification is currently on appeal before the District of Columbia Circuit, where counsel for
the plaintiff in this case is representing another Keepseagle class member who is challenging the modified cy pres
provisions on grounds similar to those advanced by the plaintiff in this case. See Brief for Plaintiff-Appellant Keith
(continued . . . )
SO ORDERED this 30th day of January, 2017. 10
REGGIE B. WALTON
United States District Judge
( . . . continued)
Mandan at 19, Keepseagle v. Vilsack, Nos. 16-5189, 16-5190 (D.C. Cir. Oct. 24, 2016) (“The district court
committed an error of law in approving the Addendum, which in violation of the Appropriations Clause, the
Judgment Fund Act, and the settlements authority statute, allows money taken from the Judgment Fund to be
distributed via cy pres to uninjured non-parties with no claims against the United States.”).
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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