Free Memorandum - District Court of Federal Claims - federal

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IN THE I-INITEDSTATESCOURTOF FEDERALCLAIMS THE CHEROKEE NATION OF OKLAHOMA, Plaintiff, v. THE UNITED STATES AMERICA, OF Case 218-89 No.
Defendant. , ß *
,f.

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PATTONBOGGSLLP
Intervenor Plaintiff.

Chief JudgeEdward J. Damich

THE I.INITEDSTATESOF AMERICA, Defendant.

MEMORANDUM SUPPORTINGPATTON BOGGS' FOR SUMMARY JUDGMENTFOR $1,247,501.80 CROSS-MOTION

LLP PATTONBOGGS DavidP. Callet(DC BarNo. 181990) (DC BarNo. 470677) DavidS. Panzer TraurigLLP Greenberg 800Connecticut NW, Suite500 Ave, Washington, 20006 DC 202-331-3100 (fax) 202-331-3101 [email protected] [email protected] March20,2006

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TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES ........ i .................. iii

MEMORANDUM SUPPORTINGPATTON BOGGS' CROSS-MOTION FOR SUMMARYJUDGMENTFOR 51,247,50180 ............ .......................1 STATEMENTOF THE QUESTIONS PRESENTED............ STATEMENTOF THE CAS8............... UNDISPUTED FACTS............
Undisputed Facts As To The Payment Provision Undisputed Facts As To The Fee Cap 4RGUM8NT..........,. I.

.....................2 ....................2 .................9

l0
..............11

THE SETTLEMENT ACT MANDATES PAYMENT TO THE CHEROKEE NATION'S ATTORNEYS OF THOSE FEES PROVIDED FOR IN THEIR APPROVED ATTORNEY FEE CONTRACTS..................11 A. B. Under The Plain Language Of The SettlementActr "As Approved" Modifies The Word "Contracts," Not The Word ('Fees."....................11 The SettlementAct's Payment Provision Is Not Ambiguous BecauseIt Has Only One ReasonableReading And, Therefore, No Judicial Presumptions Can SaveThe Secretary's Interpretation AdvancedBy The GovernmentAnd The CherokeeNation.................13 Even If A Hypothecated Alternative Interpretation Makes The SettlementAct's Payment Provision Otherwise Ambiguous, The Unambiguous Legislative History ResolvesThat Potential Ambiguity ........14 When The Legislative History Is Clear, There Is No Presumption In Favor Of Indians ..........15

C.

D.

il.

PATTON BOGGS IS ENTITLED TO SUMMARY JUDGMENT ON THAT PORTION OF ITS TEN PERCENT CONTINGENCY FEE \ilITHIN THE FEE CAP. ...........16 A. Patton Boggs Is Entitled To Summary Judgment In An Amount Equal To The Current And Future Balance Of The Attorney Escrow Account... .............17

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B.

Also Is Entitled To SummaryJudgmentIn An PattonBoggs Amount Equal To The SumsImproperly Paid To The Hall Estill Law Firm. ...............18 PattonBoggs Also Is Entitled To SummaryJudgmentIn An Amount Equal To The SumsImproperly Paid To The Estate ................19 Of PaulNiebell. ......................20

C.

CONCLUSION

APPENDIX TO PATTON BOGGS' CROSS-MOTIONFOR SUMMARY 80 JUDGMENT FOR $1,247,50L (SEPARATEVOLUME) TABLE OF CONTENTS EXHIBIT A ........ i

CHEROKEE.CHOCTAW. AND CHICKASAW NATIONS CLAIMS SETTíEMENT ACT, A-1 ............... ET 2s u.s.c. $$ 1779, SEQ.... 25 U.S.C. 81........... $ H.R. Rep.No. 107-632 ............... Cong.(1936)....... S.J.Res.177,74th SEPTEMBER8, 1988WILCOXEN.NIEBELL ATTORNEY'SCONTRACT .......... A-19 A-22 ......... ...A-33 ............4.34

EXHIBTTB EXHIBIT C EXHIBIT D EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4

APRIL I7,I989 PATTON BOGGSATTORNEYS' A-39 .......... CONTRACT............ OCTOBER30, 1995LETTER FROM JOE BYRI) A-43 ........... TO KATE BOYCE OCTOBER6,2003MEMORANDUM FROM JULIAN FITE TO CHAD SMITH, JIM WILCOXEN, AND JOE REEDERREGARDING ATTORNEY FEESFOR . A.44 \ilORK ON ARKANSAS RIVERBED ISSUES LETTER FROM JAMES MARCH 3I.2OO5 WILCOXEN AND MARGARET S\ilIMMER TO CHAD SMITH AND COUNCIL OF THE CHEROKEE A-50 ......... NATION.. LETTER FROM JAMES CASON OCTOBER13.2005 ........4.53 TO CHAD SMITH.... A-56 DECLARATIONOF DAVID S.PANZER,ESQ................

EXHIBIT 5

EXHIBIT 6 EXHTBIT7

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TABLE OF AUTHORITIES
Federal Cases AD Global Fund v. United Støtes, 67 Fed. C1.657(2005) Def, Councíl,Inc., Chevron USA,Inc. v. Nsturul Res. 467 U.S.S37(1984)

14' ...11,12,,13' 15

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

Cherokee Nøtíon v. United States, g37F.2d 1539(10thCir.), reh'g denied,948F.2d 635 (10thCir. 1991) .........10, 19,22 Chickasaw Nøtìon v, United States,

S4 s34U.S. (2001).. JudicíalDßt, Courtforthe Tenth v. DeCoteau Dßtrict County (1975) 420U.S.42s
Demko v. United States, 44 Fed.Ct. 83 (1999) Elliot Coøl Miníng Co. v. Dir., OfJice of Workers' Comp. Progrøms, 17 F.3d 616 (3'd Cir.1994). Hopi Tribe v. United Støtes, 55 Fed. Cl. 81 (2002) N.L.R.B. v. Pueblo of Søn laan, 276F.3d1186(10th Cir.2002). Red Løke Band v. United States,

..............1s ..............1s
..........r2

...................12

...........19

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

(1989)....... r7 cr. ct.362

.....1s

Red Løke & Pembina Bands v. Turtle Mountøín Band of Chippewa Indians, ...........19,22 355 F.2d 936 (Ct. Cl. 1965).. Sßseton & llahpeton Bands or Tribes v. Uníted Støtes, 423F.2d 1386(Cr. Cl. 1970) South Carolina v. CøtawbøIndian Tríbe, Inc., 476 U.S.498(1986) Sioux Nation of Indians v. United Støtes,

l8 .............6,

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

(Ct. 6s0F.2d244 CL r98r)..

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

tll

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Nøtíon, United Statesv. Cherokee 480U.S.700(1987) v. UnítedStates Thompson, (10thCir. 1991). 94rF.2d1074 ldentffiable Groupv. UnitedStøtes, W.Shoshone 4r 6s2E.2d (Ct.Cr. 1981).. ll¡hite MountaìnApacheTribe of Arízona v. UnitedStøtes, (Fed.Cir. 1994) 30 Fed.Cl. I (1993), effd,3l F.3d1176 FederalStatutes

*.10,19,22

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

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

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

2su.s.c. 81........... $

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

Cherokee, Choctaw, and Chickasaw Nations Claims SettlementAct' .................passim 25 U.S.C.$$ 1779,et seq. Legislative Materials H.R. Rep.No. 107-632............... Cong. (1936)....... S.J.Res. 177,74th ..............14 ..........5

iv

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IN THE UNITED STATESCOURTOF FEDERALCLAIMS THE CHEROKEE NATION OF OKLAHOMA. Plaintifl
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THE UNITED STATES AMEzuCA, OF Defendant.
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Case 218-89 No.

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PATTONBOGGSLLP Plaintift Intervenor v. THE I-]NITEDSTATESOF AMERICA,
Defendant.
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Chief JudgeEdward J. Damich

* * + * * *

PATTONBOGGS' SUPPORTING MEMORANDUM FOR$1,247,501.80 JUDGMENT FoR SUMMARY cRoss-MorloN
IntervenorPlaintiff PattonBoggs LLP ("PattonBoggs") hasa $1,393,542.80 Tucker Act claim againstthe governmentbasedupon failure of the Secretaryof the Departmentof the Interior (the "Secretary") to comply with the money-mandating attorneysfees provision of the Cherokee,Choctaw, and ChickasawNations Claims Act, Pub. Law 107-331(the "SettlementAct"), codified as 25 U.S.C. ç 1779. Settlement The SettlementAct's attomey fee payment provision requires: "the Secretaryshall pay to the Indian Nation's attorneysthose feesprovídedfor in the índívidual tribøl attorney Indian Nations." 25 U.S.C. $ 1779e(a) fee contractsas approvedby the respective
I

Act is set SeeDocket No. 127,Complaintin Intervention("PB Compl."). The full text of the Settlement forth in the Appendix (the "Appendix") to Patton Boggs' Cross-Motion for Summary Judgment at A-l to A-18.

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(emphasisadded)(the "Payment Provision"). This Cross-Motion for SummaryJudgment of seeks$1,247,501.80 PattonBoggs' claim - that portion of its claim underthe Payment Provision that is unaffectedby the limitations on attorneysfeespaid under the Settlement (the "Fee Cap"). Act, as setforth in 25 U.S.C. $ 1779e(b) STATEMENT OF THE QUESTIONS PRESENTED Whether Patton Boggs is entitled to judgment, as a matter of law, in the

l

amount equal to balanceof the SettlementAct's Fee Cap because(a) Patton Boggs' statutoryright to the fee "provided for" in its attorney fee contract exceedsthat amount, (b) no other attorney seeksor could seekthat amount, and (3) that amount- by def,rnition - could not exceedthe Settlement Act's FeeCap. 2. Whether the balanceof funds available to pay Patton Boggs' statutoryfee

- without exceeding Settlement Act's Fee Cap - comprises: the (a) the current and future balancesof the attorney fee escrow accountset asideto pay the CherokeeNation's attorneys; (b) the amountsimproperly paid to Hall Estill which had no the attomey contract with the CherokeeNation because Fee Cap applies only to "the total fees payableto attorneysunder such contracts"; and (c) the amountsimproperly paid to the Estateof Paul Niebell, who was not entitled to any payment under his attomey fee contract with the his CherokeeNation because efforts resultedin no recovery for the CherokeeNation. STATEMENT OF THE CASE The Secretary Misinternreted The SettlementAct Despite the money-mandatinglanguageof the SettlementAct's Payment that the PaymentProvision determined Provision,on October 73,2005,the Secretary only "requires the Secretaryto executea purely ministerial act in carrying out the in instructionsof the CherokeeNation as expressed the post settlementresolutionsof the

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of Council."2 On October17 and 18,2005, in derogation her statutoryduties,the Secretarycarried out the CherokeeNation's instructionsas to whom to pay attorneysfees and in what amounts.3 This Court Allowed Patton Bosgs To Intervene PattonBoggsmoved to interveneon October19,2005. Following two hearings and heavy briefing, the Court issuedan Opinion and Order on December19, 2005, Docket No. 125 (the "Opinion"), grantingPattonBoggs' motion to interveneand based allowing PattonBoggsto file a complaintin interventionagainstthe government fee Act's money-mandating attorneys provision. In its Opinion,the on the Settlement Court determined: . "PB's claim for attorney'sfeesis basedon the enactment thfe Settlement of Act]." Opinionat 11. . "A plain readingof [the Settlement Act's PaymentProvision] unequivocally that the Secretarypay the attorneys that the statutemandates demonstrates their fees."Id. at 15. . "$2 million is availablefor the paymentof attorney'sfees."Id. at3. o "Whether the money [claimed by Patton Boggs] comesfrom the attorney fee money." 1d escrowaccountor the judgment fund, it is still U.S. government at 14 (footnoteomitted). Patton Boees Stated A Statutory Tucker Act Claim thataplain readingof the PattonBoggs' Complaint in Interventionasserts Nation's to Act's PaymentProvisionrequiresthe Secretary pay the Cherokee Settlement with their "approved" attorney fee contracts,subjectto the Fee attorneysin accordance Cap. PB Compl. The PaymentProvisiondoesnot provide for post-hocIndian Nation "approval." Id.
'Exhibit 6 at A-54. 3Attachment Docket A. of No. 138,Declaration Douglas Lords("LordsDecl.")at to 8-9. tf'ti

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In this case,the PaymentProvision requiresthe Secretaryto pay to Patton Boggs "those fees provided for in [Patton Boggs'] individual tribal attorney fee contract[] as Nation[]." 25 U.S.C. $ 1779e(a).PattonBoggs' contract approvedby the [Cherokee] with the CherokeeNation (the "Contract") "provided for" a ten percentcontingency fee.a to Nation's total recovery,including sumsallocated its counsel,will be The Cherokee the Subtracting moneythat makingPattonBoggs'total fee $1,948,501.80.s $19,485,018, Patton Boggs has already beenpaid by the CherokeeNation, and by the Secretary,Patton below: as Boggs' TuckerAct claim is $1,393,542.80, summarized Appropriations To Cherokee Nation and lts Act CounselUnder The Settlement Ten PercentAttomey Fee Claim PattonBoggs' Act ProvidedBy The Settlement Act AmountsPaid To LessPre-Settlement PattonBosss Subtotal - Patton Boggs' Total Settlement Act Attorney Fee Paymentto Patton Boggs By The Secretary From SettlementAct Appropriated Funds on October18"2005

s19,485,018.00
$1,948,501.80 ($403,959.00) $1,544,542.80 ( $151,000.00)

Total of PattonBosss'Tucker Act Claim

$1,393,542.80

At the sametime, the SettlementAct's Fee Cap limits "the total feespayableto attorneysunder such contractswith an Indian Nation [to] 10 percentof that Indian Act]." 25 U'S.C' Nation's allocationof funds appropriated the Settlement [by PattonBoggs' $ 1779e(b).6The questionremainsas to how, if at all, the FeeCap affects

a,See Exhibit2 at A-41. 5Docket will that 8-9. Thissumassumes Congress fully LordsDecl.at'lf!f Report; No. 137,JointSratus fund the FY 2007approPriations. 6 Contrary the Cherokee Transcript 13,2005Hearing DocketNo. 124,December Nation'sarguments, to Because Provision. the payable under Payment all not Boggs does seek fees Patton (,,Tr.")ui SA,Zt-eO,t4, Boggs 18,2005,Patton priorto October Nation, by paid$403,959 theCherokee had Boggs been Èatton Thus, had appropriated). now knownto havebeen (based thesums on of wasowedã1otal $1,j44,542.80 Nation'sother pattonBoggsbeenpaid in full, $403,959 for wouldhavebeenremaining the Cherokee of to this lncidentally, would havebeenenough coverthe amount contracts. wìth "approved" attorneys

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statutorydght to be paid its fees. Tr. at 54:2I-56:7. The CherokeeNation And The Government Fail To Consider This Court's Analysis To In Their Responses Patton Bosss' Tucker Act Complaint In response Patton Boggs' Complaint, the CherokeeNation filed a Motion to to previouslyrejectedby the all Dismisswhich rehashes of its jurisdictionalarguments Court when it grantedPattonBoggs' motion to intervene. DocketNo. 135. The the that PattonBoggs' "complaint mis-reads Nation incorrectlycontends Cherokee SettlementAct in ascribing to the Secretarythe authority to independentlyset the attorneysfees, insteadof implementing the decision of the Indian Nations as to which attorneysshould be paid and how much." Id. at 18. Thereafter,the governmentfiled a Motion to Dismiss Or, In The Alternative, For SummaryJudgment(Docket 138),rearguingthis Court'sjurisdiction to considerPatton Provision Boggs' claim. The governmentalso repeatsits interpretationof the Pa1'rnent that the phrase"as approvedby the Indian Nations" modifies the word "fees" - which it would render"superfluous"the PaymentProvision'sphrase"as provided then concedes for in the individual tribal attorney fee contracts." Id. at 10. Nation fails to recognize only the Cherokee concessions, Given the government's the fatal flaw in its interpretation,which seeksto arrogateto itself carte blancheto direct a Unites StatesCabinet-level official to executean unequivocal statutoryduty however the CherokeeNation deemsfit. The Court has ruled that the SettlementAct "mandates that the Secretarypay the attorneystheir fees." Opinion at 15. "lJnder cardinal principles of statutory interpretation,the court must interpret the statuteso that no clause,sentence void, or insignificant." Opinion at 14 (citation and intemal or word shall be superfluous,
money that the CherokeeNation approved for Mr. Wilcoxen under his contract before the CherokeeNation gratuitouslydecidedthat Mr. Wilcoxen shouldreceiveda $150,000"bonus." SeeEx.4 at A-49.

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quotation marks omitted). For that reason,the Court found it "hard ... to reconcile the Nation and the U.S.'s position with the þresenceof the] word Cherokee 'contract' fin the

Act's PaymentProvision.]" Tr. at 54:22-24.The Court explainedthat the Settlement Nation's position logically leadsto "the Indian Nations government's and the Cherokee hav[ing] absolutecarteblanche with regard to who they pay and what they pay" which is 'oodd"given Congress'suse of the phrase"in the individual tribal attorney fee contracts." Id. at 55:l-6. The Court thus recognizedthat "the final interpretationof the meaning [of the PaymentProvision]hasto take into accountthe useof the word 'contracts,'as well as

'as Indian Nations."' Id. at 55:7-ll. the phrase, approvedby the respective Concurrentwith the filing of this Motion, Patton Boggs has filed oppositionsto the dispositive motions filed by the CherokeeNation and the government.

Analysis.Involve Anv Approval Bv The Cherokee Nation Any interpretationof the PaymentProvision that accountsfor the word "contracts" in the SettlementAct must preservePattonBoggs' ten percentcontingency fee, absenta conflict with anotherattorney fee claim recognizedunder the Settlement Act. As the Court observed,a "possibility [that empowersthe CherokeeNation to approve fees] is to say that the contractsare binding, so that anybody, who has a binding of contract with the tribes must be paid, but the amount,because the fact that there is a Indian Nations." Tr. at 55:19-23. In otherwords, cap here,is approvedby the respective the Secretarymust pay the attorneystheir fees under the SettlementAct's Payment would Nation hasa limited role if payments Provision(Opinion at 15),but the Cherokee conflict with the SettlementAct's Fee Cap. Therefore,while the Court has yet to finally interpret the PaymentProvision and decidewhether it is "fees" that must be approved,or

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if it is "contracts,"in eitherevent,PattonBoggs is entitledto be paid its "below the Fee Cap" fees. Here, Patton Boggs seeksa "naked money judgment" only as to those additional amountswithin the SettlementAct's statutory Fee Cap, amountsthat do not involve competing claims ÍImong the CherokeeNations' attorneys,as set forth below:

Balance Of The Attornev Fee Escrow Fund Future ExpectedAllocation To The Attorney FeeEscrow Fund

s366.977.23
$500,000.00 $280,524.57

PaidOut Of TheAttomey MoniesImproperly FeeEscrowFundTo The Hall Estill Law Firm - Which HadNo Contract V/ith The Cherokee Nation
Monies Improperly Paid Out Of The Attorney Fee Escrow Fund To The EstateOf Paul Niebell - A Fee"Wholly Contingent"On A RecoveryHe Did Not Achieve Total: Patton Boggs' Summary Judgment Claim

$100.000.00

$1,247,501.80

None of this $I,247,501.80that PattonBoggsnow seeksin this summafy judgment motion entails the needfor any potential "approval" by the CherokeeNation, Act allowedor requiredsuch"approval." PattonBoggs seeksonly evenif the Settlement those amountsunder the Fee Cap. Absent application of the Fee Cap, there was nothing for the CherokeeNation to approveor disapproveas to Patton Boggs' unambiguousten percentcontingency fee contract. Therefore, even if the Court rejectsPatton Boggs' interpretationof the PaymentProvision, any interpretationtakes into accountthat the PaymentProvision usesboth the word "contracts," as well as the phrase"as approvedby the respectiveIndian Nations," leadsto summaly judgment for Patton Boggs of 5I,247,501.80- the amount equal to the balanceof the fees permitted under the Act. Settlement

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UNDISPUTED FACTS The following facts are not in dispute:7 Undisputed Facts As To The Payment Provision that the Secretarypay the attomeystheir First, "the [SettlementAct] mandates of for" "compensation fees." Opinion at 15. PattonBoggs' approvedContract'oprovided lessthe amountspreviouslypaid by said ten percent(10%) of the amountrecovered pursuantto the Nation...." Ex. 2 at Ã-41. Of thosefunds appropriated Cherokee are Settlement Act,50%o allocatedto the CherokeeNation, a portion of which was set fully funds the last $10 asidefor its counsel. Assumingthe FY 2007 appropriations million traunch of authorizedfunds, the CherokeeNation and its attorneyswill recover a "shall pay" to PattonBoggsis The amountthat the Secretary total of $19,485,018.8 "provided for" in Patton Boggs' ten percentcontingencyfee Contract. Therefore,Patton (of previously received which only less Boggsis entitledto $1,948,501.80, the $554,959 underthe SettlementAct), i.e., $151,000was paid with funds appropriated $1 , 3 9 3 , 5 4 2 . 8 0 . UndisputedFactsAs To The Fee Cap Under the Fee Cap, however, the SettlementAct limits payment to the Cherokee Nation's attorneysfrom funds appropriatedpursuantto the SettlementAct to ten percent Nation recovery- again,$1,948,501.80. of the Cherokee From appropriatedfunds, the Secretary disbursedpaymentsas follows: . $ 151,000 PattonBoggs; to

7

Facts,filed Findingsof Uncontrovefted SeeTr. at 80:1l-12; see alsoPaltonBoggs' Proposed concurrentlyherewith. * underthe Nation will receivea total of $20 million in appropriations Opinion at 3 ("Since the Cherokee Act, S2 million is availablefor paymentof attorney'sfees.");Docket No. 137,Joint Status Settlement Report.

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. $550,000 Mr. Wilcoxen'slaw firm; to o 5280.524.57to the Hall Estill law firm: and . $100,000to the Estateof Mr. Niebell. only PattonBoggsseeksadditionalpayments.e 8-9. Lords Decl. at 111Ì Of theseattorneys, Hall Estill was paid 5280,524.57,eventhough it had no attorney fee contract with the eventhough none of his efforts Nation. Mr. Niebell was paid $100,000.00, Cherokee Nation.l0 resultedin any recoveryfor the Cherokee Nation's attomeysa total of has To date,the Secretary paid the Cherokee funds,rl allowing for further payments Act appropriated from Settlement $1,081,524.57 .23 from appropriatedfunds of øt least 5866,977 without running afoul of the Fee Cap, or even questioningwhether the attorney fee paymentsmadeby the Secretarywere appropriate!12

t

Ex. 5 at A-51 (March 31,2005letter from Mr. Wilcoxen, and MargaretA. Swimmer of the Hall Estill firm, to the CherokeeNation, stating "having acceptedthe Nation's fee determination, we have no dispute with the Nation...."). ro Mr. Niebell's contract provided that he be paid nothing for his unsuccessfullitigation. Ex. I at A-35. Mr. Niebell (along with Mr. Wilcoxen) pursuedtwo claims on behalf of the CherokeeNation, both of which were finally dismissedlong before the SettlementAct and, therefore,were not resolved by the Nation,480 U.S. 700 (1987) (disposingof "takings" claim); SettlementAct. See UnitedStatesv. Cherokee of F.2d 1539(lOthCir.) (disposing "fair and honorabledealings" Nationv. United States,937 Cherokee F.2d635 (l0th Cir. l99l). Mr. Niebelldied in 1994(Ex.4 at A-46), before claims),reh'g denied,948 Patton Boggs was terminated. Ex. 3 at A-43. He never worked on this case. SeeEx. 4 at A-46 (describing who enteredinto the 1980fee Mr. Niebell's work as "Mr. Niebell was one of the original six attorneys settlement."). rr Lords Decl. at flT 8-9. tt Th. payment to Hall Estill was improper becauseithad no contract with the CherokeeNation. The payment to the Estateof Paul Niebell was improper becauseMr. Niebell's contract provided that he would be paid only if the litigation he pursuedwas successful(Ex. I at A-35), but it was not. Seesupra, note 13. Mr. Niebell's contract was "wholly contingenf' on his obtaining a recovery for the CherokeeNation, but, becausethe caseshe pursued led to zero recovery for the CherokeeNation, his approved contract "provided and (limited) participation lr for" him to receive zero attorneysfees. But for Mr. Wilcoxen's appearance this case brought by Patton Boggs, Mr. Wilcoxen would not be entitled to any fees either.

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ARGUMENT L THE SETTLEMENT ACT MANDATES PAYMENT TO THE CHEROKEE NATION'S ATTORIIEYS OF THOSE FEESPROVIDEDFOR IN THEIR APPROVEDATTORNEY FEE CONTRACTS. usedby this of morefully below,the myriadcanons construction As explained

"as Act: thephrase reading the Settlement of common-sense confirma simple, Court,13 not IndianNations"modifiesthe word "contracts," the word by approved the respective
"fges,t'

A.

Under The Plain Language Of The SettlementAct,'rAs Approved" Modifies The Word "Contracts," Not The Word "Fees."

Statutory interpretationbegins with plain meaning.la If every word in the Nation cannot Act is to be given meaning,"as approvedby the" Cherokee Settlement that would negateand make insignificant the phrase"provided for refer to "fees" because in the individual tribal attomeyfee contracts."l5 Grammatically, if Congressintendedthe phrase"as approved" to refer to the remote word "fees," insteadof the immediately precedingword "contracts," then the clause"provided for in the individual tribal attorney fee contracts" should have been set off by commasboth before the word o'provided"and after the word "contracts."l6

See,e.g.,AD Global Fundv. UnitedStates,67 Fed. Cl.657 (2005)' ta Seeid.,67 Fed. Cl. ar 671. ts See id. at 672 (interpretationsshould ensurethat "provisions do not negateeachother and words or other or are elements not excessive insigniftcant."). t6 at 44 SeeDemko v. United States, Fed.Cl. 83, 87 (1999) (discussing length"the doctrineof the last antecedent")."Under that principle, qualifuing words, phrases,and clausesare to be applied to the words or phrase immediately preceding, and are not to be construedas extending to and including others more iemote." Etliot Coat Mining-óo. v. Dir., Office of llorkers' Comp.Prãgrøms,l7 F.3d 616,62913'dCir' 1994) (citations and internal quotation marks omitted).

t3

t0

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Indian Nations" was by the Structurally,lT phrase"as approved the respective placedwithin the statutoryprovision that (a) grantsto the Indian Nations' attorneysrights that the Secretarypay the Indian Nations' attorneyssuch to fees,as well as (b) mandates the thosecontracts fees. SeeOpinion at 15. Therefore,"as approved"describes the Secretarymust pay because Secretarymust know what and to whom she "shall pay." In addition, the SettlementAct limits the total amountthat the Secretaryshall pay "to (emphasis added)(discussed under such contracts." 25 U.S.C. $ 1779e(b) attorneys fuither infra). Nation with complete intendedto vestthe Cherokee Logically, if Congress discretion over the payment of its attorneys' fees,there was no reasonfor Congressto mandatethat the Secretary pay the Indian Nations' attorneyswith U.S. government directly to the Indian would simply have given all funds appropriated *oney.t8 Congress Act's plain meaningneitherrequiresnor even allows any Nations. The Settlement Nation. feesby the Cherokee of additionalapprovalor disapproval attorneys

t7SeeAD Gtobat Fund,67 Fed. Cl. at 671-72 (interpretations shouldbe basedupon a readingof the statute legal contexf'). whole, and placedwithin its "contemporary as a r8 judgment SeeOpinion at 14 ("Whether the money comes from the attorney fee escrow account or the governmentmoney. By mandating that the Secretarypay attorneysgovernmentfunds, fund, it iì still U.S. Congressprovided ihe attorneyswith a causeof action if the Secretaryfailed to do so.") (footnote omitted). 1'he funds paid to the attorneysfrom the attorney escrow funds establishedin March 2005' Docket 137, Joint Statui Report. See qlso25 U.S.C. $ 1779c(d)("After payment pursuantto sect¡on 1779e of thistiÍle, the remaining funds aulhorizedfor appropriation under subsection(c) of this section shall be allocated added). amongthe Indian Nations....") (emphasis

11

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B.

The SettlementAct's Payment Provision Is Not Ambiguous BecauseIt Has Only One ReasonableReading And, Therefore, No Judicial Presumptions Can SaveThe Secretary'sInterpretation Advanced By The Government And The Cherokee Nation.

The Secretary'suntenableinterpretationof the SettlementAct, advancedby the governmentand the CherokeesNation, but which the governmentnow admits multiple canonsof statutory construction,still doesnot createan contravenes alternativereadings. AD Global "ambiguity," which requirestwo or more reasonable, Fund,67 Fed.Cl. at 672 (" Ambiguity in a statute.. . normally meanstwo or more alternativereadings,all having some claim to respectand none leading to absurd results.") (citation and internal quotation marks omitted). Consequently,there are no presumptionsin favor of theseuntenableinterpretationsadvancedby the governmentor the CherokeeNation. First, the Court need only defer to the Secretary'sinterpretationof the Settlement Act "if the statuteis silent or ambiguouswith respectto the specific issue[.] [T]he questionfor the court is whetherthe agency'sansweris basedon a permissible Def, Council,Lnc.,467 of construction the statute." ChevronUSA,Inc. v. Natural Res. a has the U.S. 837, S43(1984) (footnoteomitted). In this case, Secretary not advanced of Act, and wholly ignoresthe significance the of permissibleconstruction the Settlement attorneys' contracts. Second,the SupremeCourt is very clear about the reasonableouter bounds of any presumption in favor of Indians: "[t]he canonof constructionregarding the resolution of ambiguities in favor of Indians, however, doesnot permit reliance on ambiguitiesthat do South intent of Congress." of not exist; nor doesit permit disregard the clearly expressed Indian Tribe, únc.,476U.S. 498, 506 (1986) (footnoteomitted). Carolina v. Catø'wba

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C.

Even If A HypothesizedAlternative Interpretation Makes The settlement Act's Payment Provision otherwise Ambiguous, The Unambiguous Legislative History ResolvesThat Potential Ambiguity.

Notwithstanding the untenableinterpretationsadvancedby the governmentand the CherokeeNation, the Court hypothesizedits own alternativeinterpretation: I'm sort of moving in the direction of that middle way, that they have to pay any attorney for whom they have a valid ofthe cap,the Indianscan contact[sic], but because the determine,as long as its reasonable, amount of money peopleshouldbe Paid' that the . Tr. at 56:2-7 "However, if a statutehas two or more plausible alternativereadingsand the thus is deemedambiguous, next stepis for the court to look to the legislativehistory." SeeAD GtobatFund,67 Fed. Cl. at 672 (citationsomitted). Committeereportsare the to of most persuasive all forms of legislativehistory and deemed be "highly persuasive" with this Court. Id. at 677 (citation omitted). explainshow Committeeon Resources In this case,the Houseof Representatives' to pay the Nations' the $ I779e is to operate: "This sectionauthorizes Secretary attorneysthose sums owed them under their respectivecontracts,but imposesa cap of ten under [$ 1779c(c)]." H'R' Rne' percentof the Nation's allocationof funds appropriated Section 1779eof the Statute).The legislativehistory No. 107-632at A-29(discussing "approval" of attorneysfeesby the Indian Nations; statesnothing as to any subsequent the instead,it expresses plain meaningof the statutoryprovision:the Indian Nations' with the terms of their contracts. This legislative attorneysare to be paid in accordance any needto look to anyjudicial and therebyprecludes history is unequivocal, presumption.SeeAD Global Fund,67 Fed' Cl' at 672.

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D.

When The Legislative History Is Clear, There Is No Presumption In Favor Of Indians.

The SettlementAct's clear legislative history fuither rejectsany presumptionin interpretation. See favor of the CherokeeNation, even if it had proffered a reasonable ChicknsawNation v. UnitedStates,534U.S. 84, 85 (2001) (relying on legislativehistory to determineCongress'sintent and ruling that the presumptiondoesnot apply if it "would produce an interpretationthat we concludewould conflict with the intent embodiedin the wrote"). As this Court hasmadeclear,"legislativehistory shouldbe statuteCongress is examinedbeforea presumption applied." SeeAD Global Fund,67 Fed. Cl. at 672 (citationomitted);seealso RedLakeBand v. U.S.,17 Cl. Ct.362,381 (1989)("This rule [construing statutesto benefit Indians] doesnot permit a constructionthat contradicts expressstatutory languageor legislative history, however.") (citing DeCoteauv. District .S , County Court for the TenthJudicial Dist. 420 TJ . 425, 445 (1975)). Other federal courts also look to legislative history beþre they apply any judicial presumptionin favor intent may be found in legislativehistory.See clear congressional of Indiansbecause Cir.2002);Unitedstatesv. 1186,1194(1Oth v. N.L.R.B. puebloof SanJuon,276F.3d (1 Cir. 199I ) (compiling cases). 4, Thompson,g4l F .2d 107 1,077-78 Oth Thus, the plain meaning of the SettlementAct, applicablerules of statutory construction,and the SettlementAct's unambiguouslegislative history, all required the Secretaryto pay "those [attorneys]feesprovided for" in the "approved" "attorney fee the Nation could not overcome and the Cherokee contracts."leAs the government

Even assumingthe SettlementAct could be interpretedto permit the CherokeeNation to approve fees (which it cannot), the SettlementAct cannot be read to give the CherokeeNation any "approval" of fees below the Fee Cap becausethe SettlementAct doesnot give the CherokeeNation carte blanche with regard to whom the Secretarypays and what the Secretarypays. Tr. at 54-55. Such carte blanche"approval" has resulted in the CherokeeNation instructing the Secretaryto pay a law firm which had no attorney fee

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Act's legislativehistory,they have avoidedit at all controllingpotencyof the Settlement costs.

il.

PATTON BOGGS IS ENTITLED TO SUMMARY JUDGMENT ON THAT PORTION OF ITS TEN PERCENT CONTINGENCY FEE WITHIN THE FEE CAP. Patton Boggs is entitled to be paid a ten percentcontingency fee, absentany

statutory limitation on that fee. Seesupra. Patton Boggs' approvedContract "provided lessthe amounts of for" "compensation ten percent(10%) of the amountrecovered Nation...." Ex. 2 at A-4L previouslypaid by said Cherokee '0 PattonBoggs' Because

$ 1.4 million Tucker Act claim exceedsthe Fee Cap, and no other attorneysclaim any additional fees,Patton Boggs is entitled to summaryjudgment in an amount equal to the balanceof the Fee Cap, comprised of (a) the current and future balanceof the attorney escrow account,(b) the amount improperly paid to the Hall Estill law firm, and (c) the amount improperly paid to the Estateof Paul Niebell.

contract, to pay the estateofan attorney who earnedno fee, and then to pay the balanceofappropriated attorneysfees to the CherokeeNation itself. 2oThe CherokeeNation has previously chastisedPatton Boggs for failing to addressthat its Contract includes languagesubjecting Patton Boggs' ten percentcontingency fee to "any approval from the is Nation tribal [council] requiredby law." Tr. at 58:21-24. While this language in PattonBoggs' Cherokee Contract, the CherokeeNation's argumentbegs the question,"were any approvalsrequired by law?" That, of course,is the ultimate question for the Court: whether the "approval" provided by the SettlementAct is approvaloffees that would otherwisebe the prior approvalofan attorneyfee contractor a subsequent subject to the fee cap. The Court noted, however, that any such "approval" by the CherokeeNation would 1d. ofreasonableness. at 60:15-61:14. haveto be subjectto an objectiveassessment the is l4tithrespectto Patton Boggs' Contract, however, that reasonableness not at issue here because CherokeeNation's right of approval, assumingit had one, never arose. Given the unambiguouslanguage to of Patton Boggs' Contract, it simply is not objectively reasonable suggestthat Patton Boggs' Contract provides for something other than a ten percent contingency. Becausethis Motion applies only to fees under the Fee Cap, there are no required approvalsto considerunder any reasonableinterpretationof the Act. Settlement

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A.

Patton BoggsIs Entitled To Summary Judgment In An Amount Equal To The Current And Future BalanceOf The Attorney Escrow Account.

The SettlementAct limits the amountspayablefrom appropriatedfunds to lÙYo of the total amountsappropriatedfor the CherokeeNation and its lawyers with approved contracts.2l Here, "[t]he total amount determinedby the [CherokeeNation] resolutions .. . did not exhaustthe $2 million available for the payment of attorney's fees under the Settlement Ãct."22 Rather,the CherokeeNation resolutions(and the amountsactually leaving 5866977.23within the totaled$1,081,524.57, paid out by the Secretary) statutory Fee Cap to satisfu Patton Boggs' claim.23 this remaining balance,the BecausePatton Boggs' ten percentfee exceeds even to was mandated pay PattonBoggsat least an additional$866,977.23,2a Secretary assumingthat Patton Boggs' fee is limited by the amountsthat the Secretarypaid to the CherokeeNation's other counselwith individual tribal attorney fee contracts. Thus, Patton Boggs seekssummaryjudgment in an amount equal to the unpaid balancein the allocationfrom FY 2007 plus the expected attorneyescrowaccount(5366,977.23), 7 ($5 totaling 5866,97 .23. appropriations 00,000.00), B. Patton BoggsAlso Is Entitled To Summary Judgment In An Amount Equal To The Sums Improperly Paid To The Hall Estill Law Firm.

The SettlementAct limits paymentto those attorneyswith "individual tribal 25 attorneyfee contracts." U.S.C. $ 1779e(a).The limitation on the amountof feesthat
2125 U.S.C. g 1779e(a) shall pay...") (".. fromfunds uuthorizedto be approprÍated... the Secretary (emphasisadded);Id.Ë 1779eþ) ("Notwithstanding subsection(a) of this section,the total fees payable to with an Indian Nation shall not exceedl0 percentof that Indian Nation's attomeysunder suchcontracts allocation offunds appropriated under section 1779c(c)of this title.") (emphasisadded). tt Opinion at3; see ø/soDocket No. 137,Joint StatusReport (indicatingthat the Fee Cap will be $1,948,501.80).

any interest in this money)' " Seesrpro, note l2 (all other attorneyshave disclaimed 'o This sum is subject to Congressfully funding the SettlementAct appropriations.

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the Secretary"shall pay" appliesto "the total fees payableto attorneysunder such contracts."Id. $ 1779e(b). The Hall Estill law firm had no such individual tríbal attorney fee contract with the CherokeeNation. The CherokeeNation has recognizedthat fact, in writing.2s Despite the fact that the Hall Estill law firm was "associated"pursuantto the Wilcoxen-NiebellContract,underwhich Messrs.Wilcoxen and Niebell were solely paid $280,524.57 Hall Estill out of to the to responsible pay Hall Estill's fees,26 Secretary the attorney escrow account.2T improperpaymentto Hall Estill - which had no the For thesereasons, Secretary's "individual tribal attorney fee contract" - did not affect "the total feespayableto (emphasis added). Hall-Estill, under such contracts." 25 U.S.C. $ 1779e(b) attorneys having no individual tribal attorney fee contract,had no statutoryright to attorneysfees.28 More basic, the Secretarylacked the discretion to pay anything to Hall-Estill.2e Hence, the $280,525that the Secretaryimproperly paid to the Hall Estill law firm as a matter of law cannot apply againstthe statutoryFee Cap, and, therefore,cannotproperly apply againstamountsavailable to honor Patton Boggs' statutoryright.30 Thus, Patton Boggs

25Exhibit 4 at Ã-47. 2uExhibit I at A-35. 27 Docket No. 137, Joint StatusReport at 3; Lords Decl. at fl 8. The Secretarymade the decision to pay Hall Estill knowing that: (a) the CherokeeNation acknowledged,in writing, that Hall Estill had no contract, but was "associated" by Mr. Wilcoxen; and (b) the individual tribal attorney fee contract with Mr' for Wilcoxen expresslyprovidedthat Messrs.Wilcoxen and Niebell were be responsible any paymentto ,,associate"law firms. Exhibit 6 at Ã-54 (citing Exhibit 4 at A-47); Exhibit 6 at A'54 (citing Exhibit 1 at A-35). 2s for as 423 Sisseton, F .2d at 139I ("[O]nly suchattorneys have actuallyappeared claimantscan be otherwise and counseland assignees, persons as recognized entitledto allowanceoffees. Associate empioyed, must look for their pay to those with whom they have contracts.") (citation and internal quotation marks omitted). 2e 55 SeeHopi Tribe v. United States, Fed. Cl. 8 l, 87 (2002) (where paymentsare mandated,the Secretary'sdiscretion is limited to determining what fees are to properly chargeableunder the contract)' 'o It does not withstand scrutiny that the Secretarywould pay such unauthorizedsums to a third-party, Office of Special MargaretA. Swimmer, is marriedto RossSwimmer, SpecialTrustee, whoseshareholder,

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also seekssummaryjudgment in the amountimproperlypaid to Hall Estill -5280,524.57 - again,an amount that cannot properly count againstthe Fee Cap. C. Patton Boggs Also Is Entitled To Summary Judgment In An Amount Equal To The Sums Improperty Paid To The Estate Of Paul Niebell.

Mr. Niebell was employed under an "individual tribal attorney fee contractl]," (25 who could be paid fees. In including him within the classof persons U.S.C. $ 1779e(a)), his case,however, his contract "provided for" fees that were "wholly contingentupon a Nation." Ex. I at A-35. In calculatingMr. Niebell's fee,the recoveryfor [the] Cherokee only relevant considerationis the recovery achievedby the CherokeeNation in the "performance of services[is] a sine qua matterson which Mr. Niebell worked because non for compensation." Red Lake & Pembina Bands v' Turtle Mountain Band of Indians,355F.2d 936,938(Ct. Cl. 1965). But Mr. Niebell did not perform Chippewa any servicesthat resulted in a recovery for the CherokeeNation. The actionsbrought by resultingin no recovety. SeeUnited Messrs.Wilcoxen and Niebell were dismissed, Statesv. CherokeeNation, supra, (disposingof "takings" claim); CherokeeNation v' United States,s?tpre,(disposingof "fair and honorabledealings" claims). Thereafter, on Mr. Niebell died in 1994,without ever havingperformedany services this matter the Act. Nation's recoveryunderthe Settlement only casethat led to the Cherokee paymentto the improper$100,000.00 the For all of thosereasons, Secretary's Estateof Paul Niebell - who was not entitled to any attorneysfees appropriatedpursuant to the SettlementAct - did not affect "the totalfees pøyable to attorneysunder such that the (emphasis added). Hence,the $100,000.00 contracts." 25 U.S.C. $ 1779e(b)
Trustee for American Indians, at the Department of the Interior a former CherokeeNation Principal Chief years,and the person who founded the Indian Affair practice at the Hall Estill law firm. See for ten l;mode: http://www.hallestill.óom/biographies_search-results.php?action:attomey-search;practice-area:l pa (last visited Monday, March 20,2006).

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Secretaryimproperly paid to the Estateof Paul Niebell is not a limit on the amounts judgment in the availableto PattonBoggs. Thus, PattonBoggs also seekssummary that amountimproperlypaid to the Estateof PaulNiebell - $100,000.00 because amount cannot count againstthe Fee Cup." CONCLUSION The Secretary,subjectonly to the limitations in the Fee Cap, was required to pay the CherokeeNation's attorneysthose fees provided by their respectivecontracts. The Court has consideredan interpretationof the SettlementAct that recognizesPatton Boggs' Contract (which definesthe amount of feespayableunder the SettlementAct's PaymentProvision) and, to the extent that the Fee Cap would be exceeded,gives reasonableapproval of fees to the CherokeeNation. Even under this interpretation, however, absentcompeting claims (as defined by the respectiveattorneysfee contracts) that in total exceedthe $2 million appropriatedfor the CherokeeNation's attorneys,the

Nationhasnothingfurtherto approve. Cherokee (including account $500,000 escrow of the In thiscase, balance theattorney No is into to expect beallocated thataccount) $866,977.23. attorneys whichtheparties

3r

It is irrelevant to Patton Boggs which government funds are usedto pay Patton Boggs' claim' The government, however, has an interest in not having to pay a judgment to Patton Boggs from the Judgment Fund in addition to paying to the CherokeeNation those sums appropriatedunder the SettlementAct. There is no reasonwhy the governmentshould not be able to use the current and future balanceof the that the attorneyescrowaccountto pay down this claim. Moreover,having improperlydemanded governmentpay the Hall Estill frrm and the Estateof Paul Niebell, invoking the specfreof its sovereignty, ãnd having tiyeatenedto suethe government,the CherokeeNation would be estoppedfrom contestingthe government's replenishmentof the attorney fee escrow account from the funds in the CherokeeNation as triUul t ,5t fund òr from FY 2007 appropriations.If this Court concludes, PattonBoggs urges,that Hall Estill and the Estateof Paul Niebell could not properly be paid from the attorney escrow account,the government should be free to reallocatethe funds - at the very least out of FY 2007 appropriations(which ða*ot be characterizedas CherokeeNation funds, even under the CherokeeNation's analysis). That sort of monitoring of the proper payment of fees falls squarely within the ambit of the Court's power over the Consent Decree. As the CherokeeNation opted to afford these other attorneyssome fee payments, equivalent deductionsfrom amounts allocated to the CherokeeNation tribal trust fund will not interfere with that intent.

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other than Patton Boggs claim this money, which is lessthan Patton Boggs' statutory entitlement. And no attorneysother than Patton Boggs have a contractrecognizedby the SettlementAct that brings them within the classof personsentitled to any of that money. Therefore,no genuinedispute exists as to any material fact. As a matter of law, Patton of .23 Boggsis entitledto at leastthat $866,977 balartce the attorneyescrowaccount. In addition, and again as a matter of law, where the Secretarypaid $280,524.57to Hall Estill (which had no contract),that payment was not part of the limitation on "total fees payable to attorneysunder such contractswith an Indian Nation" set forth in 25 exist as to any materialfact, and Patton U.S.C. $ 1779e(b).Hence,no genuinedisputes Boggs is entitledto an additional5280,524.57. paymentto the $100,000.00 Finally, and also as a matterof law, the Secretary's Estateof Paul Niebell (who was entitled to zero attorneysfees) was also not part of the limitation on "total fees payableto attorneysunder such contractswith an Indian Nation," either. Thus, again, no genuinedispute exists as to any material fact, and Patton Boggs is entitledto an additional 5100,000.00. WHEREFORE, Patton Boggs seekssummaryjudgment againstthe United States in an amount equal to the remaining balanceof the attomey escrow account,the amount improperly disbursedto Hall Estill, and the amount improperly disbursedto the Estateof as 80, Mr. Niebell for a total of 51,247,50L summarized follows:32
32 judgment (S1,247,501.80) from its total Tucker Act claim PattonBoggs' claim for summary Subtracting yields $l¿O,O¿l.OO that part of PattonBoggs' total claim on which it has not moved for ($1,393,542.ã0) balanceof PattonBoggs'claim will requirean applicationof the Fee iummary judgment. The $146,040.20 that he had a right to Cap to tirð competingfee claimsbetweenPattonBoggs and Mr. Wilcoxen, assuming feesat all. of As with Mr. Niebell, "performance services[is] a sine qua non for compensation."Red Lake & pembina Bands,355 F.2d aT.938. Thus, Mr. Wilcoxen shouldnot havebeenpaid anythingfor his unsuccessfulwork on dismissedmattersresulting in no recovery for the CherokeeNation. Under the of as was entitledonly to "such compensation the Commissioner Wilcoxen-NiebellContract,Mr. Vy'ilcoxen

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Balance Of The Attorney Fee Escrow Fund Future ExpectedAllocation To The Attorney Fee Escrow Fund Monies Improperly Paid Out Of The Attorney FeeEscrow Fund To The Hall Estill Law Firm - Which Had No Contract With The Cherokee Nation Monies Improperly Paid Out Of The Attomey Fee Escrow Fund To The EstateOf Paul Niebell - A Fee"Wholly Contingent"On A RecovervHe Did Not Achieve

s366,977.23
$500,000.00

s280,524.57

$100,000.00

For Summary Total: PattonBoggs'Claim Judement submitted, Respectfully

$1,247,501.80

David P. David S.

N o . 1 8 1 990) N o .4 7 0 677)
G LLP

GREEN

500 W, Suite DC Washington, 20006 202-331-3100 (fax) 202-331-3101 calletd@,gtlaw.com [email protected] March20,2006

Indian Affairs may f,rndequitably to be due as may be determinedby a court or tribunal, for services theretoforerenderedunder this Contract, but in no event shall the aggregatefee exceedten percent (10%) of any and all sumsrecoveredor procuredthroughthe effots of the said attorneys."Ex. I at A-35. The resultingin no recovery. See United actionsbroughtby Messrs.Wilcoxen & Niebell were dismissed, v. CherokeeNation, supra, (disposing of "takings" claim); CherokeeNationv. United States,supra' States in While, unlike Mr. Niebell, Mr. Wilcoxen did do work in this case,sincehis entry of appearance 1999, his role was of so little import that the Court could not recall having ever met him in person. Tr. at 4:8-14. The CherokeeNation could not have reasonablyconcludedotherwise. Moreover, a significant portion of fees paid to Mr. Wilcoxen were for his efforts on the dismissedclaims. Ex.4 at ^-48, A-46 (noting, inter that Mr. Wilcoxen had a alia,tha1Mr. Wilcoxen billed 5262,500for work from 1985-87). Even assuming to fees, at a hearing on the merits Patton Boggs will demonstratethat the Wilcoxenstatutory entitlement Niebell Conffact was made expressly"subject-to" Patton Boggs' Contract, and, therefore, no fees could have been paid to Mr. Wilcoxen until Patton Boggs' attorney fee claim was paid-in-full. Ex. I at A'34.

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