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

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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).

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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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