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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Consolidated Case No. 89-218 L ___________________________________________ THE CHEROKEE NATION OF OKLAHOMA, ) ) Plaintiff, ) ) PATTON BOGGS, ) ) Plaintiff-Intervenor, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________ ) ___________________________________________ THE CHOCTAW NATION OF OKLAHOMA ) AND THE CHICKASAW NATION, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) ___________________________________________)

No. 89-218 L

Chief Judge Edward Damich

No. 89-630 L

DEFENDANT'S REPLY TO PATTON BOGGS' MEMORANDUM OPPOSING THE GOVERNMENT'S MOTION TO DISMISS, OR , IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Introduction On February 28, 2006, the Defendant filed a motion to dismiss Patton Boggs' Complaint-in-Intervention , or, in the alternative, for summary judgment. On March 20, 2006,

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Patton Boggs filed its opposition to the government's motion. The government sought an enlargement of time until April 24, 2006 to file its reply to PB's opposition which the Court granted. SUMMARY OF ARGUMENT Only the government's interpretation of Section 1779e(a) of the Settlement Act (the attorney fees provision) resolves the ambiguous language thereof in favor of the Cherokee Nation, in accordance with one of the fundamental canons of construction of Indian legislation. PB's contention that the payments made to three other law firms/attorneys were improper is premised upon its erroneous construction of Section 1779e(a). Finally, the "attorney fees" provision of the Settlement Act, even if money mandating, is not money mandating with respect to Patton Boggs.

ARGUMENT I. THE CRUCIAL DISTINCTION BETWEEN THE GOVERNMENT'S INTERPRETATION OF SECTION 1779e(a) AND THAT OF PATTON BOGGS IS THAT THE GOVERNMENT'S INTERPRETATION RESOLVES THE STATUTORY AMBIGUITY IN FAVOR OF THE CHEROKEE NATION. The essence of the government's argument on the conflicting interpretations of Section 1779e of the Settlement Act (25 U.S.C. 1779e(a)) - - the attorneys' fee provision of the Act - - is that both its interpretation of Section 1779e and that of Patton Boggs result in making certain words in Section 1779e(a) surplusage, in violation of the general rule of statutory construction that a statute should be construed in such a way as to render no word(s) superfluous, "if it can be prevented." [Emphasis supplied] (Gov.'s Mot. to Dismiss at 10). Here, it does not appear

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possible to prevent/avoid a construction which does not render some words in Section 1779(a) redundant or surplusage. Accordingly, the crucial distinction between the conflicting interpretations is that only the government's interpretation resolves the ambiguity in Section 1779e(a) in favor of the Cherokee Nation. In other words, only the government's interpretation takes into account a most fundamental Indian canon of construction of federal Indian statutes - - namely, that ambiguities in federal Indian legislation must be resolved in favor of the affected Indian tribe or Indians. Patton Boggs argues that the Settlement Act's attorneys' fee provision is "unambiguous." Patton Boggs also contends, in effect, that "ambiguity" only arises when there are "two or more reasonable, alternative readings" of a statutory provision and that the "Secretary's untenable interpretation of the Settlement Act does not create an `ambiguity' . . . " [Citation omitted] PB Opp. at 6. But, the Court should give this argument short shrift, since Patton Boggs effectively conceded that the language of Section 1779e(a) is ambiguous in its Supplemental Memorandum, filed November 3, 2005, at 22-23. Patton Boggs makes much of the fact that the government concedes that both PB's interpretation of Section 1779e(a), and the Defendant's interpretation have the effect of rendering certain words of subsection (a) superfluous. See Defendant's Motion to Dismiss at 10. However, the Secretary's construction rendering the words "provided for in the individual tribal attorney fee contracts" is far less superfluous than Patton Boggs' construction which renders the phrase "as approved by the respective Indian nations" totally superfluous. This is because under the Secretary's construction it is implicit that the Secretary would not order the distribution of monies from the attorney fees escrow account to pay attorneys' fees whose services were not

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encompassed (directly, or, indirectly) by a tribal attorney fee contract (or contracts) executed with the CNO, or which were premised solely upon a quantum meruit basis, even if the CNO had approved these fees.1/ Indeed, the October 13, 2005 letter from Associate Deputy Secretary James E. Cason to the CNO specifically references the "contract between James G. Wilcoxen and Paul Niebell and the Cherokee Nation." This letter also cites a memorandum prepared by the General Counsel for the CNO, Julian Fite. The 2003 Fite memorandum, in turn, references the Wilcoxen-Niebell contract and states that the Hall Estill law firm was "operating under Wilcoxen's contract." See Attachment hereto (a copy of this memorandum) at 4. In sum, the CNO's General Counsel concluded that the services performed by Wilcoxen & Wilcoxen, Paul Niebell and Hall Estill were encompassed by the Wilcoxen & Wilcoxen (or Wilcoxen-Niebell) contract - - a tribal attorney fee contract which had been executed with the CNO and approved by the Secretary, according to PB. As for the decision of South Carolina v. Catawba Indian Tribe, 476 U. S. 498 (1986), upon which Patton Boggs relies, this case can be factually distinguished because the language of the governing federal legislation in that case with respect to the issue of whether the real property law of the State of South Carolina applied to the Tribe was quite clear. Finally, we do not agree with Patton Boggs' argument that the legislative history of Section 1779e should preclude the application of the Indian canon of construction referenced

1/

PB argues that neither Hall Estill nor Paul Niebell had separate, individual tribal attorney fee contracts with the CNO. However, Paul Niebell's services were covered by the WilcoxenNiebell contract with the CNO and so were the services of Hall Estill which was "operating under the Wilcoxen contract" See Attachment at 4. PB states that Hall Estill was "`associated' by Mr. Wilcoxen under the Wilcoxen-Niebell Contract." PB's Proposed Findings of Uncontroverted Fact at 4. 4

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above. With respect to "attorney fees," the legislative history states the following: Section 7. Attorney fees This section authorizes the Secretary to pay the Nations' attorneys those sums owed them under their respective contracts, but imposes a cap of ten percent of the Nation's allocation of funds appropriated under section 5(c). See H.R. Rep. No. 107-632, 107th Cong. 2nd Sess. (2002) at 8. [Copy attached to PB's Cross-Motion for Summary Judgment]. The legislative history is wholly consistent with the Secretary's interpretation, since the Secretary's interpretation implicitly assumes the existence of a tribal attorney fee contract (or contracts) encompassing the legal services performed by those particular law firms which are claiming attorneys' fees under Section 1779e. Furthermore, although the legislative history of Section 1779e states that this Section "authorizes the Secretary to pay the Nations'" attorneys' fees, the legislative history does not suggest anywhere that the Secretary is to pay, irrespective of whether the particular Nation has approved the specific fee amount claimed by a particular law firm - - a requirement set out in the text of Section 1779e(a). Finally, the legislative history does not anywhere suggest that the Secretary must, as a court would do, adjudicate between the fee claims of various competing law firms.

II. PATTON BOGGS' ARGUMENT THAT THE PAYMENTS MADE BY THE SECRETARY TO LAW FIRMS OTHER THAN PATTON BOGGS, VIOLATED THE EXPRESS TERMS OF THE ACT PRESUMES THAT PATTON BOGGS CONSTRUCTION OF SECTION 1779e IS CORRECT. Patton Boggs makes much of the fact that the government's Motion to Dismiss states that the Secretary complied with the Cherokee Nation's instructions on the payment of attorneys' fees, treating this as an "admission" that the Secretary did not comply with "the express terms of the Settlement Act." PB's Opp. at 8. This argument begs the central question yet to be resolved

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by the Court - - namely, the proper interpretation of Section 1779e(a). Defendant stresses that the Secretary's reading of Section 1779e must be accorded great deference, since the Interior Department, which is charged with the implementation of federal Indian legislation, has over 150 years' worth of experience in interpreting Indian legislation. Interior's interpretation of a statute which it administers is entitled to Chevron deference. Amoco Production Co. v. Watson, 410 F. 3d 722, 726 (D.C. Cir. 2005). The Court need not conclude that the Secretary's interpretation is the only reasonable one. Udall v. Tallman, 380 U.S. 1, 16 (1965). The courts " . . . will sustain the Court's construction of [a statute] if it is reasonable, even though another construction appears equally plausible." [Citations omitted] See Blackfeet Indian Tribe v. Montana Power, 838 F. 2d 1055, 1057-1058 (9th Cir.), cert. denied, 488 U.S. 828 (1988).2/ The reasonableness of the Secretary's interpretation of Section 1779e(a) is evidenced by the fact it fully respects the CNO's sovereign prerogatives in resolving contractual disputes in tribal forums. In addition, the Secretary's construction does not place an adjudicatory role upon the Secretary who is in the Executive branch of the government. Such roles in the past have been judicial roles placed upon the Indian Claims Commission (by Section 15 of the Indian Claims Commission Act) and upon the U.S. Court of Claims (to which the remaining ICCA cases were transferred in anticipation of the Commission's termination in 1978). PB, without citing any support in the legislative history of Section 1779e, would effectively ascribe to Congress the intent that the Secretary resolve attorneys' fee disputes, which are private contractual disputes.

2/

This is not to suggest that the government believes the PB's interpretation is equally plausible. 6

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III. THE ATTORNEYS' FEE PROVISION OF THE SETTLEMENT ACT IS NOT MONEY-MANDATING WITH RESPECT TO PATTON BOGGS. Defendant reiterates that the attorneys' fee provision is not money-mandating with respect to Patton Boggs because prior to the CNO's approval of the payments of specific fee amounts to certain law firms/attorneys, none of the law firms/attorneys which had furnished services to the Cherokee Nation had a right under Section 1779e to any fees because the CNO had not approved the payment of any attorney fees. 3/ The CNO has not approved the fees which Patton Boggs now seeks to recover. Section 1779e imposes an obligation4/ on the government to pay only those attorneys' fees approved by the Cherokee Nation, and that obligation runs to the CNO only.

Dated this 24th day of April, 2006.

3/

The CNO approved the payment of $151,000 to Patton Boggs, but Patton Boggs seeks to recover an additional $1,393,542.80. See PB Memo in support of Cross-Motion for Summary Judgment.
4/

Again, the implicit underlying assumption is that the services in question must be encompassed by a tribal attorney fee contract (or contracts) which had been approved by the CNO. 7

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Respectfully submitted,

s/James M. Upton___ JAMES M. UPTON Trial Attorney U. S. Department of Justice Environment & Natural Resources Section Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel. (202) 305-0482 Fax: (202) 305-0506

OF COUNSEL: Steven Simpson, Associate Solicitor, Trust Responsibility Branch Division of Indian Affairs Office of the Solicitor U.S. Department of the Interior Main Bldg. - - 1849 C Street, N.W. Washington, D.C. 20420 Angela Kelsey, Esq. Karen Lindquist, Esq. Trust Responsibility Branch Division of Indian Affairs Office of the Solicitor

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ATTACHMENT

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