Chapter v. Jewell
| Decision Date | 02 March 2016 |
| Docket Number | No. 90 CV 957 JAP/KBM,90 CV 957 JAP/KBM |
| Parties | Ramah Navajo Chapter, Oglala Sioux Tribe, and Pueblo of Zuni, for themselves and on behalf of a class of persons similarly situated, Plaintiffs, v. Sally Jewell, Secretary of Interior, in her official capacity, Lawrence S. Roberts, Acting Assistant Secretary, Indian Affairs, in his official capacity, and United States of America, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Michael P. Gross, M.P. Gross Law Firm, P.C., C. Bryant Rogers, Vanamberg, Rogers, Yepa, Abeita & Gomez, LLP, Santa Fe, NM, for Plaintiffs.
James D. Todd, Jr., USDOJ, Washington, DC, Jan Elizabeth Mitchell, United States Attorneys Office, Albuquerque, NM, for Defendants.
Donald J. Simon, Sonosky Chambers Sachse Endreson & Perry, LLP, Washington, DC, Lia Carpeneti Sonosky, Lloyd B Miller, Chambers, Sachse, Miller & Munson, LLP, Anchorage, AK, for Intervenor, Pueblo of Zuni.
On September 30, 2015, the Court granted preliminary approval of the final settlement agreement (FSA) (Doc. No. 1306–1) in this class action and ordered that notice be sent to all class members. See ORDER GRANTING PRELIMINARY APPROVAL OF FINAL SETTLEMENT AGREEMENT; DIRECTING NOTICE TO BE SENT TO THE CLASS; AND SETTING FAIRNESS HEARING (Doc. No. 1314). The Court has ruled on the sole objection to the FSA in which the United South Eastern Tribes, Inc. (USET) argued that it was improperly excluded from the Class members listed in Appendix 2 of the FSA. See NOTICE OF INTENTION TO APPEAR AND OBJECT TO FINAL SETTLEMENT AGREEMENT (Doc. No. 1324) (Objection); JOINT MEMORANDUM IN RESPONSE TO OBJECTION BY UNITED SOUTH AND EASTERN TRIBES, INC. (Doc. No. 1328).1 The Court sustained in part and overruled in part the Objection. See ORDER SUSTAINING IN PART THE OBJECTION BY UNITED SOUTH AND EASTERN TRIBES, INC. AND DIRECTING NOTICE TO BE SENT TO 26 NEWLY–IDENTIFIED CLASS MEMBERS (Doc. No. 1329).
On January 8, 2016, the parties filed their JOINT MOTION FOR FINAL APPROVAL OF FINAL SETTLEMENT AGREEMENT (Doc. No. 1334) (Motion for Final Approval). The same day, Class Counsel filed their CONSENT MOTION FOR FINAL APPROVAL OF CLASS COUNSEL'S APPLICATION FOR AN AWARD OF FEES AND COSTS, WITH SUPPLEMENTAL AUTHORITIES ADDRESSING THE ABSENCE OF OBJECTIONS (Doc. No. 1335) (Consent Motion for Approval of Attorneys' Fees). Class Counsel had filed their CLASS COUNSEL APPLICATION FOR AWARD OF ATTORNEY FEES AND COSTS (Doc. No. 1313) (Application) on September 29, 2015.
On January 20, 2016, the Court held a fairness hearing on the Motion for Final Approval and the Consent Motion for Approval of Attorneys' Fees. Present at the hearing were Class Counsel: Michael P. Gross, C. Bryant Rogers, and Lloyd B. Miller and Counsel for the Defendants (the Government): James Todd, Ryan Parker, and Eric Womack. In addition, other attorneys appeared on behalf of the Class: Don Simon, Lia Carpeneti, Tom Bird, Paul Frye, and Dan MacMeekin. Dignitaries from the Class Representatives and other dignitaries who attended the fairness hearing included: former Navajo Nation President Peterson Zah, Ramah Navajo Chapter President David Jose, Oglala Sioux Tribe President John Yellowbird Steele, and Pueblo of Zuni Governor Val Panteah and Lt. Governor Birdina Sanchez.
The Court considered the FSA, the evidence, the arguments of the parties, including affidavits of Class Counsel and the Class Representatives. In addition, the Court heard arguments by Class Counsel, by other attorneys representing the Class, and by Counsel for the Government. During the hearing, the Court concluded that the FSA is in the best interest of the Class and should be approved.
As to the Consent Motion for Approval of Attorneys' Fees, during the January 20, 2016 hearing the Court asked whether the notice to the Class members clearly stated how the New Mexico Gross Receipts Taxes (NMGRT) on the attorneys' fees would be paid. Class Counsel, Class Representatives, and Counsel for the Government conferred and reached an agreement clarifying responsibility for the payment of NMGRT on attorneys' fees and said they would submit a written stipulation memorializing their agreement. In early February, 2016, the Court received the JOINT STIPULATION REGARDING REIMBURSEMENT OF GROSS RECEIPTS TAX ON ATTORNEYS' FEE AWARD (Doc. No. 1344) (Joint Stipulation). The Court found that the Joint Stipulation clarified the obligations regarding payment of the New Mexico Gross Receipts Taxes. On February 19, 2016, the Court entered an Order (Doc. No. 1345) adopting the Joint Stipulation as a supplement to the FSA and approving the Joint Stipulation.
The Application describes the work of Class Counsel, and by other attorneys in their law firms and by attorneys specializing in Indian Law and in Supreme Court litigation. Class Counsel are (1) Michael P. Gross of the M.P. Gross Law Firm, P.C. in Santa Fe, New Mexico; (2) C. Bryant Rogers of VanAmburg, Rogers, Yepa, Abeita, Gomez & Works, LLP in Santa Fe, New Mexico; and (3) Lloyd B. Miller of Sonosky, Chambers, Sachse, Miller & Munson, LLP in Anchorage, Alaska. At the fairness hearing, Attorney Spencer Reid of Keleher & McLeod, P.A. in Albuquerque, New Mexico represented Class Counsel in connection with their Application.
No objections to the Application were filed. The Government, in its role as trustee for all tribes and tribal organizations, supports the requested fee and agrees that an award of 8.5% of the amount paid from the Judgment Fund as defined in the FSA is fair and reasonable under the totality of the circumstances. See FSA § IX.A.
The Court concludes that the requested attorneys' fee of 8.5% of the amount paid from the Judgment Fund as defined in the FSA is fair and reasonable. Hence, the Court will grant the Consent Motion for Approval of Attorneys' Fees and will approve the Application.
In accordance with Rules 52(a) and 54(d), the Court enters these FINDINGS OF FACT AND CONCLUSIONS OF LAW APPROVING THE FINAL SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND COSTS. Fed.R.Civ.P. 52(a)
, 54(d)(2).
Prior to the ISDA, the federal government directly provided educational and governmental services to the hundreds of federally recognized Indian tribes in the United States. In 1975, Congress, recognizing that the system impeded the progress of Indian people, enacted the ISDA, which is codified in 25 U.S.C. §§ 450 et seq.
Ramah Navajo Chapter v. Salazar, 644 F.3d 1054, 1057 (10th Cir.2011), aff'd, ––– U.S. ––––, 132 S.Ct. 2181, 183 L.Ed.2d 186 (2012). The ISDA authorizes Indian tribes to enter into self-determination contracts with the Secretary of the Department of the Interior (DOI), the Bureau of Indian Affairs (BIA), and other agencies to directly provide these services and to “assure maximum participation by tribes in the planning and administration of federal services, programs, and activities for Indian communities.” Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1456–57 (10th Cir.1997)
.
Under the amended ISDA, the contracting governmental agency is required to fund the programs by paying the amount the agency “would have otherwise provided for the operation of the programs or portions thereof for the period covered by any contract.” Id.
(citing 25 U.S.C. § 450j–1(a)(1) ). Congress soon realized that funding an amount that the Secretary would have spent operating a given program did not cover many federally mandated costs the tribes incurred. Ramah Navajo Chapter, 644 F.3d at 1058 (citing S.Rep. No. 100–274, at 8 (1987) reprinted in 1988 U.S.C.C.A.N. at 2628). Thus, in 1988, Congress amended the ISDA to require full funding of contract support costs (CSC).
In the ISDA, CSC are defined as “an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management....” 25 U.S.C. § 450j–1(a)(2)
. Specifically, the BIA must reimburse CSC of each contracting tribal organization “for reasonable and allowable costs of—(i) direct program expenses for the operation of the Federal program that is the subject of the contract, and (ii) any additional administrative or other expense related to the overhead incurred by the tribal contractor in connection with the operation of the Federal program, function, service, or activity pursuant to the contract[.]” 25 U.S.C. § 450j–1(a)(3)(A)(i) and (ii).
Basically, CSC are “administrative expenses.” Cherokee v. Leavitt, 543 U.S. 631, 634–35, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005)
. “Indirect” contract support costs (indirect CSC) are administrative costs that are shared among various contracted tribal programs and other tribal programs, such as legal, personnel, accounting, and financial support. “Direct” contract support costs (direct CSC or DCSC) are specific administrative and other costs that are associated with a particular BIA program under contract, and are not part of the undifferentiated indirect cost pool supporting all tribal activities. DCSC include direct costs, such as the cost of workers' compensation insurance, which are not included in the amount that the BIA would have spent to operate a particular program under contract. See generally, Geoffrey D. Strommer & Stephen D. Osborne, The History, Status, and Future of Tribal Self–Governance Under the Indian Self–Determination and Education Assistance Act, 39 AM. INDIAN L. REV. 1, 49–52 (2014–15) (Strommer & Osborne) (describing CSC and effect of payment shortfalls on tribes with ISDA contracts). The ISDA also authorized tribal contractors to sue for the award of ISDA contracts in conformity with the statute, for money damages due to violations of the statute, and for breach of contract. 25 U.S.C. § 450m–1.
To continue reading
Request your trial
- Civility Experts Worldwide v. Molly Manners, LLC
-
Health Republic Ins. Co. v. United States
... ... result, and capable of manipulation," and it creates ... incentives for inefficiency. MCL § 14.121; see Ramah ... Navajo Chapter v. Jewell, 167 F.Supp.3d 1217, 1242 ... (D.N.M. 2016) (The lodestar, "even when used as a cross ... check ... has the effect of ... ...
-
McClendon v. City of Albuquerque
...other members of the class and subclass reacted favorably to the Settlement Agreement. (Doc. No. 1319); see Ramah Navajo Chapter v. Jewel, 167 F. Supp. 3d 1217, 1239 (D.N.M. 2016) (noting that the absence of objections signals approval of a settlement agreement). On July 26, 2017, Troy Shaw......