Free Reply to Response to Motion - District Court of Federal Claims - federal

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IN THE LINITED STATESCOURTOF FEDERALCLAIMS NATION OF THE CHEROKEE OKLAHOMA,
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Case 218-89 No.

PATTONBOGGSLLP
Intervenor Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
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Chief JudgeEdward J. Damich

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PATTON BOGGS' JOINT REPLY BRIEF SUPPORTING CROSS-MOTIONFOR SUMMARY JUDGMENT FOR $1,247,501.80

PATTON BOGGS LLP David P. Callet (DC Bar No. 181990) David S. Panzer(DC Bar No. 470677) GreenbergTraurig LLP Ave, NW, Suite 500 800 Connecticut Washington,DC 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected] j¡lllav 26.2006

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TABLE OF CONTENTS TABLE OF CONTENTS .........i

APPENDIX TO PATTON BOGGS' CROSS-MOTIONFOR SUMMARY iii (DOCKETNO. 144).......... ................... JUDGMENTFOR $1,247,501.80 TABLE OF AUTHORITIES. ..................iv

JOINT REPLY SUPPORTINGPATTON BOGGS' CROSS.MOTIONFOR ..............1 80............. SUMMARYJUDGMENT FOR 51,247,50l. ARGUMENT ........... I. ................3

THE SECRETARY'SUNREASONABLEINTERPRETATION OF THE SETTLEMENT ACT CANNOT BE RESUSCITATEDBY ...........3 INAPPLICABLE PRESUMPTIONS. A. Therefore, Judicial Act The Settlement Is Unambiguous; Are Presumptions Inapplicable.............. 1. ..............4

The Plain MeaninqOf The PaymentProvisionRequires P ........... 4 fApprovedìIndividual Tribal Attornev FeeContracts." InterpretedThe Has Unreasonablv The Secretarv Act. Settlement .......6

2. 3. B.

Do JudicialPresumptions Not Applv To Unambisuous ........................8 St"trt"" .-

Act EvenIf The Settlement Were AmbiguousAs To What "As Nor The Indian Deference Approved" Means,NeitherChevron History The Apply Because Legislative CanonOf Construction ..........8 Is Dispositive............ 1. 2. Historv Unambisuouslv Leeislative The Dispositive PattonBoges. Supports ...........8

Historv SupportsThe No ReadineOf The Lesislative .......................9 Interpretation. Secretary's

C.

History Act EvenIf Both The Settlement And Its Legislative NeitherThe Indian CanonOf Construction Were Ambiguous, Deference \MouldApply To This Case............................11 Nor Chevron

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1.

Why Cåevr¿z DeferenceDoesNot Apply. (a)

11

The Secretarv Was Never Empowered To "Administer" The SettlementAct's Attorney Fee Provision¡ She Was Instructed To Pav In ........,..,........12 AccordanceWith It. Even If The Secretary Had Been Empowered To "Administer" The SettlementAct's Attorney Fee Provision. Her Interpretation Should Not Be Accorded DeferenceBecauseShe Never Promulgated Rules Or Resulations.

(b)

l4 .......14

(c) 2. il.

Is Litiqation Stance Moreover.The Secretary's Deference. Not Due Cå¿vron

DoesNot Applv Why The Indian CanonOf Construction And Non-Indians.......15 The Government To Disputes Between

"QUANTUM MERUIT" ANALYSIS IS IRRELEVANT TO PATTON BOGGS' MONEY.MANDATING TUCKER ACT CLAIM AGAINST .................15 THE GOVERNMENT (2004) LEGISLATTONREQUIRING CHEROKEE SUBSEQUENT THAT NATION APPROVAL OF ATTORNEYSFEESUNDERSCORES NO SUCH APPROVALS \ryERE INCORPORATED INTO THE ...,.,..,..........I7 SETTLEMENTACT THE GOVERNMENT,BY IMPROPERLY PAYING OTHERS, CANNOTESCAPEITS OBLIGATION TO PAY PATTON BOGGS.........18 ......................19

IIr.

IV.

CONCLUSION

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APPENDIX TO PATTON BOGGS' CROSS-MOTIONF'ORSUMMARY (DOCKET NO. 144) JUDGMENT FOR 51,247,50L80 TABLE OF CONTENTS EXIIIBIT A .........i

CHEROKEE, CHOCTA\il, AND CHICKASAW NATIONS CLAIMS SETTLEMENT ACT, ..................4-1 ET 2s u.s.c. $$ 1779, SEg. 25 U.S.C. S1.......... $ H.R. Rep.No. 107-632............... Cong.(1936)....... S.J.Res.177,74th SEPTEMBER8, 1988\ilILCOXEN-NIEBELL ATTORNEY'SCONTRACT............ ...........4-19 -.........^-22 ....4-33 .A-34

EXHIBTTB EXHIBIT C EXHIBIT D EXHIBTT I EXHIBIT 2 EXHIBIT 3 EXHIBIT 4

APRIL I7,I989 PATTON BOGGSATTORNEYS' ...........4-39 CONTRACT........... OCTOBER 30, 1995LETTER F'ROMJOE BYRI) TO KATE BOYCE... .........4-43

OCTOBER 6,2003MEMORANDUM FROM JULIAN FITE TO CHAD SMITH, JIM WILCOXEN, AND JOE REEDER REGARDING ATTORNEY FEESFOR .A-44 WORK ON ARKANSAS RIVERBED ISSUES LETTER FROM JAMES MARCH 31,2OO5 WICOXEN AND MARGARET SWIMMER TO CHAD SMITH AND COUNCIL OF THE CHEROKEE ...........4-s0 NATTON OCTOBER 13,2005LETTER FROM JAMES CASON ............4-53 TO CHAD SMITH DECLARATIONOF DAVID S. PANZER,8SQ.................4-56

EXHIBIT 5

EXHIBIT 6 EXHTBIT7

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TABLE OF AUTHORITIES
Federal Cases AD Global Fund v. United States, (2005) 67 Fed.C1.657 Adams Fruit Co. v. Barrett, 4 9 4U . S .6 3 8( 1 9 9 0 ) Andersonv. Liberty Lobby, 4 7 7U . 5 . 2 4 2( 1 9 8 6 ) Bowenv. GeorgetownUniv. Hosp., ( 4 8 8U . S . 2 0 4 1 9 8 8 ) DefenseCouncil,Inc., ChevronU.S.A.,Inc. v. Natural Resources 4 6 7U . S .S 3 7( 1 9 8 4 ) ChíckosawNation v. U.S., 5 3 4U . S .8 4 ( 2 0 0 1 ) . . Dico v. Diamond, 35 F.3d34S(8th Cir. 1994) Director, Office of ll'orkers'Compensation Programs, Department of Labor v. GeneralDynømicsCorp., 980 F.2d74 (IstCir.I992) Gonzalesv. Oregon, 126S.Ct.904 (2006) GuardsmanElevotor Co. v. U.5., 5 0 F e d .C l . s 7 7 ( 2 0 0 1 ) Jøma v. Immigrøtion & CustomsEnforcement,

8, .....7, 11

13 ...........11,

...................2

.................14

12 .............8,

...................6

.....13

.'....14

14 ....11,12,

............'16

:

33s 543 U.S. (2005)
Lamie v. United StatesTrustee,

...................s

(2004) u.s.s26 s40
Little Six,Inc. v. United States, C 2 2 9 F . 3 d1 3 8 3( F e d . i r . 2 0 0 0 ) . Martin v. Occupational Safetyand Health Review Comm'n,

...................6
.'.......'.........8

499 U.S. (r99r) 144

.................13

lv

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Oneida County v. Oneida Indian Nation,

226 U.S. (rgSs) 470
Scatesv. Principi,

'...'...........'14 '...'.-..........16
................'.....'1s

(red. 282E.3dtr62 cir.2002).
Sioux Nation of Indians v. United States, 6 s 0 F . 2 d2 4 4( C t .C l . 1 9 3 1 ) Sisseton& WahpetonBands or Tribes v. United States, 1 4 2 3 F . 2 d 3 8 6( C t .C l . 1 9 7 0 ) SouthCarolinav. CatawbaIndian Tribe, Inc., ( 476U.5.4981936) Thompsonv. CherokeeNøtion, 334 F.3d 1075(Fed.Cir. 2003). ldentifiable Group v. United States, W. Shoshone ( 6 s 2 E . 2 d 4 11 9 8 1 ) . . WagnerSeedCo., Inc. v. Bush, D 9 4 6 F . 2 d , 9 1(S . C .C i r . l 9 9 l ) White Mountain Apache Tribe of Arizonqv. United States, affd.,3l F.3d 1176(Fed' Cir.1994) 30 Fed.Ct. 8 (1993), Federal Statutes Cherokee,Choctaw, and ChickasawNations Claims SettlementAct, Pub., et 25 U.S.C.$$ 1779, seq. Federal Rules R C F C5 6 . . . . . . . . . . . . . Other Authorities Peter S. Heinecke, Chevron and the Canon Favoring Indiøns, 6 0 U . C h i .L . R e v .1 0 1 5( 1 9 9 3 )

. . . . ' . . . . . ' . . . . .1 5 , .3

.................'.8

"""""""""'8

.................15

""""""'12,13

""""""15

Passim

....'.......'..'-3,l7

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TNTHE UNITED STATESCOURTOF FEDERALCLAIMS NATION OF THE CHEROKEE OKLAHOMA,
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THE LINITED STATESOF AMEzuCA, Defendant.
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No. Case 218-89

PATTON BOGGS LLP Intervenor Plaintiff,
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Chief JudgeEdward J' Damich

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THE UNITED STATESOF AMERICA,
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PATTON BOGGS' JOINT REPLY BRIEF SUPPORTING cRoss-MoTIoN F'ORSUMMARY JUDGMENT FOR S1,247'501.80 Plaintiff to Pursuant RCFC56 andthis Court'sMarch 28,2006Order,Intervenor its pattonBoggsLLP ("PattonBoggs")files this JointReplyBrief supporting Cross(the Judgment "Motion")' Motion for Summary fee of Analysisof the Motion beginsandendswith the interpretation the attorney NationsClaimsSettlement and Choctaw, Chickasaw provisionof the Cherokee, payment as Act"),r codified 25 U.S.C.5 1779 thebasis (the Act, pub. Law 107-331 "settlement Act's The Settlement the of PattonBoggs'TuckerAct claim against Government. shallpay to the Indian that: "the Secretary provisionmandates fee attorney payment
t The full text of the SettlementAct is set forth in the Appendix (the "Appendix") to patton Boggs' Cross-Motion for Summary Judgmentat A-l to A-18. All citations herein to A-- refer to the Patton Boggs' Appendix.

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Nations' attomeysthose feesp rovidedfor ín the indívídual tribal øttorneyfee contracts (emphasis added) Indian Nations." 25 U.S.C. $ 1779e(a) as approvedby the respective (the "Payment Provision"). Thus, this Reply focuses,in Argument I, on the statutory constructionprinciples that should guide the Court's analysis. The CherokeeNation's and the Government's other argumentsdeservelittle attention. There never has been a quantum meruit claim in this case,nor could there be. Quantum meruit principles, therefore,do not bear on Patton Boggs' legal entitlement. SeeArgument II. Further, the CherokeeNation seriously underminesits interpretationof the PaymentProvision by relying on its own after-the-factlegislation that purportedto give itself the right to "approve" attorney's fees that Congresshad not previously the required. SeeArgument III. Finally, the Governmentmisunderstands statutorycap on attorney's fees mandatedunder the PaymentProvision. The cap limits feesthat the Secretaryshall pay to comply with the SettlementAct, not her liability for her failure to comply. SeeArgument IV. and as both the CherokeeNation's and the As the Court has stated,2 to Government's responses Patton Boggs' Statementof Undisputed Factsconfirm, there are no material facts in dispute.3 As set forth below, Patton Boggs is entitled to judgment as a matter of law.

at 13, DocketNo. 124,December 2005Transcript 80:ll-12 (...it doesn'tseem to me that there are any facts here in dispute."). 3 Th" Che.okeeNation raisesa number of immaterial "facts," but doesnot dispute any of Patton Boggs' ProposedFindings of UncontrovertedFact. In a failed attempt to obfuscatea simple and straightforwardset of "material" facts articulatedby Patton Boggs, the CherokeeNation proffers ninety-nine additional "facts" that they claim are of "relevant" to the Court's consideration PattonBoggs' Motion. SeeDocketNo. 154-2, CherokeeNation's ProposedFindings of UncontrovertedFacts on Matters Relevant to added);seealso Findings(emphasis but Not Coveredby PattonBoggs' Proposed

2

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ARGUMENT I. THE SECRETARY'S UNREASONABLE INTERPRETATION SETTLEMENT ACT CANNOT BE RESUSCITATED BY INAPPLICABLE PRESUMPTIONS. OF THE

The Secretarycontendsthat: "the SettlementAct requires the Secretaryto execute a purely ministerial act in carrying out the instructionsof the CherokeeNation as in expressed post settlementresolutionsof the Council."a The CherokeeNation and the Governmentdefend this interpretationwith two judicial presumptions Chevron

to factsinsuffrcient Andersonv.LibertyLobby,477IJ.5.242,248 (1986)(immaterial opposesummaryj udgment). The Governmentdid not attemptto introduce any additional facts at all (whether material or merely claimed to be "relevant") but, rather, arguesthat there is a genuine disputethat the Hall Estill law firm had no contractbecauseit "operatedunder" the Wiicoxen-NiebellContract. DocketNo. 151,Defendant'sOppositionto PattonBoggs' Cross-Motion for Summary Judgment("US Opp") at 3' Patton Boggs doesnot contend counsel,only that it was that there was anything improper about utilizing associate improper for the Secretaryto pay anyonewho had no approvedcontract with an Indian Nation. Indeed,the undisputedfacts do show that the Hall Estill firm "operatedunder" counsel"but, underthe Wilcoxen-Niebell the Wilcoxen-NiebellContractas'oassociate Contract, and under this Court's decisions,Hall Estill had to look to Mr. Wilcoxen or Mr. Niebell for payment, and had no independentright to fees from the CherokeeNation. Bands or Tribes v. United Wilcoxen-Niebell Contract at2 (A-35); Sisseton& l4lahpeton ("[O]nly suchattorneysas have actually States,423F.2d 1386, 1391(Ct. Cl. 1970) for appeared claimants can be recognizedas entitled to allowance of fees. Associate and personsotherwiseemployed,must look for their pay to those cãunseland assignees, with whom they have contîacts.") (citation and internal quotation marks omitted). In addition, the Governmentposesa seriesof hypothetical questionswhich do not conform with RCFC 56(h). As there is no proper opposition to Patton Boggs' proffered material facts, the Reply In Support Of Patton Boggs' StatementOf facts should be deemedadmitted. ,See Undisputed Facts (filed concunently herewith). Moreover, the additional facts proffered by the CherokeeNation have no bearing on the outcome of this case. Se¿Patton Boggs' to Response CherokeeNation's ProposedFindings of UncontrovertedFacts on Matters Relèvantto but Not Coveredby Patton Boggs' ProposedFindings (filed concurrently herewith). o JamesE. Cason Deputy Secretary A-s4,October 13,2005letter from Associate to Principal Chief Chad Smith at 2.

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deferenceand the Indian canon of construction.s The judicial presumptionsthey invoke are not applicablebecause(a) the SettlementAct is unambiguous,(b) any judicial presumptionswould be consideredonly after the legislative history - which dispositively resolvesthe matter in Patton Boggs' favor, and (c) thosepresumptionsare not applicable to Patton Boggs' claim againstthe Governmentunder a one-time Act of Congress. A. The SettlementAct Is Unambiguous; Therefore, Judicial Presumptions Are InaPPlicable. 1. The Plain Meanine Of The Payment Provision Requires ÍlPProvedl Fee Contracts." Individual Tribal Attornev

The SettlementAct, interpretedobjectively, explainsthe who, what, when, where, and why of the SettlementAct's PaymentProvision: llho: úl/hatz "...the Secretary..."6 "...shall pay to the Indian Nations' attorneysthosefees provided for in the individual tribal attorney fee contracts as approved by the respectiveIndian Nations."' '(among the Before "allocat[ionl" of "the remaining funds" Indian Nations"s "...from funds to be appropriated pursuant to Section 1779c(c)

lAhenz

Wherez

s Docket 153,Cherokee Nation's MemorandumIn Oppositionto PattonBoggs' Cross-Motionfor SummaryJudgment("CN Opp") at 38-40;US Opp at 4-5 (collectively, the "Oppositions") The Governmentadds a nuancethat Patton Boggs' interpretationof the SettlementAct ascribesto the Secretaryan "adjudicatory role" over "private contractualdisputes."US Opp at 5-6. This Court, however, already has rejectedthe dispute." I2ll9l05 Opinion at Government'sargumentthat this is a"private contractual jwisdiction over PB's claim agøinst the government for l5 ("The court finds it has (emphasis added). money damages.")

6zsu.s.c.g r779e(a).
7 Id. t ¡d $ 1779c(d)("After paymentpursuant to section 1779e of this title, the remaining funds authorizedfor appropriation ... shall be allocated among the Indian added). Nations.. ..")(emphasis

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of this title. . . "e

whv:

"In 1989,the Indian Nations filed lawsuits against the United Statesin the United StatesCourt of Federal Claims (CaseNos. 218-89L and 630- 89L), seekingdamagesfor the United States' use and mismanagementof tribal trust resourcesalong the Arkansas River. Those actions are still pending."lO

This interpretationof the PaymentProvision's plain meaning is supportedby grammar, structure,and logic.ll The CherokeeNation is wrong in assertingthat there is a redundancyin Patton Boggs' interpretation.12There is no redundancy. Paymentof "those fees provided for in their individual attorney fee contractsas approvedby the respectiveIndian Nations," refers to the attorney feesto be paid as they were setforth in the fee contractsor, to put it anotherway, attorneysfees to be paid ín the manner in whích they were approvedby the respectiveIndian Nations in their respectivefee contracts.

n n. to¡d ll

ç fil9e(a). $ 1779,Finding12.

DocketNo. 143,MemorandumSupportingPattonBoggs' CrossMotion For ("PB Memo") at 10-11. Authority cited by the For $1,247,501.80 SummaryJudgment supporting Patton Boggs' CherokeeNation recognizesthe doctrine of the last antecedent, Enforcement,543U.S. 335, & Customs grammaticalinterpretation.Jamø v. Immigration 343 (2005) ("Just last Term, we rejected an argument ... noting that it ran contrary to the accordingto which a limiting clauseor phrase grammaticalrule of the last antecedent, should ordinarily be read as modifring only the noun or phrasethat it immediately the follows.") (quotationsand citation omitted). For obvious reasons, CherokeeNation totally ignores Patton Boggs' structural and logical arguments. Compare PB Memo at 11 withCN Opp at 33-35. 12The CherokeeNation argues: Any tribal attomey fee contract - if it is to be a valid contract in the first place - muit necessarilyalready have been "approved by the respective Indian Nation[]" at the time the contractwas formed. ... Therefore,the "approval" phrase,as construedby Patton Boggs, has no meaning in the statutoryprovision: it is a pure redundancy. CN Opp at 34 (footnote omitted, italics in original).

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But even assumingthat Patton Boggs' interpretationcreatesa redundancyin to "...contractsas approved...," a mere surplusof a coupleof words is far preferable the Oppositions' reading-outan entire clauseof the attorney fee paymentprovision that U.S. 84,94 (2001)("The Nationv. (J.5.,534 obviouslyhasmeaning.SeeChickasow canon requiring a court to give effect to each word'if possible' is sometimesoffset by the canon that permits a court to reject words 'as surplusage'if inadvertently insertedor if

repugnantto the rest of the statute."') (emphasisin original, citation omitted). As the SupremeCourt recently exPlained: Where there are two ways to read the text-either ["as approvedby the in respectiveIndian Nations"] is surplusage, which casethe text is plain; in Indian Nations"] is nonsurplusage..., by the respective o. [,,usapproved is, againstsurplusage which casethe text is ambiguous-applyingthe rule absentother indications, inappropriate. Lamie v. rJnitedStatesTrustee,540U.S. 526,536 (2004). Under PattonBoggs' interpretationproffered - the text is plain, but with an interpretation- the only reasonable alleged surplusage. The CherokeeNation and the Governmentcontendthat the alleged surplus is impermissible, and then read the text as ambiguous. Given thesechoices,this Court should acceptthe interpretationwith the surplusageandnot resort to other tools of constructionto resolve an ambiguity that neednot exist. The Secretarv Has Unreasonablv Interpreted The SettlementAct. Indeed,the Secretary'sinterpretation- that Congressgave the CherokeeNation 2. the power to direct the Secretaryin carrying out her mandatory duty - is so unreasonable

any support for the that the CherokeeNation and the Governmenthave abandoned Secretary'sinterpretationbasedon the languageof the Settlement AcL SeeCN Opp at Nation points to an above,the Cherokee 33-34;US Opp at 4-6. Instead,as discussed

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allegedredundancyin Patton Boggs' interpretationand assailsPatton Boggs' allegedly "spurious[]" application of the rules of statutory construction,and then the Oppositions both attempt to justify the Secretary'sinterpretationthrough judicial presumptionsthat plainly do not apply. SeeCN Opp at 34-35,38-40;US Opp at 4-6. But the Secretary'sinterpretationof the PaymentProvision fails on every conceivablelevel: plain meaning, grammar,structure,and logic. S¿ePB Memo at 101L The SettlementAct doesnot give the CherokeeNation the unilateral right to instruct a cabinet-levelofficial to carry out a Congressionalmandatein any mannerthat the CherokeeNation deemsfit. If the Secretary'sinterpretationwere correct, Congress would not have: o instructedthe Secretary to PaY; o instructedthat the attorneys bepøidiirst; o required payment fuomappropriøtedfunds; r pointed to the attorney fee contrøcls as a referencefor the amount the Secretaryshould PaY;and o limited the amountsto pay the attorneys' intendedto give the Indian Nationsthe right to pay See25 U.S.C. $ 1779e. If Congress the attorneysin any manneï the Indian Nations deemedfit, Congresssimply would have paid money directly to the Indian Nations, without including Section 1779ein the SettlementAct. alternativereading of the SettlementAct, there can be no Without a reasonable ambiguity. AD Gtobal Fundv. UnitedStates,67Fed.Cl. 657,672 (2005) ("Ambiguity in a statute ... normally mearrstwo or more alternativereadings,all having someclaim to respectand none leading to absurdresults.") (citation and quotation marks omitted).

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3.

Judicial Presumptions Do Not Applv To Unambieuous Statutes.

It is beyond peradventurethat neither Chevron deference,nor the Indian canon of construction,apply to an unambiguousstatutelike the SettlementAct.13 B. Even If The SettlementAct \ilere Ambiguous As To What "As Approved" Means, Neither Chevron DeferenceNor The Indian Canon Of Construction Apply BecauseThe Legislative History Is Dispositive. 1. The Dispositive Lesislative History Unambisuously Supports Patton Boggs.

that, in interpreting the SettlementAct, its The CherokeeNation concedes legislative history must be consideredbefore any judicial presumptions. CN Opp at 37 is (citing AD Gtobøl Fund,67 Fed. Cl. at 672). Thís concession the first time in the that there is legislative history directly on briefs that the CherokeeNation acknowledges point. Id. Apparentlyrecognizingthat brevity in languageis perhapsthe most devastatinglypowerful ally of clarity, the Oppositionsstruggleto demean,if not dismiss, impact on this case. The CherokeeNation arguesthat the brevity's clear and inescapable "one-line snippetof legislativehistory" cited by PattonBoggs is a "thin reed" upon Def' Council, Inc., 467 U.S. 837' 843 SeeChevron USA,Inc. v. Natural Res. (19S4) (the Court need only defer to the agency's interpretation "if the statuteis silent or ambiguouswith respectto the specific issue[.] [T]he question for the court is whether the agency's answeris basedon a permissibleconstructionof the statute."); (footnote omitted);SouthCarolina v. CatawbaIndian Tribe,únc.,476U.S. 498, 506 (1986) ("The canon of constructionregardingthe resolution of ambiguities in favor of Indians, however, does not permit reliance on ambiguitiesthat do not exist; nor doesit permit intent of Congress.")(footnote omitted); seealso disregardof the clearly expressed we Nation,334F.3d 1075,1090n.15 (Fed.Cir. 2003)("Because v. Thompson Cherokee what role, was not ambiguous,we need not address concludethat the [statutory] language if any, the Indian canon of construction,or the Chevron doctrine would have here.") (citationsomitted);Little Six,Inc. v. UnitedStates,229F.3d 1383, 1384(Fed.Cir. 2000) ("[T]he panel should not have invoked the Indian canon of construction so quickly. Instead,it should have utilized all availabletools of statutory constructionbefore declaring the statuteambiguousand restoring to a default rule designedþr exceptional caseswhere, despitethe court's best efforts, an ambiguity in the statute remains.") (emphasis added). t'

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which to basePatton Boggs' interpretation. CN Opp at 37. The CherokeeNation strains to disparagethe importance of the legislative history of the SettlementAct's Payment is Provision becauseit knows that this sentence 100% of the relevant legislative history, and its clarity sinks the CherokeeNation's argument: This section authorizesthe Secretaryto pay the Nations' attorneysthose sums owed them under their respectivecontracts,but imposesa cap of ten percentof the Nation's allocation of funds appropriatedunder [$

r779c(c)].
Section1779eof the Statute). If the Settlement A-29,H.R. Rep.No. 107-632(discussing Act actually meant that, irrespectiveof any contracts,the CherokeeNation could dictate to the Secretarywhom to pay, and in what amounts,the legislative history of this of provision would have been entirely different. The absence any referencelo post-hoc Indian Nation approvalsin the legislative history, and its simple referenceto the Secretarypaying "the Nations' attorneysthose sums owed under their respective contracts,"resolvesin Patton Boggs' favor any question about whether the phrase"as approved" modifies the immediately precedingword "contracts" or the word "fees" found earlier in the passage. 2. No Readins Of The Leeislative Historv Supports The Secretaryts Interpretation.

that The Governmentthen ¿Irgues this legislative history can be read to support interpretation.US Opp at 5 n.2 (citing Docket No. 149,the Government's the Secretary's Reply Brief in Support of its Motion to Dismiss ("US Reply"), at4-5). The Government is wrong and fails in its attemptto offer any explanationas to how the legislative history la supportsthe Secretary's interpretation.

la In addition, the CherokeeNation asserts, without explaining, that: "[T]his flegislative] history is not inconsistentwith the Secretary'sand the Nation's

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First, the Government states: The legislative history is wholly consistentwith the Secretary's the interpretation,since the Secretary'sinterpretationimplicitly assumes the (or contracts)encompassing existenceof a tribal attorney fee contract legal servicesperformed by thoseparticular law firms which are claiming attorneys'feesunder Section1779e' US Reply at 5. Patton Boggs agreesthat the legislative history "assumesthe existenceof a tribal attorney fee contract (or contracts)." Only Patton Boggs' interpretation,however, not the Secretary's,accountsfor the PaymentProvision's referenceto "contracts." The Secretary'sconclusion that she is only "to executea purely ministerial act in carrying out in the instructions of the CherokeeNation as expressed post settlementresolutionsof the rebuttedby the legislativehistory's Council," (A-54, October 13, 2005), is expressly referenceto contracts. Second,the Govemment states"the legislative history doesnot suggestanywhere that the Secretaryis to pay, irrespectiveof whether the particular Nation has approvedthe specific fee amount claimed by a particular law firm." US Reply at 5. As an initial matter, Patton Boggs' "specific fee amount" - a ten-percentcontingency was approved by the CherokeeNation when it approvedthe Contract. That is why the SettlementAct requirespayment to attorneyswith approvedcontracts. What the legislative history does not support is contrary Secretarialaction "carrying ou| the instructions of the Cherokee d Nøtionas expresse in post settlement resolutions of the Councíl,"rs irrespectiveof the provisions of the contract!

interpretationof the provision, and tribal approval of fees is not foreclosedby this lone CN sentence." Opp at37. tt added). A-54 (emphasis

t0

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Finally, the Governmentstates: "the legislative history doesnot anywhere suggestthat the Secretarymust, as a court would do, adjudicatebetweenthe fee claims of the various competing law ftrms." US Reply at 5. Again, Patton Boggs agrees. The legislative history certainly doesnot vest authority in the CherokeeNation, and does not specify that even the Secretarycan make a binding determinationof how to apply the limitation on feesimposedby 25 U.S.C. $ 1779e(b).Further,the lack of an adjudication processbetweencompeting firms doesnot justiff giving Patton Boggs' statutorilymandatedattorney's fee to the CherokeeNation. Rather,the Tucker Act empowersthis Court to adjudicatethe Secretary'sfailure to pay Patton Boggs and the SettlementAct empowersthe Court to do so through the entry of the ConsentDecree. Most importantly, this Motion hardly involves adjudication among firms - it seeksonly those statutory fees which undisputably belong to Patton Boggs. there SectionI779e's legislativehistory is unequivocaland dispositive, Because is no needto look to anyjudicial presumption.SeeAD Global Fund, 67 Fed. CI' at 672. c. Even If Both The settlement Act And Its Legislative History \ilere Ambiguous, Neither The Indian canon of construction Nor Chevron DeferenceWould Appty To This Case' 'Whv Cå¿vroz Deference Does Not Applv. 1.

Even assumingarguendo thatany potential ambiguity is not resolvedby Section 1779e'slegislative history, the Secretary'sinterpretationhere is not owed Chevron that Congress deferencebecauseChevron deferenceis warranted"only when it appears delegatedauthority to the agencygenerallyto make rules carrying the force of law." Gonzalesv. Oregon,l26 S.Ct. 904,914-15(2006) (quotationomitted);seealso Adams under Fruit Co. v. Baryett,494 U.S. 638, 650 (1990) ("4 preconditionto deference Chevron is a congressionaldelegationof administrative authority'"). "Chevron

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the deference...isnot accordedmerely because statuteis ambiguousand an to 126 S.Ct. at9l6. Instead,deference an official is involved." Gonzales, administrative agency's statutory interpretationunder Chevron applies only where an agency DefenseCouncil, Inc. v. Natural Resources administersa statute. See Chevron (J.S.A., for is 1nc.,467U.S. 837, 843 (1984). Section1719e not the type of statute which Chevron deferencemight even be applicablebecauseCongressdid not grant the authorityto "administer" it.16 Secretary (a) The Secretary Was Never Empowered To 6úAdminister"The SettlementAct's Attornev Fee Provision: She Was Instructed To Pav In Accordance With It.

The Secretaryis due no deferencewhen "merely authorized [by statute]to process SeedCo., Inc. v. Bush, 946 F.2d 9I8, 92I (D.C. Cir. 1991). It and pay" claims. l4/agner is the agency's "considerableexperienceand expertise"which garnersits rules and interpretationssubstantialdeference. Gonzalesv. Oregon, t26 S. Ct. at 915. Section 1779econtainsno provision calling for the Secretaryto apply such expertisewhen carrying out what the Secretaryherself has called a "purely ministerial" duty of payment. No part of Section I779e even purports to establisha regulatory schemerequiring or warranting administration,but is, instead,simply an affirmative obligation imposedby Congressupon the Secretaryto "pay to the Indian Nations' attorneysthose feesprovided 16 Indeed,the SettlementAct itself draws a distinction betweenthe Tribal trusts feesto be paid under25 U.S.C. in fundscreated 25 U.S.C.51779d andthe attorneys has $ 1779e. The Secretary an ongoingrole over the Tribal trust funds. Id. ç I779d. This administration of Indian Trust Funds is within the scopeof the Departmentof the Interior's unique experience(if not notoriety). Under the PaymentProvision, however, the Secretary'sonly role is that the Secretary"shall pay." Further, the payment of attorney's fees comesf,rrst,before there is even money allocatedto the trust funds that the id. Secretarywill administer. ,See at $ 1779c(d). Once payment is made, the Secretary the PaymentProvision. has no further duty turder

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for in the individual tribal attorney fee contractsas approvedby the respectiveIndian the interpretation statuteis not Nations." 25 U.S.C. $ 1779e(a).Thus,the Secretary's v. to susceptible Chevrondeference.Gonzales Oregon,126 S. Ct. at 9t6-7 (decliningto afford the Attorney General Chevron deferencewhere the statutein question "gives the Attorney generallimited powers to be executedin specific ways."). Further, the Court may not infer an agency's authority to administer a statute. 'Where, as here, the statutedoesnot explicitly delegateto an agencyauthority to administer a statute,the Court simply doesnot owe it any deference. Martin v. and HeølthReviewComm'n,499U.S. 144, 154(1991). In such Safety Occupationol it circumstances, is "inappropriate" to rely upon agencyinterpretationsof statutesin 't7 . order to resolveambiguities AdamsFruit Co.,494 U.S. at 650 Instead,authority to administer the statutethat is not delegatedto an agency remains with the court. The agencyis then aparty to the suit like any other. See Wagner to (accordingno deference the EPA's Seed,946F.2d at 927 (Williams, J., dissenting) interpretation of CERCLA, stating, "we do not review an EPA order, but simply entertain a suit betweenEPA and a private ftrm"), citedfavorably in Dico v, Diamond,35 F.3d of 348,352n.4 (8thCir. 1994)(examiningthe EPA's interpretation CERCLA de novo in the courseof litigation).

SeedCo.,Inc. v. Bush,946F.2d9I8,92l-8 (D.C. Cir. 1991) " Srt Wagner (distinguishing betweenCERCLA, which chargedthe Environmental Protection Agency with the administration of a "complex regulatory scheme"and therefore permitted courts to accord deferenceto the EPA's interpretations,and the FederalTort Claims Act (FTCA) in which an agency's decision to deny a claim was accordedno deference becausethe FTCA "merely authorized [agencies]to processand pay tort claims").

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(b)

Even If The Secretary Had Been Empowered To "Administer" The SettlementAct's Attornev Fee Provision. Her Interpretation Should Not Be Accorded DeferenceBecauseShe Never Promulgated Rules Or Regulations.

Even assumingthat the Secretarywere empoweredto "administer" the Settlement Act's attorney-feepayment provision, the Secretary'sfailure to establishregulations, administrativepractice, or promulgate any rulings pertaining to Section 1779esupportsa finding lhat Chevron deferenceis inappropriatehere. The Secretaryhas neither made "rules carrying the force of law" nor advancedan "interpretation claiming deference [that] was promulgatedin the exerciseof that authority" to establishrules pursuantto Section L779e. Gonzales,126S.Ct. at9l5 (quotationomitted). (c) Moreover. The Secretarv's Litisation StanceIs Deference, Not Due Cl¿¿vroz

Absent an agencyrule, courts "refrain from deciding whether deferenceis due" of the because agency'sposition "concernsmerely ... interpretation the caselaw, not ... interpretationof the controlling statute." Director, Office of Workers' Compensation Progrøms,Departmentof Labor v. GeneralDynamicsCorp.,980 F.2d 74,7811't Cir. 1992) (quotation omified). Here, the Secretarydisclaimed any administration of the statute;yet, in litigation, the Departmentof Justiceallegesthat her interpretationis due there are no Chevron deference,and the only basisto supporther interpretation(because rules or regulations)is her litigation counsel's reading of caselaw and rules of (lniv. Hospital,488U.S. 204,2I2-I3 (1988) SeeBowenv. Georgetown construction. ("We have never applied the deferenceprinciple of those casesto agencylitigating positions that are wholly unsupportedby regulations,rulings, or administrativepractice. offrcial and not to [agency's]counselthe to has ... Congress delegated the administrative responsibility for elaboratingand enforcing statutory commands.")(citation and

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quotation omitted). 2. Why The Indian Canon Of Construction DoesNot Applv To Disputes Between The Government And Non-Indians.

The Indian canon of constructionis "rooted in the unique trust relationship betweenthe United Statesand the Indians."Oneida Countyv. OneidaIndian Nation,470 not [J.5.226,247 (1955),and resolvesambiguitiesin favor of the Indians' interpretation, in favor of a governmentagency's interpretation. Neither the CherokeeNation, nor the Government,has cited any casein which this canon has been applied by the government againsta third party, and we are awareof none. Seegenerally,Pefer S. Heinecke, Chevronand the CanonFavoringIndians,60U. CuI. L. R¡v. 1015(1993). II. TQUANTUM MERUIT'' ANALYSIS IS IRRELEVANT TO PATTON BOGGS' MONEY.MANDATING TUCKER ACT CLAIM AGAINST THE GOVERNMENT. The CherokeeNation and the Governmentcontendthat Patton Boggs is limited to the a "quantum meruit" fee because Contract was terminated.ls The Oppositions l8

Absent a termination "for cause,"the amount "provided for" in Patton Boggs' Contract is a ten-percentcontingency. Compare A-41 (ten-percentcontingency)with A42 ("an equitableportion" in the event of a "for cause"termination). Neither the CherokeeNation, nor the Government,has ever contendedthat Patton Boggs was to Nation's Response Patton terminatedfor cause.S¿eDocketNo. 154-1,The Cherokee Boggs' ProposedFindings of UncontrovertedFact at Fact2 (no referenceto termination Of see generc,llyDocketNo.152,the Government'sStatement GenuineIssues for cause); Of Material Fact In Dispute (same). Therefore,termination of Patton Boggs' Contract without causedid not disqualifu Patton Boggs from receiving the funds that it was due under the SettlementAct. See WhiteMountain Apache Tribe of Arizona v. UnitedStates,30 Fed. Cl. 8, 73,23 (1993) ("attorneys who were not involved in the litigation resulting in the final award and whose last contract with the plaintiff Tribe ended 10 yearsbefore the final award was made" awardeda fee by the Court), aff'd,31 F.3d 1176 (Fed. Cir. 1994); W. were,nonetheless, full awarded 4l ldentifiableGroup v. UnitedStates,652F.2d (1981)(counsel Shoshone judgment was entered); Sioux 100/o contingency fee even though he was fired before Nation of Indians v. UnitedStates,650F.2d 244 (Ct. Cl. 1981)(specialcounselin this case,Mr. Lazarus,was awardeda full l0o/ofee on an award exceeding$100 million, even had expired). though one of his contractswith one of the tribes he represented

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PattonBoggs is pursuing a money-mandating contentionsare without merit because Tucker Act claim againstthe United States,not a contract claim againstthe Cherokee Nation would Nation. l2llgl05 Opinion at 15.re The issueis not whetherthe Cherokee prevail on some contractualdefenseto a breachof contract claim brought in another forum.2OThe issueis only what amountthe Secretarywas instructedto pay, and that

Even if Patton Boggs had beenterminatedfor cause,becauseits Contract "provided for" an "equitable" portion of its ten-percentcontingency, (A-42, Contract at 4), Pauon Boggs would still be entitled to the full amount of its summaryjudgment of which doesnot contestmoniespaid to Mr. Wilcoxen. Assuming,for purposes this Motion, the truth of every fact proffered by the CherokeeNation, but for Patton Boggs' "heroic efforts," (CN Opp at 1), none of the Indian Nations would have recovered anything. There is no disputethat,this case,brought by Patton Boggs, was the only case p.naitrg ut the time of the SettlementAct assertingthe Indian Nations' claims which were iesolrredby the SettlementAct. There is no dispute that the only other attorneywith an approvedõontractthat ever worked on this casewas Mr. Wilcoxen. Mr. Wilcoxen's tâf¡.r limited work in this litigation is readily apparentfrom the Court's docket sheet, and there is no dispute Mr. Wilcoxen is entitled to no more than the $550,000he already has received for that work. See A-51, March 3I,2005 letter. And, there is no dispute that Patton Boggs more than earnedits statutoryfee, for the reasonsset forth in the November3,2005 Declarationof KatharineR. Boyce, Esq.,(DocketNo. 117,Exhibit 15), which are not disputedby any of the so-styled"relevant" facts the CherokeeNations puis fortfr. Thus, this Court could, on the undisputedrecord, award Patton Boggs its ,tut rtory fee basedan "equitable portion" of its ten-percentcontingencY,and it would be entirely "equitable" that Þafton Boggs receivethe balanceof available fees. But no such exerciseis calledfor in this case. le The CherokeeNation's continuedtreatmentof Patton Boggs' Tucker Act claim againstthe Govemment as a contract claim againstthe CherokeeNation brings to mind 'No' that you don't understand?" Indeed,this tñe popular saying, "What is it about Courtis ruling that it hasjurisdiction over Patton Boggs' claim impliedly rejectedthe Oppositions'l'quantum meruit" argument. Compare l2ll9l05 Opinion at 15 ("The court frnås it hasjurisdiction over PB's claim againstthe governmentfor money damages.") ElevatorCo. v. (J.5.,50Fed. CL.577,584(2001)("The Courtof with Guardsman Federal Claims' Tucker Act jurisdiction doesnot extend to claims brought solely on the the theory of quantum meruit because Tucker Act doesnot reach claims basedon implied in law, as opposedto those implied in fact.") (italics in original, contrâcts citations omitted). 20Forthatreason,Scatesv. Principi,282F.3d 1362(Fed.Cir.2002)-acontract case- is not instructive.

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statutoryamount is the "fee[] provided for in the" approvedContract.2l ilr. SUBSEQUENT (2004)LEGTSLATION REQUIRTNG CHEROKEE NATION APPROVAL OF ATTORNEYS FEES UNDERSCORES THAT NO SUCH APPROVALS \ryERE INCORPORATED INTO THE SETTLEMENT ACT. The CherokeeNation arguesthat the Contract is limited to fees"approved" by the Nation, including tribal approvals.CN Opp at 30. Yet, PattonBoggs' fee was Cherokee only subjectto approvals"if any" were required. A-4I, Contract at 3. The Cherokee Nation's after-the-factlegislation, arrogatingto itself a right in 2004 to approvePatton the Boggs' statutory fee, could not more plainly demonstrate fact that no such approvals were required by the SettlementAct in 2002.22

In support of its "quantum meruit" analysis,the CherokeeNation, for the first time, arguesthat the CherokeeNation's recovery under the SettlementAct was the result of individual, allegedly-quantifiablecomponents,one being damagessuffered due to the Government'sconstruction of the McClellan-Ken Navigation Project (the "Project"). CN Opp Il-I2. Neither the SettlementAct, nor Patton Boggs' Contract,break down the CherokeeNation's recovery in the mannerthe CherokeeNation now urges. The SettlementAct mandatespayment of fees as provided for in the individual tribal attorney fee contracts,and Patton Boggs' Contract is for ten-percentof the CherokeeNation's recoverywhetherby litigation or legislativeresolution. The scopeof PattonBoggs' Contract was to assertall claims exceptthosebeing advancedin two specific cases prosecutedby Mr. Wilcoxen and Mr. Niebell - both subsequentlydismissedwithout øzy recovery. Thus, the Project either was excludedfrom the scopeof Patton Boggs' Contract but worth zero as part of those claims dismissedwith prejudice, or it was within the scopeof Patton Boggs' Contract,which culminated in the one and only recovery for the CherokeeNation. Further, even assumingthat the Project did provide a separate, quantifiable recovery for the CherokeeNation to which Patton Boggs is not entitled to its ten-percentshare,the CherokeeNation has failed to introduce any evidenceas to what that value might be (and it did not move under RCFC 56(f) to seekadditional time to aboutalleged discovery). SeeCN Opp at 12 n.27 (speculating obtain suchnecessary without invoking RCFC 56(Ð). evidence, 22This CherokeeNation Act appliesto "Trust funds" "derived from the Act." CN Opp, Exhibit 21, LegislativeAct 5-04 $ 4. But, the feesset asideto Settlement pay the attorneys arenot CherokeeNation funds. The SettlementAct directs "Indian Nations' attorneys" to be paid frst, beþre any "remaining funds" are to be paid into the IndianNations'Trust tunds. 25 U.S.C.$$ 1779c(d),1779e(b).

2l

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ry.

THE GOVERNMENT, BY IMPROPERLY PAYING OTHERS' CANNOT ESCAPE ITS OBLIGATION TO PAY PATTON BOGGS. Finally, the Governmentarguesthat the Court must enforce the fee cap in 25

(the "Fee Cap") and,therefore,PattonBoggs' claim must fail. In U.S.C. $ 1779e(b) particular, the Governmentobjectsto Patton Boggs' exclusion from the Fee Cap the $ 100,000improperlypaid to the Estateof Paul Niebell (whosework resultedin zero recovery) and the $280,524.57paidto the Hall Estill law firm (which had no contract counsel"to Mr. Wilcoxen). US Nation, but was merely "associate with the Cherokee Opp at 6-7.23 the The Govemment is wrong because Fee Cap applies only to monies properly paid under the SettlementAct. The Governmentdoesnot even arguethat it was proper to for the Secretary pay the Estateof Mr. Niebell or the Hall Estill law firm. Id. at3,6-7. The Governmentneither conteststhe undisputedfact that Mr. Niebell's contract entitled his him to zero atlomeysfees because work "[n]ever resultedin favorable disposition of under the'Wilcoxenany issue," nor that the Hall Estill firm was merely associated of Niebell Contract. SeeDocket No. 152,Defendant'sStatement GenuineIssuesof Material Facts In Dispute TT 1, 2. Those paymentsmade in contraventionof the SettlementAct(i.e.,the $380,524.57paidto the Estateof Mr. Niebell and the Hall Estill firm) do not count againstthe Fee Cap, allowing Patton Boggs to be fully paid from SettlementAct funds.2a

with approved " Thr6, even if correct, and the $2 million set asidefor attorneys the Governmenthaving made statutorily unauthorized contractscan be reducedby payments,Patton Boggs still would be entitled to summaryjudgment for 8866,977.23. SeePBMemo at16. 2a It acírally benefits the Government(and makesfar more sense)to concludethat the SettlementAct limited paymentsto attorneyswith approvedcontractsto ten-percent of the Indian Nations' recovery. By excluding theseimproper payments(directedby the

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The Fee Cap limits the amount the Secretarymust pay in compliancewith the SettlementAct, not her liability for ignoring the SettlementAct's money-mandating the PaymentProvision. In the end, the Governmentis liable because Secretaryfailed to comply with the money-mandatingprovision of the Settlement Act.zs CONCLUSION Despite the ream of facts the CherokeeNation denominatesas "relevant," there are no materíal facts in dispute. The CherokeeNation and the Governmenthave effectively admitted every material fact set forth by Patton Boggs, thereby entitling the Patton Boggs to judgment as a matter law. Ultimately, because SettlementAct is money-mandating,requiring the Secretaryto pay Patton Boggs,the only question is "how much is due?" Should the Secretarypay the amountsprovided for in approvedcontracts as the SettlementAct provides, or pay the fees subsequentlydictated by the Cherokee Nation, as the CherokeeNation's self-benefiting, after-the-fact,statuteprovides? If there were ever any doubt (which there is not), then, as the CherokeeNation has now conceded (CN Opp at37), the Court first should look to the legislative history beþre applying any judicial presumptions. The legislative history is unequivocalthat the SettlementAct does not involve anypost-hoc Indian Nation approval. The sum owed under Patton Boggs' Contract is ten-percentof the CherokeeNation's recovery, less the amountsPatton Boggs

CherokeeNation) from the Fee Cap, the entirety of Patton Boggs' summaryjudgment can be paid without using the JudgmentFund. But, while it should matter to the Govemment, it doesnot matter to Patton Boggs whether it is paid from SettlementAct funds or the from the JudgmentFund. " "By mandatingthat the Secretarypay attomeys govemment funds, Congress failed to do so." l2lI9l05 with a causeof action if the Secretary providedthe attorneys 14; seealso id. at 15 ("In the event that the court holds the governmentliable Opinion at to PB for attorney's fees, and if there is no money left in the attorney fee escrow account, the award maybe payable from the judgment fund.") (italics in original).

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was alreadypaid. A-41, Contractat 3. In this Motion, Patton Boggs seeksonly those sumsto which no one else has a legitimateclaim, as set fofh below: Balance Of The Attorney Fee Escrow Fund Future ExpectedAllocation To The Attorney Fee Escrow Fund

s366.977.23 s500,000.00 s280,524.57

MoniesImproperlyPaidOut Of TheAttorney FeeEscrowFundTo The Hall Estill Law Firm - Which HadNo Contract With TheCherokee Nation
Monies Improperly Paid Out Of The Attorney Fee Escrow Fund To The EstateOf Paul Niebell - A Fee"Wholly Contingent"On A Recoverv He Did Not Achieve

s100.000.00

Total: PattonBoggs'Claim For Summary Judsment

$1,247,501.80

Respectfully submitted,

David S.

. 1 8 1 990) .4 7 0 677)

GREEN 800Co í Suite500 DC Washington, 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected] l|l4ay 26,2006

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