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

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IN THE UNITED STATES COURTOF FEDERALCLAIMS THE CHEROKEE NATION OF OKLAHOMA, Plaintift
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THE LINITEDSTATESOF AMERICA Defendant.
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Case 218-89 No.

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PATTONBOGGS LLP
IntervenorPlaintiff, v. THE LINITED STATES OF AMERICA, Defendant.
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Chief JudgeEdward J. Damich

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PATTON BOGGS' MEMORANDUM OPPOSING THE GOVERNMENT'S MOTION TO DISMTSS, OR, IN THE ALTERNATIVE. FOR SUMMARY JUDGMENT

PATTONBOGGSLLP DavidP. Callet(DC BarNo. 181990) (DC BarNo. 470677) DavidS. Panzer Greenberg TraurigLLP 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 ................... ii

PATTON BOGGS' MEMORANDUM OPPOSING THE GOVERNMENT'S MOTION TO DISMISS,OR,IN THE ALTERNATIVE, FOR SUMMARY JUDGM8NT............ .................1 4RGUMENT............ I. ................2

THE GOVERNMENT'SMOTION TO DISMISSMUST BE DENIED BECAUSETHE SETTLEMENT ACT'S PAYMENT PROVISIONIS MONEY-MANDATING. ............. ...................2 THE GOVERNMENT'SALTERNATIVE MOTION FOR SUMMARY JUDGMENT MUST BE DENIED BECAUSENO JUDICIAL PRESUMPTION APPLIES. .........4 A. ChevronDeference DoesNot Apply Because Settlement Is The Act Not Ambiguous;Moreover,As The Government Admits,The Secretary's Interpretation Impermissible. Is ........................5 The Indian CanonOf Construction DoesNot Apply Because The Settlement Is Unambiguous; Act EvenIf It Were Ambiguous, The Unambiguous Legislative History \ilould Trump Any Judicial Presumption............. ...........6

II.

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THE GOVERNMENT ACKNOWLEDGESTHAT THE SECRETARY COMPLIED WITH CHEROKEE NATION INSTRUCTIONS,THEREBY UNDERSCORING THE GOVERNMENT'SLIABILITY TO PATTON BOGGSFOR FAILING TO PAY ITS FEES"AS PROVIDED FOR IN IPATTON BOGGS'I INDIVIDUAL TRIBAL ATTORNEY FEE CONTRACT[]." ........................8

CONCLUSTON

APPENDIX TO PATTON BOGGS' MEMORANDUM OPPOSINGTHE GOVERNMENT'SMOTION TO DISMISS,OR,IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT........... ...........10 EXHIBIT A EXHIBIT B

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TABLE OF AUTHORITIES Federal Cases AD GlobølFund v. UnitedStates, 67 Fed.Cl. 657(2005) Def, Council,Inc., ChevronUSA,Inc. v. Nøturøl Res. 467U.S.S37(1984) Nøtion v. UnitedStøtes, Chickøsøw s34U.S.34 (2001).. v. DeCoteaa DístrictCountyCourtfor the TenthJudicial Dist., 420U.S.42s(r97s) N.L.R.B. v. Puebloof San Juan, (10th Cir.2002). 276F.3d1186 Inc. OntørioPowerGenerøtíon, v. UnítedStates, (Fed.Cir. 2004) 369F.3d1298 RedLake Bønd v. UnitedStøtes, r7 cr. ct.362 (19S9)....... Indiøn Tríbe,Inc., South Cørolinøv. Catawba (1e86) 476U.S.49S v. UnitedStøtes Thompson, (10thCir. 1991). 94lE.2d1074 FederalStatutes 25 U.S.C. 1779e..... $ Materials Legislative ............... H.R. Rep.No. 107-632 ................7 .......passim .......6, 7 ,

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IN THE UNITED STATESCOURTOF FEDERALCLAIMS NATION OF THE CHEROKEE OKLAHOMA, Plaintiff,
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OF THE UNITED STATES AMERICA,
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No. Case 218-89

PATTONBOGGSLLP
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Chief JudeeEdwardJ. Damich

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OF THE UNITED STATES AMERICA, Defendant.
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PATTON BOGGS' MEMORANDUM OPPOSING THE GOVERNMENT'S MOTION TO DISMISS, OR' IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT The govemment makestwo altemative motions: first, it moves to dismiss Patton seeks the Boggs' Complaintfor failure to statea claim; in the alternative, government judgment. Docket No. 138,Defendant'sMotion to Dismiss,or in the summary Alternative, for Summary Judgment("Government's Brief') at 13. To supportof its motion to dismiss, the governmentarguesthat the SettlementAct's attorney fee (the "PaymentProvision"),is not money-mandating, provision,25 U.S.C. $ 1779e(a) that the Court's December19,2005 Opinion and Order ("Opinion"), while it recognizes The that the PaymentProvisionis money-mandating. DocketNo. 125,determined Patton Boggs has no contractualrelationship with the that, because governmentassumes government,the Secretaryof the Departmentof the Interior (the "Secretary") has no duty

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to Patton Boggs under the PaymentProvision. But "[a] plain reading of [the Payment that the statutemandatesthat the Secretarypay Provision] unequivocally demonstrates their fees." Opinion at 15. As explainedbelow, the government's the attorneys argumentsto the contrary remain unavailing. To support its alternativemotion for summaryjudgment, the government contendsthat the PaymentProvision "imposed a duty upon the Secretaryonly to pay Nation instructedher to PàY,"(Government's thoseattorney'sfeeswhich the Cherokee Brief at 9), and further contendsthat the Secretaryacted,in fact, as the CherokeeNation instructed.Id. at 12-13;Attachmentto DocketNo. 138,Declarationof DouglasA. Lords Nation's instructions. indeedcompliedwith the Cherokee ("Lords Decl."). The Secretary The PaymentProvision, however, required the Secretaryto do more than simply below, thejudicial described Nation's instructions.For reasons following the Cherokee presumptionsthe govemment urgesto supportits argumentsdo not apply here. Motion To Dismiss,Or,In The Alternative,For Summary The government's Judgmentshould be denied. ARGUMENT I. THE GOVERNMENT'S MOTION TO DISMISS MUST BE DENIED BECAUSE THE SETTLEMENT ACT'S PAYMENT PROVISION IS MONEY-MANDATING. The Court has ruled that Patton Boggs statesa Tucker Act claim over which the proffers no reasonfor the Court hasjurisdiction. Opinion at 13-15. The government Court to reverseitself beyond those argumentsthe Court previously rejected.l In support
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that The Court's holding that "[a] plain reading of [the PaymentProvision] urequivocally demonstrates pay the attorneystheir fees," (Opinion at l5), squarelyrejectedthe the statutemandatesthat the Secretary govemment's argumentthat the Secretaryowed a duty only to the Indian Nations. See also Opinion at 14 ("Defendant's argumentthat the Secretary'sobligation to pay attomey's fees under Section 1779eof the SettlementAct is ministerial is contrary to logic."). The governmentadmits it previously made this

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of its argumentthat the Secretaryowes a duty only to the CherokeeNation - and not to Patton Boggs - the governmentrefers severaltimes to a settlement"agreement," as incorrectly, that Patton Boggs is owed distinct from the SettlementAct, and then asserts, Patton Boggs was not aparty to the settlement no duty by the Secretarybecause Brief at 7. Simply stated, PattonBoggs' Tucker Act claim "agreement." Government's is not predicatedon the existenceof any settlement"agreement." Rather, it is basedon PaymentProvision. SeeOpinion at l1; seeølso, Act's money-mandating the Settlement relied upon by the cases Docket No. 127,ComplaintIn Intervention. Therefore, governmentare inapplicable because they appearto be basedon the notion that this irrelevant settlement"agreement" definesthe duties betweenparties. The government also contends that, "[a]s a generalrule ... the natureof the [money-mandating]obligation is clear and the plaintiff is often the entity to whom the obligationat issueruns." Government'sBrief at 7 (citationsomitted). In this case, Patton Boggs is the Intervenor-Plaintiff and the Secretaryowes an obligation to Patton Boggs. The governmentgoeson to state that a money-mandatingstatutegrants "a right to be paid a certain sum." Id. (citing Ontario Power Generation,Inc. v. United States, doesnot contendthat the 369 F.3d 1298,1301(Fed. Cir. 2004)). The government SettlementAct lacks a "certain sum" that the Secretary"shall pay." Seeid. Indeed, under the SettlementAct, that certain sum is "those feesprovided for in the individual tribal attorneyfee contracts." 25 U.S.C. $ 1779e(a).For PattonBoggs,that sum is ten percentof the amountsrecoveredby the CherokeeNation.

argumentto the Court. Government'sBrief at 6; seealso Docket No. 124,Transcriptof the December13, 2005 Hearing at 30 (The governmentcontendedthat the Secretary's"duty here relatesto protecting the situation."). tribes.... So simply put, ... it's not a money-mandating

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Still fixated on a contractualclaim that Patton Boggs doesnot make, the governmentgoeson to state,"the attorneyshave no contractualrelationship with the United States,but only with the three Indian Nations." Govemment's Brief at 7 (citing Ontario Power,369 F.3d at 1301;.2 While it is true that, in Ontario Power,the Federal Circuit concludedthat the plaintiff could not bring a Tucker Act claim againstthe government, that caseis completelyinapposite.3 Here,the basisfor PattonBoggs' claim is statutory. Therefore,whether there is a contractwith the governmentis not a valid basisto dismissPattonBoggs' claim.

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THE GOVERNMENT'SALTERNATIVE MOTION FOR SUMMARY JUDGMENT MUST BE DENIED BECAUSENO JUDICIAL PRESUMPTIONAPPLIES. The government notesthatthe Secretary determined the Payment that Provision*

"requires the Secretaryto executea purely ministerial act in carrying out the instructions Nation as expressed the post settlement in resolutions the Council." of the Cherokee of Government's Brief at 9. The governmentcontendsthat the Secretary'sinterpretationis

the fact that the payment terms of Patton Boggs' attorney fee contract (Complaint in Intervention, Exhibit 1) must be examined here, the Tucker Act rights here at issueare statutory, not contractual. 3 ln Ontario Power, a Canadiancompany sued the govemment to recover money that it had paid to U.S. companiesfor taxes, which the U.S. companieshad independentlydecidedto passon to their customers, were unconstitutional.This Court dismissed lack ofjurisdiction for but which the plaintiff contended becausethe Canadiancompany had not paid the taxes directly to the government,but allowed the U.S. companiesto intervene. Ontario Power standsfor the proposition that the U.S. companies,like Patton Boggs, were the real parties in interestand had standingto seeka refund. Ontario Power doesnot standfor the proposition that Patton Boggs had no relationship with the government,only with the CherokeeNation. Nor does it support the government's argument in any other respect. o The Payment Provision states,in relevant part: (a) Payment ...from funds authorized be appropriated the Settlement to Act], the Secretary shall [by pay to the Indian Nations' attorneysthose feesprovidedfor in the individual tribsl øttorneyfee contrscts as approved by the respectiveIndian Nations. (emphasis Appendix at A-1, 25 U.S.C. $ 1779e(a) added).

'Notwithstanding

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Def. Council,|nc.,467 entitledto deference under ChevronUSA,Inc. v. Natural Res. that, Brief at 9. The govemmentnext contends U.S. 837, 843 (1984). Government's under "the Indian canon of construction . . . any 'ambiguous expressions'in statutes

passed the benefit of Indians,or Indian tribes must be resolvedin their favor." Id. at for applieshere. l1 (emphasis original). Neitherjudicial presumption in A. Chevron DeferenceDoesNot Apply BecauseThe SettlementAct Is Not Ambiguous; Moreover, As The Government Admits, The Secretary's Interpretation Is Impermissible.

The Court needonly defer to the Secretary'sinterpretationof the SettlementAct with respect the specificissue[.] [T]he question to "if the statuteis silent or ambiguous for the court is whether the agency's answeris basedonapermissíble constructionof the added)(footnoteomitted). As this Court statute."Chevron,467 U.S. at 843 (emphasis has recognized,"faf plain reading of [the Pa¡rnent Provision] unequivocally that the Secretarypay the attorneystheir fees." that the statutemandates demonstrates Opinion at 15. Given the Secretary'smandatory duty to pay the attorneys,the Secretary'sinterpretationthat, instead,shewould executethe whims of the Cherokee Nation is entitled to no deference. Moreover, there is simply no permissibleway to read the PaymentProvision as requiring "the Secretaryto executea purely ministerial act in carrying out the instructions of resolutions the Council." in Nation as expressed the post settlement of the Cherokee Government's Brief at 9. In fact, the governmentadmits that the Secretary's interpretationrenders"superfluous" the phrasein the PaymentProvision "as provided for in the individual tribal attorney fee contracts." Id. at 10. Thus, the Secretaryhas not the advancedapermissible constructionof the SettlementAct because Secretary's interpretationreadsout of the statutethat the CherokeeNation's attorneysare to be paid

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"those fees provided for in the individual tribal attorney fee contracts.. .."5 The is impermissibleinterpretation not entitledto deference. Secretary's B. The Indian Canon Of Construction Does Not Apply BecauseThe SettlementAct Is Unambiguous; Even If It Were Ambiguous, The Unambiguous Legislative History Would Trump Any Judicial Presumption.

The Secretary'suntenableinterpretationof the SettlementAct doesnot createan alternativereadings. AD Global "ambiguity," which requirestwo or more reasonable, Fund v. tJnitedStates,67 Fed. Cl. 657,672 (2005) ("Ambiguity in a statute... normally meanstwo or more alternativereadings,all having some claim to respectand none the leading to absurdresults.") (citation and quotation marks omified). Consequently, governmentcannot simply "submit[]"6 that the PaymentProvision is ambiguousand, then, claim that the Court should apply a presumptionto resolvethat ambiguity. The outer bounds of any presumptionin SupremeCourt is very clear about the reasonable favor of Indians: "[t]he canon of constructionregarding the resolution of ambiguities in favor of Indians, however, doesnot permit reliance on ambiguities that do not exist; nor v. s." intent of Congres South doesit permit disregardof the clearly expressed .Cqrolina CatawbaIndian Tribe, lnc.,476 U.S. 498, 506 (1986) (footnoteomitted). Act's PaymentProvisionis otherwiseambiguous, the Even assuming Settlement the legislative history is not, and, therefore,would resolve any potential ambiguity. See hastwo or more plausible AD Gtobal Fund,67 Fed. Cl. at 672 ("However,if a statute alternativereadingsand thus is deemedambiguous,the next step is for the court to look to the legislative history.") (citations omitted). Committee reports are the most

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that also avoidslike the plagueany mentionof the legislativehistory's statement The government intent that attorneysbe paid their fees basedon their attorney fee contracts. specifies Congress' u Government'sBrief at I l.

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persuasiveof all forms of legislative history and deemedto be "highly persuasive"with this Court. Id. at 677 (citation and quotation marks omitted). In this case,the House of explainshow $ 1779eoperates:"This section Committeeon Resources Representatives' authorizesthe Secretaryto pay the Nations' attorneysthose sums owed them under their but respective contracts, imposesa cap of ten percentof the Nation's allocationof funds under [$ 1779c(c)]." Appendix at A-9, H.R. RBp.No. 107-632(discussing appropriated Section 1779eof the Statute). The legislative history statesnothing as to any subsequent the "approval" of attorneysfees by the Indian Nations; instead,it expresses plain meaning of the statutoryprovision: the Indian Nations' attomeysare to be paid in accordøncewith the terms of their contrøcts. This legislative history is unequivocal, thereby precluding any need to look to any judicial presumption. SeeAD Global Fund, 67 Fed. Cl. at 672. contrary interpretation, Thus, even if the governmenthad proffered a reasonable the Act's lucid legislativehistory precludes applicationof any the Settlement presumption in favor of the CherokeeNation. SeeChickasawNation v. United States, intent and 534 U.S. 84, 85 (2001) (relying on legislativehistory to determineCongress's ruling the presumptioninapplicable if it "would producean interpretationthat we conclude would conflict with the intent embodiedin the statuteCongresswrote"). As this Court has recognized,"legislative history should be examinedbefore a presumption is applied." SeeAD Global Fund,67 Fed. Cl. at 672 (citationomitted);seealso Red statutes to Lake Band v. (lnitedStates,17Cl. Ct.362,381 (1989)("This rule [construing benefit Indians] doesnot permit a constructionthat contradictsexpressstatutory language or legislative history, however.") (citing DeCoteau v. District County Court for the Tenth

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Judicial Dist., 420 U.S. 425, 445 (1975)). Other federalcourtsalso look to legislative history before they apply any judicial presumptionin favor of Indians because clear congressional intent may be found in legislativehistory. SeeN.L.R.B.v. Pueblo of San J u a n , 2 7 6 F . 3 d 1 l 8 61 1 9 4 ( l O t h i r . 2 0 0 2 ) ; ( l n i t e d S t a t e s v . T h o m p s o n , 9 4 I F . 2 d 1 0 7 4 , , C 1077-7811Oth 1991)(compilingcases). Cir.

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THE GOVERNMENT ACKNOWLEDGES THAT THE SECRETARY COMPLIED \ilITH CHEROKEE NATION INSTRUCTIONS, THEREBY UNDERSCORING THE GOVERNMENT'S LIABILITY TO PATTON BOGGS FOR FAILING TO PAY ITS FEES ..AS PROVIDED FOR IN IPATTON BOGGS'I INDIVIDUAL TRIBAL ATTORNEY FEE CONTRACT[]." As noted above,Paffon Boggs agreesthat the Secretarycomplied with Cherokee

Nation instructions insteadof the expressterms of the SettlementAct. Rather than paying the attorneystheir feesas the SettlementAct mandates, Secretarypaid fees to the those attorneysas directed by the CherokeeNation without regard for whether those personshad individual attorney fee contractsand without regard for the fees that were "provided for" in such contracts. While the government's admissionis commendable,in no way does it defeat Patton Boggs' claim - it supportsit. CONCLUSION The govemment's Motion defeatsitself. First, the governmentarguesthat the SettlementAct is not "money-mandating,"but then admits that the Court has rejectedthat argument. The govemment attemptsto re-arguethat issue,without advancingany argumentthat would give this Court any reasonto disturb its prior decision. Next, the governmentadmits that the Secretary'sinterpretation"has the effect of rendering the phrase 'as provided for in the individual tribal attorney fee contracts' arguesin favor of the superfluous"(Govemment'sBrief at 10),but nevertheless

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Secretary'sinterpretation of the SettlementAct. The govemment tries to salvagethe Secretary'sinterpretationby claiming that the languageof the SettlementAct's Payment Provisionis "ambiguous,"but ignoresthe Settlement Act's unambiguous legislative history which resolvesany potentialambiguity. Finally, for whatever reason,in its third "argument," supportedby a swom Declaration,the governmentagreeswith Patton Boggs that, in canying out her duty under the SettlementAct, the Secretaryfollowed the explicit instructions of the Cherokee Nation, insteadof paying the attorneys"those feesprovided for in the individual tribal attorneyfee contracfs."25 U.S.C. $ 1779e(a). The govemment'sMotion To Dismiss,Or, In The Alternative,For Summary Judgment shouldbe denied.

Respectfully submitted,

o.181990) 470677) DavidS. P GREENBER Ave, 800Connecticut NW, Suite500 Washington, 20006 DC 202-331-3100 (fax) 202-331-3101 [email protected] [email protected]
David P. Callet

March20,2006

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IN THE I.JNITEDSTATESCOURTOF FEDERALCLAIMS THE CHEROKEE NATION OF OKLAHOMA,
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THE UNITED STATESOF AMEzuCA. Defendant.
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Case 218-89 No.

PATTONBOGGS LLP
Intervenor Plaintiff,

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Chief JudgeEdward J. Damich

THE LINITEDSTATESOF AMERICA.
Defendant.
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APPENDIX TO PATTON BOGGS' MEMORANDUM OPPOSING OR, THE GOVERNMENT'SMOTION TO DTSMISS, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

PATTONBOGGSLLP DavidP. Callet(DC BarNo. 181990) (DC Bar No. 470677) DavidS. Panzer Greenberg TraurigLLP 800Connecticut NW, Suite500 Ave, DC Washington, 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected]

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