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

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

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PATTONBOGGSLLP Plaintiff, Intervenor

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Chief JudgeEdward J. Damich

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THE UNITED STATESOF AMERICA, Defendant.
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PATTON BOGGS' MEMORANDUM OPPOSING THE CHEROKEE NATION'S MOTION TO DISMISS

LLP PATTONBOGGS DavidP. Callet(DC BarNo. 181990) (DC DavidS.Panzer BarNo.470677) TraurigLLP Greenberg Ave, 800Connecticut NW, Suite500 DC Washington, 20006 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 ..................

THE CHEROKEE NATION'S PATTON BOGGS' MEMORANDUM OPPOSING .................1 TO MOTTON DISMISS........... I.
THE CHEROKEE NATION PROFFERS NO BASIS TO RECONSIDER .,..,.......2 THIS COURT'S PRIOR DECISION ON JURISDICTION A. This Court Should Not Reconsiderlts Opinion BecauseThe Cherokee Nation's Arguments Are No Different Than Previously Argued And ......................2 RejectedBy This Court. l. The Law Of The CaseDoctrine UnderscoresWhv The Court Coøld But,Sl¿azldNol Reconsiderlts December 19. 2005 .................2 Opinion... Everv Jurisdictional Argument PresentedIn The Cherokee Nation's New Motion To Dismiss Was SpecifÏcally Considered ....................3 And Explicitlv ReiectedBv This Court. (a) The CherokeeNation's First Jurisdictional Arsument Was PresentedAt Oral Argument in December 2005. ReiectedIn This Court's Opinion. And Is Now ...................4 RepeatedIn The Instant Motion. The CherokeeNation's Secondand Third Jurisdictional Arguments W ere Copied Verbatím ßrom The Cherokee Nation's Opposition To Patton Boggs' Motion To Intervene. And \ilere Also Reiected In This Court's ......................5 Opinion....

2.

(b)

B.

The Only Nuance To The CherokeeNation's Renewed Argument Is Immaterial To The Just Resolution Of The Dispute, And Otherwise ...................6 UnsupportedIn Law And Fact..........

II.

PATTON BOGGS HAS STATED A CLAIM AGAINST THE UNITED STATES, UNDER THE MONEY-MANDATING SETTLEMENT ACT, ........10 SEEKING ONLY A NAKED MONEY JUDGMENT........... A. B. The Cherokee Nation Fails To Meet (Or Even Address) The Standard ....................11 For A Motion To Dismiss................ This Court Implicitly Has RejectedThe Cherokee Nation's Argument That The Secretary,As A Matter Of Law, Correctly Construed The .......13 SettlementAct. ..........

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C.

lts That PattonBoggs Nation Confuses Assertion The Cherokee Potential(But FailedTo StateA Claim, With The Government's That Claim ..,.,.....,14 That Seek Reduce To Invalid)Defenses ......................16

CONCLUSION

APPENDIX TO PATTON BOGGS' MEMORANDUM OPPOSINGTHE .................18 CHEROKEENATION'S MOTION TO DISMISS. EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F

s u.s.c. s349....... $ s u.s.c. s942....... $
7 U.S.C. 1446....... $ 19U.S.C. 1619....... S 24 U.S.C. 22sg....... $

A-1 .............. .............. A-2
A-3 .............. A-9 ............ A-11 ..........

CHEROKEE,CHOCTAW, AND CHICASAW NATIONS CLAIMS SETTLEMENT ACT, A-14 ............. ET 25 U.S.C. 1779, SEg.... SS 28 U.S.C. 463......... $ 42 U.S.C. 2s4......... S A-32 .......... A-33 ..........

EXHIBIT G EXHIBIT H EXHIBIT 1

A RED-LINE COMPARISONBETWEEN (1) ARGUMENTS II A & B FROM THE CHEROKEE NATIONS' OPPOSITIONTO MOTION TO INTERVENE BY PATTON BOGGSLLP (ORTGINALDOCUMENT) AND (2) ARGUMENTS II B & C FROM THE CHEROKEE NATION'S MEMORANDUM IN SUPPORTOF ITS MOTION TO DISMISSCOMPLAINT IN INTERVENTION A-35 oF PATTON BOGGSLLP (NE\il DOCUMENT).............

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TABLE OF AUTHORITIES Cases Federal Agwiøk v. United States, (Fed. Cir.2003). 347F.3d1375 Brødley v. UnítedStøtes, 870F.2d1578(Fed.Cir. 1989). Int'l v. UnítedStøtes, C.H. Robínson (2005) 64 Fed.C1.651 ............10

............10

...11,12

Nøtion v. UnitedStøtes, Cherokee g37F.2d 1539 Cir. 1991).....................15 635 (10th Cir.), reh'gdenied,g48F.2d (10th Dßtrict of Columbíav. United Støtes, 67 Fed. CL292(200s) Doe v. UnitedStates, 100F.3d1576(Fed.Cir. 1996). Exxon Corp. v. UnitedStøtes, 931F.2d874(FedCir. 1991). Florídø Power & Líght Co. v. UnitedStates, 66 Fed.Cl. 93 (2005) Grav v. UnìtedStates, 886F.2d 1305(Fed.Cir. 1989). Hopi Tribe v. UnitedStates, 55 Fed.Cl. 81 (2002) Mønguølv. UnitedStates, 27 ßed.CI. 480(1993) McBryde v. UnìtedStates, 299ß.3d1357(Fed.Cir.2002) McGowønv. Sec'y,Dep't of Health & Human Sucs., 31 Fed. Cr.734(1994) Moore v. UnítedStøtes, 63 Fed.Cl. 781(2005) .........10 ............10

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

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

............10

...........10

.........10

.............10

...........2 .........15

lll

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Ontario Power Generation, Inc. v. United Støtes, 369 F.3d 1298(Fed.Cir.2004). Sioux Nøtion of Indiøns v. Unìted States,

............10

244 6s0F.2d (Ct.Cr.1981)..
Sissteton & ll/ahpeton Bands or Tribes v, Uníted States, 423F.2d1386(Cr. Cl. 1970).. United States v. CherokeeNation, 480 U.S.700 (1987),................. United States v. Mitchell, 463 U.S. 206 (1983) United Støtes v. Testøn, 424U.5.392 (1976) Íl/. ShoshoneldentiJiable Group v. Uníted States,

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...........6,12

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

10 ..........4,

............4, 5

(198r) 6s2E.2d4r
WhìteMountain ApøcheTribeof Arizonø v. UnitedStøtes, (Fed.Cir. 1994) uÍfd,31 F.3d1176 30 Fed.Ct. S (1993), llolfchild v. United States, (2005) 68 Fed.C1.779 FederalStatutes

...............r2
......12

...........3

s u.s.c.$ s349....... s u.s.c.$ s942.......
7 U.S.C. 1446....... $ 19U.S.C. 1619....... $ 24 U.S.C. 22sg....... $ Act' NationsClaimsSettlement Choctaw,and Chicasaw Cherokee, 1779, seq. et 25 U.S.C. $$ 28 U.S.C. 463......... $ 42 U.S.C. 254......... S

.................10 .................10
.................10 ...............10 ...............10

..............passim ...............10 ...............10

lv

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IN THE UNITED STATESCOURTOF FEDERALCLAIMS NATION OF THE CHEROKEE OKLAHOMA,
Plaintiff,,
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THE I.]NITEDSTATESOF AMERICA, Defendant.
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No. Case 218-89

PATTONBOGGSLLP
Intervenor Plaintiff. v.

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J. Edward Damich chief Judge

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OF THE I-INITEDSTATES AMERICA,
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PATTON BOGGS' MEMORANDUM OPPOSING THE CHEROKEE NATION'S MOTION TO DISMISS Similar to its previouslyfiled Oppositionto PattonBoggs' Motion to Intervene that Nation's Motion to Dismiss contends (DocketNo. I 18, "CN Opp"), the Cherokee this Court lacksjurisdiction to considerPatton Boggs' claim, and, in the alternative,that Act's attorneyfee provision,25 U.S.C' of interpretation the Settlement the Secretary's (the "PaymentProvision"),is correctas a matterof law. The arguments $ 1779e(a) advancedin support of this Motion have beenpreviously consideredand properly denied. Se¿DocketNo. 125,December19,2005 Opinion and Order ("Opinion"). The Cherokee no Nation presents valid basisto dismissPattonBoggs' Complaint. Its Motion to Dismiss,therefore,shouldbe denied.

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I.

THE CHEROKEE NATION PROFFERS NO BASIS TO RECONSIDER THIS COURT'S PRIOR DECISION ON JURISDICTION. A. This Court Should Not Reconsiderlts OpÍnion BecauseThe Cherokee Nation's Arguments Are No Different Than Previously Argued And Rejected By This Court. 1. The I,aw Of The CaseDoctrine Underscores\ilhv The Court Opinion. of reconsideration the Opinion. The Nation's Motion seeks The Cherokee

CherokeeNation correctly arguesthat the law of the casedoctrine doesnot precludethis "[o]rderly and efficient case its Court from reconsidering Opinion.l Nonetheless, that questionsonce decidednot be subjectto continued argument administration suggests Fed' Cl. 93,95 (2005)(quoting ...." Florida Power & Light Co. v. UnitedStates,66 Exxon Corp. v. tJnitedStates,93l F.2d874,877 (Fed Cir. 1991)(quotationomitted)). Even were the Court of FederalClaims to review its own interlocutory order, "the practiceis to treat eachdecisionas law of the case,departingfrom it only for certain decision." law, or a clearly erroneous supervening suchas new evidence, reasons, , McGowan v. Sec'y,Dep't of Health and Human Svcs. 3 I Fed. Cl. 734,737 (1994) an (citation omitted). As this Court recentlyexplainedin reconsidering interlocutory order: The law of the casedoctrine protectsthe settledexpectationsof the parties that may warrant and promotesorderly developmentof the case. Reasons the discovery of new and departurefrom the law of the caseinclude different material evidencethat was not presentedin the prior action, or an intervening changeof controlling legal authority, or when the prior decision is clearly incorrect and its preservationwould work a manifest injustice.

I The Cherokee Nation's Memorandumin Supportof Its Motion to Dismiss(DocketNo' 135,"CN Memo") at5 n.4,

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and Wolfchildv. UnitedStates,68Fed.Cl. 779,785 (2005) (citations,internalquotations, other markings omitted). The Court has ruled that Patton Boggs statesa Tucker Act claim over which the Nation has Court hasjurisdiction. Opinion at 13-15. As explainedbelow, the Cherokee proffered no new reasonsfor this Court to reverseitself. 2. Every Jurisdictional Arsument PresentedIn The Cherokee Nation's New Motion To Dismiss Was Specificallv Considered And Explicitly Reiected By This Court.

that the Court's Opinion was asserts Nation disingenuously The Cherokee renderedwithout the CherokeeNation having had a real opportunity to opposePatton Nation goesso far as to say: "While we Boggs' Motion to Intervene. The Cherokee recognizethat the Court has found the SettlementAct to be a money-mandatingstatute, the unorthodox manner in which Patton Boggs advancedand then restyled its claims raising this central argumentfor the first time only in a Reply Brief - deprived the Nøtion and the Uníted Statesof an opportuníty to bríef thøt issue at all." CN Memo at 5 Nation briefed the (emphasis is added). This assertion simply untruebecause Cherokee this central point in its CN Opp.t In fact, the very argumentsnow advancedby the Nation not only were arguedto the Court in December2005,but, most of those Cherokee purportedly "new" argument were merely copied from its previously filed CN Opp.

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See,e.g.,CN Opp at23-26 (ArgumentIII.B. "This Court hasno jurisdiction underthe Tucker Act to consider Patton Boggs' claim for attorneysfees, which is not a suit for money damagesagainstthe United States.");see also id. at 12 (In support of its argumentthat Patton Boggs' relief could be found only in the District Court, the CherokeeNation urged: "The proposition that the SettlementAct - and in particular the languageof section 1'779e does not provide this Court with jurisdiction to review and fix attorney fee paymentsis best illustrated by contrastwith a statutethat does do so.").

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(a)

The CherokeeNation's First Jurisdictional Argument Was At Presented Oral Argument in December2005.Rejected In In This Court's Opinion. And Is Now Repeated The InstantMotion.

The first jurisdictional argumentin the CherokeeNation's instant Motion reads "the SettlementAct is not a money-mandatingstatutethat gives rise to this Court's Nation Tucker Act jurisdiction." CN Memo at 6. On December13,2005,the Cherokee argued: MR. LAZARUS: Yes, Your Honor. Thank you. To be a moneymandatingstatute,the SupremeCourt has determinedin United Statesv. v. Mitchell, quoting United States lTestanl,a casewhich is cited in the recentDistrict of Columbialitigation in this Court, PattonBoggsmust that the SettlementAct "can fairly be interpretedas demonstrate mandatingcompensationby the federal goveffiment for the damages sustained." Now, a money-mandatingstatuteleadsup to judgments againstthe United Statespayable out of a judgment fund in the Treasury. There is not a word in the SettlementAct that indicatesor gives the slightesthint that for was going to be responsible paying attorney'sfeesif the United States exactly the oppositeway. The CherokeeNation did not. The statutereads Nation's money. with the Cherokee is [S]ecretary to pay the attorneys that's why it's not even seekinga judgment Patton Boggs knows that, and againstthe United States,but, rather, relief againstthe fS]ecretary. It's seekingequitablerelief; it's not seekinga moneyjudgment. Now, I'm surecounselwill say,"Oh, that's not right. We are seekinga moneyjudgment." But they arenot seekingmoneyjudgment out of the Treasury; they are seekingCherokeeNation money. And if they are seekinga money judgment, and they are seekingmoney out of the Treasury,then they are not seekingthe fund that the [S]ecretaryis administering,and there goestheir interestin the fund, and they strike out they now are no longer assertingan interestin under Rule 24(a) because anything that's involved in this lawsuit; they are seekingmoney from Uncle Sam. That's why I think this is not - there is no commitment here with paying U.S. money. for the United States 13, of DocketNo. 124,Transcript the December 2005MotionsHearing("Tr.") at27:I729:L After consideringthe CherokeeNation's argument,the Court concludedthat "the Act is money-mandating."Opinion at 13-15. In its Opinion, the Court twice Settlement

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referencesthe CherokeeNation's argumentat the December 13 motions hearing quoted above. Opinion at 13 (citing Tr. at 27-28);id. at 14 n.9 (same). In fact, the very same quote ftom (JnitedStatesv. Testan,424U.5.392, 400 (1976),was readby counselfor the CherokeeNation at oral argument,and was quoted in the Court's Opinion, and now is Nation's Motion. Tr. at 27-28;Opinion at 13; CN Memo at 6. in repeated the Cherokee After carefully consideringthat argument,and the contentionsof the United Stateson the sameissue,the Court determinedthat the SettlementAct is money-mandating. In doing so, this Court previously applied the correct standard: whether the SettlementAct "can fairly be interpretedas mandating compensationby the FederalGovernmentfor damages sustained."Testan, 424U .5. at 400 (citations and internal quotation marks omifted). In its first opportunity to brief this "new" issue,the CherokeeNation offers nothing new; rather, it simply recites againthe standardfound in the Court's Opinion, as previously urged by the CherokeeNation at oral argument. (b) Nation's Secondand Third Jurisdictional The Cherokee Ar gumentsW ere Cop i ed Ver bat i m Ft om The Chetokee Nation's OppositionTo PattonBoggs' Motion To And V/ere Also ReiectedIn This Court's Intervene. Opinion.

The entirety of the CherokeeNation's secondjurisdictional argument,under the heading "Apart from the Tucker Act, This Court Has No Jurisdiction under the SettlementAct to Adjudicate an Award of Attorneys Feesto Patton Boggs," is a three and a half pagesectioncopiedverbatímfrom the CN Opp.3 In additionto having been

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to CompareCN Opp at 12-15with CN Memo at ll-14 (omitting only a reference PattonBoggs' SupplementalMemorandum and adding only footnote 8); see ø/so Exhibit 1 (a redline comparison between theseargument sectionsdemonstratingthat CherokeeNation copied its secondjurisdictional argument from the CN Opp).

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Patton Boggs has madea previously rejected,this argumentis entirely irrelevant because Tucker Act claim. The CherokeeNation's third jurisdictional argument,under the heading "Patton Boggs' Causeof Action Is Really a Private Dispute with the CherokeeNation over which This Court Has No Jurisdiction," is anotherthree-pagesectioncopied verbøtím from the CN Opp, with only a few additional lines sprinkled in and replacing the words "supplementalMemorandum"with the words "complaint in intervention."4As this Court has ruled, competing attorney fee claims among counselof record in this Court are not a private dispute.s B. The Only Nuance To The Cherokee NationosRenewedArgument Is Immaterial To The Just Resolution Of The Dispute, And Otherwise Unsupported In Law And Fact.

The CherokeeNation now argues: "The jurisdictional questionfor this Court, however, is not whether the Secretaryhas a duty to pay the [attorneys]fees, but rather whose money is usedby the Secretaryto dischargethat duty." CN Memo at 6.6 The Nation states: Cherokee In its December19, 2005 opinion, the Court soughtto satisfythe test for a money-mandatingstatuteby assuming,without discussion,that the money to which the statuterequiresthe Secretary pay the attomeysis "still U.S. in other words, that the SettlementAct mandates governmentmoney" or, govemmentfunds...." Op. at 14. V/ith pay attorneys "that the Secretary of is the all due respect, Court's assumption not correct:the language the
o

Nation that is outsidethe CompareCN Opp at 16-20("8. PattonBoggsseeksrelief againstthe Cherokee jurisdiction of this Court.") with CN Memo at l4-18 ("C. PattonBoggs' Causeof Action Is Really a Private Dispute with the CherokeeNation over which This Court Has No Jurisdiction."); see also Exhibit 1 (a redline comparisonbetweentheseargument sectionsdemonstratingthat CherokeeNation copied its third jurisdictional argumentfrom the CN Opp). s 1386,l39l (Ct. Cl. 1970)("inacase orTribesv. UnitedStates,423F.2d Sissteton&l|rahpetonBands appearedfor claimants- generally under separate like this, where several attorneyshave, at different times, contracts- the dispute becomesmore than a private contractualsquabble") (citations and internal quotation marks omitted). 6 supra. Although this argumentwas not previouslybriefed,it is hardly "Ílew." SeeTr.27:17-29:1, quofed

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SettlementAct leadsto the contrary conclusion that the Secretaryis directed to pay the attorneyswith tribal trust funds. CN Memo at 7 (emphasisin original). This argumentis irrelevant andjust plain wrong. The CherokeeNation has misquotedthe Court's Opinion in order to set up a false comparison.The Court concluded: by The court is not persuaded the CherokeeNation's argumentthat section it 1779eis not money-mandatingbecause doesnot authorizepaymentout of the generaljudgment fund, but rather from a fund set aside for the CherokeeNation's payment of attorney's fees. Whether the money comes from the attorney escrow accountor the judgment fund, it is still U.S. govemmentmoney. Opinion at 14 (footnote omitted). Thus, this Court never ruled that the Cherokee tribal trust fund was "U.5. governmentmoney." Nor doesPatton Nation's separate Nation's tribal trust fund.7 Boggs' Complaint seekmoneypayablefrom the Cherokee Nation for the propositionthat moniesin cited by the Cherokee So, the numerouscases the tribal trust fund are not U.S. funds are irrelevant. Furthermore,the CherokeeNation's argumentis not premisedon any recognized to principle in law. It is simply baseless contend: "Tucker Act jurisdiction thus arises from a statutethat involves not only a mandateto pay money, but a mandateto pay Federalmoney." CN Memo at 7 (emphasisin original). A mandatethat the government must pay ¡b a mandatethat the govemmentmust pay with governmentfunds. This Court has never concluded that a statutemandatedthe govemment to pay a party money, but,

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Patton Boggs seeksa naked money judgment paid by the government. It doesnot matter to Patton Boggs whetherthatjudgment is paid from the attorneyescrowaccountor the judgment fund, If, however,the Nation's tribal trust fund, or, if the government governmentimproperly placedmoniesinto the Cherokee escrow fund, surely that can be correctedby the Secretaryor improperly paid monies out of the attorney of the this Court (in overseeing implementation the ConsentDecree). In any event,PattonBoggs doesnot the seek any monies that were properly depositedinto the CherokeeNation tribal trust fund because SettlementAct requires fees to be paid first before money is allocatedto the tribal trust fund. 25 U.S.C. $$ 1779c(d),1779e(b).

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the that it lackedjurisdiction because governmentwas statutorily required to nonetheless, pay with a third party's money. Congressobviously cannot require the governmentto Nation on page cited by the Cherokee pay with someone else'smoney. Nor do the cases 6 of its memorandumsuggestotherwise. Nor can the CherokeeNation prevail on the facts. What is relevant is that (a) Patton Boggs seeksmoney from the United States,(b) the SettlementAct provides for money to be paid to the attomeys beþre monies are depositedinto any tribal trust fund, and (c) the CherokeeNation has admitted that such moneys are not CherokeeNation funds by purposefully working with the govemmentto set up the attomey escrow fund somethingwhich the SettlementAct did not require. Patton Boggs here has suedthe United States- not the CherokeeNation. See generally,Docket No. 127, Complaintin Intervention. The money that PattonBoggs Act to pay seekscould have beenpaid with funds specificallyset asideby the Settlement of regardless whetherPatton Nations' attorneys.sAs the Court concluded, the Cherokee Boggs is paid from this "attomey fee escrowaccountor the judgment fund, it is still U.S. government money." Opinion at 14 (footnoteomiued). Unlike the "special Holding Account" for other Indian Tribes, however, the fund in which to place the attorneys' fees. 'See SettlementAct did not ueate a separate

(25 up totaling $40,000,000 U.S.C. $ 1779c(c)), to ten appropriations Act authorizes The Settlement percentof which was to be set asideto pay "lndian Nations' attorneys"with an "approved"contract. 1d. $ 1779e. The Act directs "lndian Nations' attomeys" to be paid first, beþre any "remaining funds" are to be to paid into the Indian Nations' Trust funds. Id. 55 1779c(d),1779e(b).The moneysappropriated pay the the Secretaryof the Departmentof the Interior attorneysfees were placed in a "special holding account" by (the "Secretary"). SeeDocket No. 109,Joint StatusReport;seealso Docket No. 138,Attachment, Declarationof DouglasA. Lords ("Lords Decl.") atll 6-7. PattonBoggs is one of two "[Cherokee] Nations' attorneys," with an "approved" contract, entitled to have its fees paid out of this set asideunder the SettlementAct (the other contract being expresslysubordinateto the Patton Boggs contract). Only "after" payment of attorneysfees is the CherokeeNation entitled to have 50% of the "remaining" amount depositedinto its "Tribal trust fund," i.e., atleast$18 million. 25 U.S.C. $$ 1779c(d),1779d.

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25 U.S.C. g 1779f(bx2) (describingthe "specialholding accountfor the benefit of the Indian Nations" to hold funds availablefor paymentof "Claims of other Indian Tribes."). the because Indian Nations' attorneyswere required Such an accountwas not necessary to be paid "before" the remaining funds were distributed to the Indian Nations. 1d Act, and not payingthe $ 1779c(d). But, having failed to comply with the Settlement account for the Indian Nations' attorneysfirst, the Secretaryestablisheda separate payment of attorneys' feesfollowing the CherokeeNation's instructions to the Secretary as to whom to pay, and how much.e The Secretarytook funds out of the Cherokee Nation tribal trust fund (where they did not belong) and placed them ínto the accountset any objectionby up for attomeys'fees. Lords Decl. at fl 6. The recorddoesnot suggest the CherokeeNation; to the contrary, the CherokeeNation has acquiescedin this fact in joint statusreports. S¿eDocketNo. 109,Joint StatusReport;Docket No. 137,Joint StatusReport. Thus, by participating in, and acquiescingin, the creation of a separate attomeys' fees,the CherokeeNation fund for the payment of Congressionally-mandated has admitted that the funds with which the attorneyswere to be paid arenot Cherokee Nation funds. Nation's tribal trust it For all of thesereasons, doesnot matterthat the Cherokee fund is not governmentmoney becausethe attorney escrow account set aside for the payment of attorneysfees most certainly is governmentmoney, and so is the judgment fund. Accord Opinion at 14.

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on 6 Co*pore Lords Decl. at'||f (accountestablished March 14, 2005) withPatton Boggs' Complaint Nation's the Cason'sOctober 13,2005 letter(referencing Cherokee Exhibit 3, AssistantSecretary 30, 2005); see also Docket No. 137,Joint on to instructions the Secretary February18, 2005, and March StatusReport.

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II.

PATTON BOGGS HAS STATED A CLAIM AGAINST THE UNITED STATES, UNDER THE MONEY-MANDATING SETTLEMENT ACT, SEEKING ONLY A NAKED MONEY JUDGMENT. statute. The Court hasruled that25 U.S.C. $ 1779eis a money-mandating

Opinion at 15. The Court further allowed PattonBoggsto file a Complaint in basedon25 U.S.C. $ 1779e. Id. PattonBoggs Interventionagainstthe United States a filed that Complainton January11,2006. Docket No. 127. In it, PattonBoggsasserts claim againstthe United Statesfor money damagesbasedon the money-mandatingl0 at7l,l5. Nomoreisrequiredtostate DocketNo.127 accordOpinion SettlementAct. a claim underthe Tucker Act. See UnitedStatesv. Mitchell, 463U.S. 206, 218 (1983) (stating that "there is simply no questionthat the Tucker Act provides the United States' consentto suit for claims founded upon statutesor regulationsthat createsubstantive rights to money damages.").

'o The PaymentProvisionrequiresthat the Secretary that the Settlement "shall pay," therebydemonstrating Opinion at 13 (citing Hopi Tribe v. UnitedStales,55 Fed. Cl. 8 1, 87 (2002)). In Act is money-mandating. Act setsforth a "certain sum" that PattonBoggs was to addition,the PaymentProvisionof the Settlement paid. SeeOntario Power Generation,Inc. v. UnitedStates,369F.3d 1298, 1301(Fed.Cir. 2004). be Money-mandating statutesoften define the "certain sum" to be paid by looking to another source. 'See an Agwiakv. united states,347F.3d 1375, 1380(Fed.Cir. 2003) (5 U.S.C. $ 59a2(a)mandates allowance McBryde v. UnitedStates,299F.3d prescribed the President."); by paid underregulations which "shall be "The Director of the AdministrativeOffice of the 1357,1361(Fed.Cir. 2002)(28 U.S.C. $ 463 mandates United StatesCourts may pay the costs of his defense. The Director shall prescriberegulations for such payments subject to the approval of the Judicial Conferenceof the United States.");Doe v. United Slates, may awardand pay "The Secretary 100 F.3d 1576, 1580(Fed.Cir. 2000) (19 U.S.C. $ l6l9(a) mandates suchpersonan amountthat doesnot exceed25 percentofthe net amountso recovered.");Grøv v. United of mandates the Secretary that (Fed.Cir. 1989)(7 U.S.C.$ 1446(dX3) F.2d 1305,1307-08 States,886 was given discretion over the terms and conditions Agriculture enter contracts,even though the Secretary was obligatedto offer); Bradley v. UnitedStates,870F.2d 1578, 1579 that the Secretary of the contracts with ... (Fed.Cir. 1989)(5 U.S.C.g 5349mandates "pay ... shallbe hxed and adjusted in accordance prevailingrates"), DistrictofColumbiav.UnitedStates,6TFed.Cl.292,305(2005)(24U.S.C. g 225g(b)(l) mandates Federalagencyis directedto pay the District of Columbiathe full "the appropriate costs for the provision of mental health diagnostic and treatmentsservicesfor the following types of patients");Mangual v. UnitedStates,27Fed.Cl. 480,488 (1993) (42 U.S.C. S 254d(dx3) mandates paymentof "the incomethat the memberwould receiveif the memberwas a [civilian memberof the NHSCl."). In this case,that "certain sum" to be paid is "those feesprovided for in the individual attorney fee 25 contracts." U.S.C.$ 1779e(a).

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Nation.ll PattonBoggs is not pursuinga contractclaim againstthe Cherokee A. The CherokeeNation Fails To Meet (Or Even Address) The Standard For A Motion To Dismiss.

of allegations Under RCFC 12, this Court should"'tteat all of the well-pleaded the complaintas true,"'and then dismissonly where it "'appearsbeyonddoubt that the plaintiff can prove no set of factsin supportof his claim which would entitle him to relief."' C.H. RobinsonInt'l v. UnitedStates,64 Fed. Cl. 651, 657-58(2005) (citations omitted). Here,PattonBoggshassatisfiedeachelementof its Tucker Act claim. The with this Court that only pleading "failure" the CherokeeNation cites is its disagreement the Therefore, fee Act's attorneys provision is money-mandating.12 the Settlement Nation's contentionthat PattonBoggshas failed to statea claim is merely a Cherokee repeatof its jurisdictional argument. Nation's argumentis Moreover,as shownbelow, much of the Cherokee predicatedon disputedfacts (which the CherokeeNation incorrectly allegesare material). of SeeCN Memo at23 ("PattonBoggs' statement its claim omits a numberof material facts..."). For example:

Nonetheless,the CherokeeNation disingenuouslycontinuesto advanceargumentsin its attempt to defeat a contract claim not assertedagainst it. SeeCN Memo at 23 ("Patton Boggs' statementof its claim . . . ignores a number of relevant principles of law - all of which negate its contrsct right theory of Nation's relianceon common law principlesgenerally added). Thus, the Cherokee recovery.")(emphasis involving contingencyfees(id. at26) is misplaced. to breachofcontract cases applicable As an initial matter, it is not clear that the CherokeeNation has standing to make an argument under Rule PattonBoggs hasnot stateda claim againstit. Even if the Court waived that standing l2 because requirement in its Opinion by directing the CherokeeNation to "file an answer or appropriatemotion by Nation's Motion to Dismissis an February20,2006,- (Opinion at l5), it is also not clearthat the Cherokee with only minor embellishments,that which has been it essentiallyre-hashes, "appropriate" motion in that decided. 't

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o The CherokeeNation contendsthat Patton Boggs' Contract expired (id.), even though Patton Boggs has allegedthat it was terminatedwithout cause(Docket No. 127, ComplaintIn Interventionat fl 15);t3and o The CherokeeNation contendsthat "Patton Boggs tries to zero out any fees to be paid to the other lawyers, with valid contracts,who also provided legal services" (CN in Memo at23 n.I6 (emphasis original)),ignoring PattonBoggs' allegationthat the only other attomey fee contract with the CherokeeNation is the Wilcoxen-Niebell Contract. "subjectto" PattonBoggs' Contract,which meansthat That contractis specif,rcally PattonBoggs' feeswere to be paid beforeany feeswere paid underthe Wilcoxen-Niebell Contract. Docket No. 127,ComplaintIn Interventionat n2l.'o Thesefactual argumentshave no place in a motion to dismiss. C.H. Robinson Int'1,64Fed.Cl. at657-58.

13 This factual dispute also is immaterial because,contrary to the CherokeeNation's suggestion,this Court does not reject attorney fee claims basedon an expired contract or one terminated without cause. In several of this Court's key Indian claims casesinvolving attorneysfees, one or more of the attorneysseeking payment had a contract that had expired, was withdrawn, or otherwise terminated, but that was never a basis upon which this Court denied a fee for work performed under an "approved" contract. See llhite Mountain Apache Tribe of Arizona v. UnitedStates,30Fed.Cl. 8, 13,23 (1993) ("attomeyswho were not award and whose last contractwith the plaintiff Tribe ended involved in the litigation resultingin the f,rnal awardeda fee by the Court), af'd,31 F.3d l0 yearsbeforethe frnal award was made" was,nonetheless, l l 7 6 ( F e d . C i r . 1 9 9 4 ) ;W . S h o s h o n e l d e n t i f i a b l e G r o u p v . U n i t e d S t a t e s , 6 5 2 F . 2 d 4 l ( 1 9 8 1 ) ( c o u n s e l awarded full l0% contingency fee even though he was fîred beforejudgment was entered); Sioux Nation of was Indians v. UnitedStates,650F.2d244 (Ct. Cl. 1981)(specialcounselin this case,Mr. Lazarus, with one of million, eventhough one of his contracts 10% fee on an awardexceeding $100 awardeda full the tribes he representedhad expired); Sisseton,supra (where attorney had withdrawn and assigned approved contract to new counsel ofrecord who obtained ajudgment, new counsel ofrecord was not entitled to entire l\Yo fee stipulated in his contract, and part of the award was given to the counselthat had withdrawn). 'o Moreover, if Patton Boggs is paid in full, that leaveshundredsof thousandsof dollars to pay the other attorneyswith subordinateclaims.

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B.

This Court Implicitly Has RejectedThe Cherokee Nation's Argument That The Secretary,As A Matter Of Law, Correctly Construed The Settlement Act.

The CherokeeNation contendsthat the Secretaryinterpretedthe SettlementAct correctly as a matter of law. CN Memo at 18-22. Yet, the Court has recognizedthat PB for hasa cognizable"claimagainstthe government money damages."Opinion at 15. The Court agrees,at least in part, with Patton Boggs' interpretationof the SettlementAct that the statute that "[a] plain reading of this provision unequivocally demonstrates that the Secretarypay the attorneystheir fees." 1d mandates skepticismof the Secretary's Moreover,the Court alreadyhas expressed interpretationof the SettlementAct that would give "the Indian Nations ... absolutecarte blanchewith regard to who they pay and what they pay [because]that seemsto me odd 'in that the legislaturewould have usedthe phrase the individual tribal attorney fee 'aS interpretation contracts,'and then Say, approved."'Tr. at 55:2-7. The Secretary's (which the CherokeeNation arguesis correct as a matter of law) is not one of the two to possible interpretationsthat the Court appears be considering. Id. at 55:12-56:17, 60:15-61:14. Knowing Patton Boggs' interpretationof the SettlementAct, the Court allowed that (a) PattonBoggsto file its Complaint. Implicitly, the Court eitherhas determined is interpretation incorrect is PattonBoggs' interpretation correct,or (b) the Secretary's the and, even if, under certain circumstances, CherokeeNation were permitted some fees,PattonBoggs still would be entitledto some approvalof PattonBoggs' attorneys fees under the money-mandatingSettlementAct. In either event, Patton Boggs has stated Nation's argumentis basedon its belief a Tucker Act claim. To the extentthe Cherokee

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that argumentshould be deniedbasedon that the SettlementAct is not money-mandating, the law of the casedoctrine and on its merits. C. The Cherokee Nation ConfusesIts Assertion That Patton Boggs Failed To state A Claim, With The Government's Potential @ut That SeekTo ReduceThat Claim. Invatid) Defenses

Without citation to any authority, the CherokeeNation arguesthat, if it can show that Patton Boggs might be entitled to less than the full amount claimed, then Patton not PattonBoggs'ohas pleaded[any] alternative Boggs hasfailed to statea claim because theory of recovery,so sucha causeof actionis not beforethe Court." CN Memo at24. Taken to its logical extreme,the CherokeeNation arguesthat, if Patton Boggs is entitled to one dollar lessthan it claims, it hasfailed to statea claim. Thereis no supportfor this it argument,because defiescontmonsense. in Nonetheless, supportof its Motion to Dismissforføilure to støtea claim,the CherokeeNation focuseson some specific (but legally incorrect) reductionsto the total Nation's recoveryfrom which PattonBoggs' ten percentfee amountof the Cherokee would statesomesort of set-off defense would be calculated. At best,suchreductions by which could be asserted the government.But thoseproposedreductionsfail on their merits as well; indeed,they are frivolous. First, the CherokeeNation contendsthat even under Patton Boggs' theory, it is not entitledto $2 million; instead,PattonBoggs is entitledto only $1.8 millionls because any money set aside for the attorneysis not part of the CherokeeNation's "tecoYery." Id.

15 The CherokeeNation further arguesthat its recovery is only $16 million and, therefore, Patton Boggs' Nation cannotseriouslyattemptto carveout ten percentfee is no more than $1.6 million. But the Cherokee from its "recovery" money that has been temporarily set aside for other Indian Claims which the Cherokee Nation knows it will receive.

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fees attorneys'contingency af 22-23,n.15. To the contrary,this Court hascalculated basedon a total "recovery."l6 The CherokeeNation also attemptsto limit the "recovery" upon which Patton Nation's recovery] to fee Boggs' contingency will be based, "the part fof the Cherokee claims." CN Memo at 24 arising from settlementof the Nation's mismanagement the (footnoteomitted;.17Nonetheless, "recovery" from which PattonBoggs' ten-percent fee is calculated- by definition - is not basedon the particular claims brought by Patton Nation Nation's "recovery," instead,is basedon what the Cherokee Boggs;the Cherokee Nation's argumentwere correctin principle, every received. Even if the Cherokee dispute that was resolvedby the SettlementAct was included within the scopeof the Nation's Complaint. Seegenerally, claims broughtby PattonBoggsin the Cherokee Nation's "recovery" is Docket No. l, Complaint. Hence,not one cent of the Cherokee unrelatedto Patton Boggs' efforts. And, but for Patton Boggs' efforts, the Cherokee Nation would not have recoveredone cent becausethe mattersbrought by other counsel all were dismissed,with prejudice,without achieving sny recovery! See United Statesv. Nation Nation,480 U.S. 700 (1987) (disposingof "takings" claim); Cherokee Cherokee Cir.) (disposingof "fair and honorabledealings" v. UnitedStates,937F.2d 1539(1Oth (1Oth reh'g denied,g48F.2¿,635 Cir. 1991). claims), Again, Patton Boggs' Tucker Act claim is for that amount that the Secretarywas Act's PaymentProvision. DocketNo. requiredto pay PattonBoggsunderthe Settlement
63 SeeMoore v. UnitedStares, Fed. Cl. 781, 785-86 (2005) (calculatingattorneys'contingencyfee based on the total settlementamount even though the settlementspecifically identified allocations for principal, interest and attorneys' fees). 't While the CherokeeNation claims to have "evidence" that "the various different componentsof claims that constitute the recovery [were basedupon] the servicesprovided (and results achieved) by all counsel in Nation," (CN Memo at24 n.l1 (emphasis original)),no suchevidencehasever been for the Cherokee even described,much less proffered to this Court. t6

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"shall pay ... thosefees I27, ComplaintIn Interventionat t[fl 20,23. Here, the Secretary provided for in [Patton Boggs' approved]individual tribal attorney fee contract[]." 25 U.S.C. $ 1779e(a).The amount"provided for" in PattonBoggs' Contractis ten percent of the amount "recovered," i.., "monetary or other quantifiable recovery for the Nation, throughthe litigation or legislativeprocess." DocketNo. 127,Exhibit Cherokee 1 at 3. The SettlementAct provided the CherokeeNation with a "monetary or other quantifiable recovery" equal to 50Yoof the $40 million appropriated,and thereby it required the Secretaryto pay Patton Boggs ten percentof that recovery, subjectonly to amountspreviouslypaid and the fee cap in 25 U.S.C. $ 1779e(b). CONCLUSION Stripping away (a) argumentswhich the Court has denied, (b) argumentsaimed at claims Patton Boggs doesnot make, and (c) argumentsbasedon immaterial facts, nothing remainsto be considered. The CherokeeNation tries in vain to createnew legal principles from whole cloth: (1) that a money-mandatingstatutemust also mandatethe payment of Federalmoney; and (2) fhat aTucker Act plaintiff fails to statea claim if, basedon disputedfacts,it is entitledto lessthan 100 centson the dollar. Thesestrained arguments,unsupportedby any applicablelaw, reinforce this Court's earlier rulings that Patton Boggs hss stateda Tucker Act claim upon which relief can be grantedwhen it Act's PaymentProvision] concludedthat "[a] plain readingof [the Settlement that the statutemandatesthat the Secretarypay the attorneys unequivocally demonstrates against have beenadvanced their fees." Opinion at 15. In short,no legitimatedefenses Patton Boggs' Tucker Act claim arising under the money-mandatingSettlementAct. Nation's Motion to Dismiss shouldbe denied. the For thesereasons. Cherokee

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lly Respectfu submitted,

David P. Cal David S. P

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

LLP UzuG
Ave, 800Connecticut NW, Suite500 DC Washington, 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected] March20,2006

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COURTOF FEDERALCLAIMS IN THE LINITEDSTATES NATION OF THE CHEROKEE OKLAHOMA"
Plaintiff,
* * +
{< {<

rk

*

OF THE I.]NITEDSTATES AMERICA.
Defendant.
* * ' f t *

:f

* * *
:f

No. Case 218-89

LLP PATTONBOGGS Plaintift Intervenor

* * {. + *
4.

Chief JudgeEdward J. Damich

STATESOF AMERICA, THE LTNITED Defendant.
t * { < * { < +

:,|. * :Ë
,|<

APPENDIX TO PATTON BOGGS' MEMORANDUM OPPOSING TO THE CHEROKEE NATION'S MOTION TO DISMISS

LLP PATTONBOGGS DavidP. Callet(DC BarNo. 181990) (DC BarNo. 470677) DavidS. Panzer TraurigLLP Greenberg Ave, 800Connecticut N'W,Suite500 DC V/ashington, 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected]

18