Keith Mandan v. Sonny Perdue, Secretary of Agriculture, et al.

In 2010, the United States Department of Agriculture (“USDA”), represented by the Department of Justice (“DOJ”), obtained $680,000,000 from the Judgment Fund to settle discrimination claims filed by a class of Native American farmers and ranchers under the Equal Credit Opportunity Act (“ECOA”). The settlement approved by the district court included cy pres provisions allowing for distribution of any remaining settlement proceeds to entities that in the past had supported Native American farmers and ranchers. At the conclusion of the claims process, over half of the $680,000,000 (approximately $380,000,000) remained undistributed and subject to cy pres distribution. A subsequent court-approved addendum to the settlement agreement (“Addendum”) results in over $300,000,000 still being subject to distribution via cy pres to uninjured non-parties without claims against the United States. This invasion of Congress’ exclusive Appropriations power by both the Executive and Judicial Branches requires this Court to address the following questions presented:

1. Is it a violation of the Appropriations Clause of the United States Constitution and the separation of powers doctrine, for the Executive Branch to pay, and for the Judicial Branch to approve the payment of, over $300,000,000 from the Judgment Fund appropriation to uninjured non-parties with no claims against the United States?

2. Can a structural constitutional challenge to Executive and Judicial Branch actions be waived or forfeited when those actions violate the Appropriations Clause and separation of powers doctrine? (i)