Free Memorandum - District Court of Federal Claims - federal

Case 1:00-cv-00169-ECH

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Filed 03/14/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA,

Electronically Filed: March 14, 2005 No. 00-169 L Judge Emily C. Hewitt

DEFENDANTS' MEMORANDUM IN SUPPORT OF ITS PROPOSED AMENDED SCHEDULING ORDER Defendant submits this memorandum in support of its Proposed Amended Scheduling Order (filed herewith). Despite their efforts to meet, confer, and exchange drafts of the proposed amended scheduling order, Plaintiff and Defendant were unable to agree on a joint revised scheduling proposal. Hence, they are filing separate revised proposals. As explained below, the parties have fundamental differences about the best and most efficient approach for redefining and narrowing Tranche I. Defendant proposes to redefine Tranche I by focusing on all trust fund mismanagement claims associated with the recorded transactions in particular accounts1/ for a narrowly framed time period, i.e., 1984 to 1995. Defendant's approach allows the parties to bring a discrete portion of the case to a final and orderly conclusion, thereby avoiding piece-meal litigation over the same set of facts, legal standards,2/ and documents. It is eminently sensible for the Court and the parties to address, in one tranche, all of Plaintiff's claims and grounds for relief that arise

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Through the Office of Historical Trust Accounting (OHTA) for the Department of the Interior (DOI or Interior), Defendant intends to provide Plaintiff, by Thursday, June 16, 2005, with a statement and database of transactions for specific accounts. This database is essentially a a compilation of transactions extracted from several Interior accounting systems and the Arthur Andersen prepared Reconciliation Project into one database. The database is intended to provide the parties and the Court with a common factual platform from which to litigate, settle, or otherwise resolve Plaintiff's claims regarding those transactions.
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The legal standards applicable to an abbreviated time period are likely to be more common throughout that time period than throughout the entire 1972-1992 period proposed by Plaintiff, because of changes over time in applicable legal standards.

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from a fixed set of transactions in a known and discrete set of accounts, rather than for the Court and the parties to revisit those same transactions multiple times in separate tranches. Through Defendant's approach, the Court will be able to bring closure to the status of those accounts and transactions or the specified time-frame by conducting one trial to resolve all of Plaintiff's grounds for relief arising out of specific transactions in specific accounts. By contrast, because the parties would address the funds mismanagement claims in separate consecutive phases of the case, Plaintiff's approach leaves unresolved, for the foreseeable future, the status of the accounts for those time periods and the continued relevance of the documents associated with those periods. Under its approach, Defendant's proposed time period starts on November 5, 1984, and ends on September 30, 1995. Defendant derived the November 1984 starting date by calculating six years prior to the date of enactment of the Act of Nov. 5, 1990, Pub. L. No. 101-512, Tit. 104 Stat. 1930. The Court of Appeals for the Federal Circuit recently held that this Act and subsequent Interior appropriation acts prevent trust fund claims from accruing until the claimant receives a "meaningful accounting." See Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1348 (Fed. Cir. 2004). Both of the parties in that case have petitioned for certiorari in the Supreme Court. In the event that the Supreme Court grants certiorari and the United States prevails, those of Plaintiff's claims that pre-date November 5, 1984 would likely be significantly narrowed. Defendant based the September 1995 ending date on the requirement under 25 U.S.C. § 4044 (American Indian Trust Fund Management Reform Act or 1994 Trust Reform Act), that the Secretary of the Interior prepared a report for certain tribal trust fund accounts that sets out a "balance reconciled as of September 30, 1995." In Defendant's view, using this statutorily derived ending date minimizes the additional accounting work that the parties must undertake to identify and understand the account transactions (i.e., credit and debit transactions) that Plaintiff

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is challenging as being contrary to law.3/ Also, under Defendant's approach, Plaintiff has to identify its issues and claims with specificity by April 14, 2005. In delineating this deadline, Defendant has retained the concept of--and expanded upon--the Court's requirement in its Order dated July 22, 2004, that Plaintiff state, with particularity and at the earliest opportunity, the issues and claims to be resolved at trial. Defendant's deadline proposal serves several critical functions here: (1) it delineates and establishes the Court's subject matter jurisdiction over this case; (2) it focuses the scope of discovery and the triable issues in the case; and (3) it provides Defendant with a reasonable opportunity to prepare an adequate defense to Plaintiff's specifically stated issues and claims. The Federal Circuit's recent opinion in Fisher v. United States, ____F.3d ____ (Fed. Cir. 2005) (March 7, 2005), makes clear that this Court should not permit Plaintiff to delay or otherwise extend the deadline for articulating its claims and the legal and factual bases for those claims.4/ Rather, the Court should advance that deadline, as Defendant has proposed, as one means of efficiently preparing this case for trial. As the Court can see, Defendant's proposed revised scheduling order provides for the

3/

If the Court deems it appropriate, it can sharpen the focus of the Tranche I litigation further by adopting the 1992 ending date of the Arthur Andersen-prepared reconciliation project (i.e., employ a 1984-1992 time frame). In Fisher, the Federal Circuit overruled Gollehon Farming v. United States, 207 F.3d 1373, 1378-80 (Fed. Cir. 2000), which held that determining whether a source is moneymandating is a two-step process. Under Gollehon, as a first step to establish jurisdiction, a plaintiff only had to make a non-frivolous allegation that the statute was money-mandating. Fisher, slip. op. at 7. As a second step, the case could later be dismissed if the court lacked jurisdiction because the statute on its merits did not provide for a money-mandating remedy. Id. at 8. In Fisher, however, the Federal Circuit stated that the money-mandating issue should be resolved, not in two steps, but rather in a single step at the outset of the case. The Court held that, when a complaint is filed under the Tucker Act, the "trial court at the outset shall determine, either in response to a motion by the Government or sua sponte . . . whether the Constitutional provision, statute, or regulation is one that is money-mandating." Id. at 9. The Court held that a trial court's determination at the outset that a source is money-mandating will control for whether a court has subject matter jurisdiction and subsequently for whether the statute is money-mandating based on the source's merits. Id. 3
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completion of fact discovery, the briefing of dispositive motions, and the conclusion of expert discovery, in 2006. While Plaintiff's scheduling proposal offers earlier deadlines for the conclusion of discovery and the initiation of dispositive motions practice for Tranche I, Plaintiff's proposal is ultimately near-sighted because it effectively splits Plaintiff's claims between two or more tranches; complicates the entry of a final judgment for Tranche I; permits Plaintiff to litigate the same account transactions, based on separate grounds for relief, in subsequent tranches; and results in an extended schedule for the resolution, in toto, of Plaintiff's funds mismanagement claims. Respectfully submitted, THOMAS L. SANSONETTI Assistant Attorney General By: s/ Brett D. Burton BRETT D. BURTON United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Fax: (202) 353-2021 Attorney for Defendant OF COUNSEL: Martin J. LaLonde John H. Martin United States Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Stephen Simpson Attorney Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior Jason R. Baron Director of Litigation Office of General Counsel National Archives and Records Administration 8601 Adelphi Road 4

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MS 6456 Washington, D. C. 20240 Telephone: (202) 219-1659 Fax: (202) 208-3490 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Services U.S. Department of the Treasury 401 14th Street, S.W. Room 552A Washington, D.C. 20227 Telephone: (202) 874-2567 Fax: (202) 874-6627

Room 3110, NGC College Park, Maryland 20740-6001 Telephone: (301) 837-1499 Fax: (301) 837-0293

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