Free Joint Status Report - District Court of Federal Claims - federal

Case 1:02-cv-01383-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SAMISH INDIAN NATION, a federally recognized Indian tribe, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 02-1383L (Chief Judge Edward J. Damich)

Parties' Joint Status Report

Pursuant to this Court's Order of November 27,2006, the parties respecthlly submit this joint status report to advise the Court of their respective positions on the discovery disputes that remain and their recommendations on further proceedings.

Plaintiffs Position

While the parties have not resolved their disputes regarding discovery, the Plaintiff has a proposal on how to move forward with proceedings in the case

Following the Court's opinion and order of July 21,2006 authorizing Plaintiff to proceed with discovery, Plaintiff served its discovery request on Defendant on July 26,2006. Plaintiffs discovery consisted of requests for admission, interrogatories and requests for production of

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documents. The interrogatories and requests for production of documents applied only to the extent that Defendant denied a request for admission and called upon Defendant to provide information explaining the basis for the denial.

On October 19 and November 1, Defendant served its responses to those discovery requests. Defendant's responses consist of the interposition of numerous objections to every one of Plaintiffs requests.' A copy of Defendant's responses is Exhibit 1. Defendant's approach to Plaintiffs discovery is best illustrated by Defendant's decision to dispute or profess ignorance of the meaning of the most commonly-used words and phases contained in each discovery request. For example, Defendant refused to admit that the lists of Indian tribes it periodically publishes in the Federal Register identify the tribes that were federally-recognized at the time of publication, claiming confusion about the definition of the terms "tribe" and "Indian tribe" and asserting that other terms,such as "lists published" and "accurately identify" are so "vague and ambiguous" that Defendant could not respond. See Exhibit 1, Defendant's Combined Objections and Responses to Plaintiffs Discovery Requests at 10-11. Defendant made similar objections to all of the other discovery requests, claiming an inability to understand the meaning of words and phrases including "some amount," "federal funds," "federal assistance," and "a11ocation." See e.g., id. at 11, 13, 14,21, 36-37. Defendant made no effort to seek to respond to the requests for

'While Defendant did produce a box of records, only a portion of the documents produced were responsive to Plaintiffs discovery. Plaintiff believes that the Defendant has other records which are responsive to Plaintiffs discovery requests, and which can be accessed without undue burden. However, as described below, while Plaintiff proposed that the parties engage in informal discussions with government agency staff for purposes of identifying such additional records, Defendant declined to have such discussions.

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admission in a manner that would result in an admission of some part of the request or a clarification of its understanding of the terms in a manner that would serve to narrow any factual issue.

Defendant's other objections are similar in approach. For example, Defendant objected to many discovery requests asserting that the information sought was not relevant - despite this Court' opinion and order of July 21,2006 which specifically considered the discovery being requested and found it to be relevant to determining whether the United States through "the responsible agencies . . . understood that they were required by statutes or regulations at issue to pay at least some money to federally-recognized tribes." Opinion at 6. As this Court stated, focusing in particular on Tribal Priority Allocations (TPA) administered by the Bureau of Indian Affairs - discovery on these issues was "strongly 'relevant"' to Plaintiffs claims. Id.

By letter dated November 13,2006, Plaintiff advised Defendant of its views on Defendant's objections. Exhibit 2. In that letter and by a telephone conference on November 15, Plaintiff proposed to Defendant that the parties undertake to try and resolve those discovery disputes informally. Specifically Plaintiff proposed that the parties focus on discovery relating to only two of the programs that serve Indian tribes - (1) Tribal Priority Allocations (TPA) administered by the Bureau of Indian Affairs and (2) funding provided through the Indian Health Service (IHS) - and defer discovery relating to other federal programs. Plaintiff also proposed that the Plaintiffs attorneys meet with the Government's attorneys and officials from the BIA and IHS familiar with these programs. This discussion was proposed by plaintiff for two

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reasons. First, plaintiff wanted to clarify any questions or confusion defendant agencies might have about what information and documents would be responsive to plaintiffs discovery requests. Second, plaintiff wanted to explore whether federal employees or officials could stipulate to some basic facts relevant to plaintiffs claims and to the governments pending dismissal motion.

Although counsel for Defendant, on November 15 and in the Parties' Joint Report of November 20, expressed a willingness to explore this proposal and an intent to confer with her client, Plaintiff heard nothing substantive from Defendant for another month. On December 15, Plaintiff sent a letter to counsel for Defendant asking about the status of Defendant's consideration of the matter. Exhibit 3. On December 19, Defendant responded by letter stating that the Defendant no longer believed that meetings with agency officials "would be productive." Exhibit 4. Instead, Defendant announced its intent to determine unilaterally what additional information about TPA and IHS funding would be provided to Plaintiff Id. By letters dated December 20 and December 28 Defendant sent to Plaintiff some additional documents regarding TPA - all of which Plaintiff had already obtained through its own research efforts which Plaintiff initiated after receiving Defendant's numerous objections to Plaintiffs discovery. On Friday evening, January 5,2007, Defendant delivered to Plaintiff: 1) supplemental responses to Plaintiffs discovery requests relating to TPA and IHS funding which largely reiterate Defendant's objections to those discovery requests; and 2) cd-roms which Defendant states contain additional documents regarding TPA, but of most of which Plaintiff has not been able to review because of the format in which the documents were recorded. Counsel are now working

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to try and resolve that data problem.

Given Defendant's unwillingness to meet and confer about the discovery disputes, Plaintiff believes that further informal efforts to resolve those disputes will not be productive.

Plaintiff further believes that Defendant's objections to Plaintiffs discovery requests are without merit and contrary to both the text and intent of the rules governing discovery, and this Court's discovery Order. Without waiving Plaintiffs objections, and in the interests of seeking to advance resolution of some of the issues in this case, Plaintiff is willing to respond to the Government's motion to dismiss regarding TPA, relying on its own submissions and the limited information the government has grudgingly produced in discovery to date. Accordingly, Plaintiff proposes that the Court set a briefing schedule to address the Government's motion to dismiss as it relates only to TPA, and defer briefing on the other programs covered by the Government's motion. Plaintiff recommends that Plaintiffs response to the Defendant's motion to dismiss on claims relating to TPA be due within thirty days of the Court's order, with Defendant's reply due fourteen days thereafter.

Plaintiff also intends to file a motion to compel discovery, but would urge the Court to defer proceedings on that motion. A motion to compel would further serve to preserve Plaintiffs right to recover costs and fees under RUSCFC 37(c)(2) to the extent Defendant refused to admit facts which Plaintiff ultimately proves. Plaintiff proposes to file its motion to compel within sixty days from the date of the Court's order.

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Defendant's Position This Court authorized Plaintiff to take limited discovery. Defendant United States has at all times carried out its responsibility to respond to Plaintiffs discovery requests in good faith. Plaintiff now unjustifiably belittles the United States' efforts, and Plaintiffs proposal for going forward would only further delay ultimate resolution of this case.

This Court allowed Plaintiff to take limited discovery on certain programs that Plaintiff alleges are money-mandating. In response to Plaintiffs request for discovery, the United States answered Plaintiffs requests to the best of its ability and provided as much specific, relevant information as it could in light of the confusing nature of Plaintiffs requests. See, e.g., Exh. 1 (providing over 48 pages of information as well as numerous documents) at 9 (noting that "Commodity Food Program" Plaintiffs referred to does not exist, but interpreting the request to pertain to "Food Distribution Program on Indian Reservations" and answering on that basis).

While the United States preserved its objections to certain aspects of Plaintiffs request, the United States also answered the discovery requests to the best of its ability, in spite of its objections. See, e.g., Exh. 1 at 18-2 1 (providing Plaintiff with published lists despite objections that Plaintiff misconstrued lists), 26-27 (providing documents despite objections), 32-36 (same). Nowhere in the United States' responses did the government refuse to provide information because of its objections to the request, except where a greater effort would require significant time and resources, making the request unduly burdensome. See, e.g., Exh. 1 at 14 (answering request for admission despite objections); 20 (providing lists despite objection); 26 (producing

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Department of Health and Human Services' reports to Congress that describe how Department awarded funds to tribes, despite objections).

In some cases, Defendant simply did not have information sufficient to answer Plaintiffs request for admission. In these cases, Defendant explained that it made a reasonable inquiry and the information known or readily obtainable was not sufficient to allow Defendant to admit or deny the request. In response to further inquiry from Plaintiff, Defendant supplemented its response (in the case of IHS) to describe more thoroughly Defendant's inquiry, or located and provided additional documentation (in the case of the BIA).

After the United States provided its initial objections and responses, it twice supplemented its responses and has provided a number of additional documents to Plaintiff. After the United States' initial responses, Plaintiff narrowed its discovery requests to focus on funding provided by (1) the BIA through the TPA program and (2) the IHS. After this narrowing and pursuant to communications with Plaintiff, the United States provided additional documents and supplemented its responses. In particular, Plaintiffs communication about the TPA program clarified certain issues for the BIA and the BIA therefore was better able to provide a response to Plaintiffs request.

In terms of Plaintiffs request for a meeting, the United States explored this possibility with the two agencies Plaintiff requested (the BIA and the IHS) and the agencies determined such meetings would not be productive. These agencies produced all information they had available

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and explained why, particularly in the case of IHS, the documents Plaintiff requested do not exist or would take significant time and energy to compile and be an undue burden on the agency. In addition, the agencies perceived Plaintiffs attempts to force meetings between Plaintiff and agency officials as being beyond the scope of the limited discovery the Court allowed.

Notably, while Plaintiff has stated its belief that additional responsive documents exist, Plaintiff has not named or described such documents or otherwise made it possible for the United States to address Plaintiffs statement with any specificity.

The United States' position is that Plaintiffs proposal that it respond to the United States' motion to dismiss based solely on the TPA program would delay further resolution of this case. Plaintiffs complaint raises claims based on at least fourteen programs. See PI.S Report on

Discovery at 7. Plaintiff sought, and this Court allowed, Plaintiff to take discovery based upon
some, but not all, of the programs alleged in Plaintiffs complaint. In the course of the discovery proceedings, Plaintiff informed Defendant that it wished to focus on discovery related to the TPA program and the IHS. Now Plaintiff proposes to go forward with briefing on only the TPA program.

The United States moved to dismiss all of Plaintiffs claims. It is the United States' position that this Court can resolve all of Plaintiffs claims at this point, without any further

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dis~overy.~ Plaintiffs approach leaves a wide variety of issues unresolved, with no plan for their resolution. Notably, they do not state that if the United States prevails on the motion to dismiss with regard to the TPA program, Plaintiff will dismiss the rest of its case. Accordingly, resolution of the motion to dismiss based solely on TPA may have absolutely no effect on the rest of the case.

Further, Plaintiff did not seek discovery with regard to some programs (for example, the Housing Improvement Act and the Block Grant programs), and presumably should be able to respond to the motion to dismiss on those programs. Likewise, Plaintiff should be able to respond to the motion to dismiss on the programs it informed Defendant it would not focus on in the course of discovery. This is especially true in light of the Court's determination on discovery, which, as Plaintiff notes, focused strongly on Plaintiffs TPA claim. Plaintiff now apparently believes it has information sufficient to move forward on the TPA claim. Because the Court granted Plaintiff limited discovery with an emphasis on the TPA program, the case would be best resolved by addressing all issues now instead of by piecemealing the United States' motion to dismiss.

Allowing Plaintiff to break apart its case and proceed on a piecemeal basis in response to the United States' motion to dismiss significantly disadvantages the United States because 2Asjust one example, no further discovery should be permitted on the Indian Health Service programs because the statutes under which the IHS distributes its funding -the Snyder Act, the Indian Health Care Improvement Act, and the Indian Self-Determination Act -have already been held not to be money-mandating. See Lincoln v. Vigil, 508 U.S. 182, 185, 192 (1993); Samish Indian Nation v. United States, 41 9 F.3d 1355, 1364 (2005).

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Plaintiff would be able to tailor each portion of its case to the Court's previous rulings. Further, because (as demonstrated in the United States' motion to dismiss) the legal issues with regard to all of Plaintiffs claims overlap to a great extent, Plaintiffs piecemealing suggestion would result in significantly more effort and expense by both the parties and the Court. See, e.g., Marriott
PLP Corp. v. Tuschman, 904 F.Supp. 461,468 n7 (D. Md. 1995) (noting "the perils of deciding

motions to dismiss piecemeal").

Accordingly, having complied with Plaintiffs discovery requests to the best of its ability, the United States requests that the Court order Plaintiff to respond to the United States' motion to dismiss the case.

Dated: January 8,2007 Respectfully submitted,

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Craig borsay, ~ s q . Attorney at Law flflflc b /UK 1 S.W. Columbia, Suite 440 Portland, Oregon 97258 Telephone: (503) 790-9060 Facsimile: (503) 790-9068

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Devon Lehman McCune, b United States Department of J stice Natural Resources Section b,I & L, c 1961 Stout Street, gthFloor Denver CO 80294 Telephone: (303) 844-1487 Facsimile: (303) 844-1350

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Counsel of Record for Plaintiff Samish Indian Nation

Counsel of Record for Defendant

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Of Counsel to the Samish Indian Nation:
William R. Perry, Esq. Anne D. Noto, Esq. Sonosky, Chambers, Sachse, Endreson & Perry, LLP 1425 K Street, N.W. Suite 600 Washington, D.C. 20005 Telephone: (202) 682-0240 Facsimile: (202) 682-0249