Menominee Indian Tribe of Wis. v. United States

• Decision Date: 02 September 2014
• Docket Number: No. 12–5217.,12–5217.
• Citation: 764 F.3d 51
• Parties: MENOMINEE INDIAN TRIBE OF WISCONSIN, Appellant v. UNITED STATES of America, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

764 F.3d 51

MENOMINEE INDIAN TRIBE OF WISCONSIN, Appellant

v.UNITED STATES of America, et al., Appellees.

No. 12–5217.

United States Court of Appeals, District of Columbia Circuit.

Argued March 13, 2014.

Decided Sept. 2, 2014.

Geoffrey D. Strommer argued the cause for appellant. With him on the briefs was Marsha K. Schmidt. F. Michael Willis entered an appearance.

Donald E. Kinner, Assistant Director, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Stuart F. Delery, Assistant Attorney General. Jeanne E. Davidson, Attorney, entered an appearance.

Before GARLAND, Chief Judge, and TATEL and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Federal law requires that a claim for breach of a self determination contract between an Indian Tribe and a federal agency be filed with a contracting officer at the agency within six years of the claim's accrual. The Menominee Indian Tribe of Wisconsin filed claims in 2005 against the Department of Health and Human Services for unpaid contract support costs that accrued from 1996 through 1998—more than six years earlier. This case requires us to determine whether, pursuant to the doctrine of equitable tolling, the Tribe may sue even though the statute of limitations has lapsed. Equitable tolling is only available to a party who can show, inter alia, that “ ‘some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). The Menominee Tribe identifies two circumstances that it suggests are “extraordinary” under Holland. First, the Tribe contends that it did not file timely claims because it believed that, as a member of a federal class action filed by another tribe, it was entitled to a different form of tolling—class-action tolling—that it believed afforded it two additional years beyond the statutory limitations period. Second, the Menominee Tribe contends that adverse legal precedent (which has since been reversed) led it to believe during the limitations period that its claims had no hope of success, so the Tribe refrained from the apparently futile act of filing them. We conclude that the legal misunderstandings and tactical mistakes the Tribe has identified here, however, do not amount to “extraordinary circumstance[s]” justifying equitable tolling. The Menominee Tribe's claims are thus barred by the statute of limitations.

I.

Between 1995 and 2004, the Menominee Indian Tribe of Wisconsin (“the Menominee Tribe” or “the Tribe”) provided healthcare services to its members pursuant to a self determination contract with the Secretary of Health and Human Services (HHS). Menominee Indian Tribe of Wis. v. United States (Menominee I), 539 F.Supp.2d 152, 153 (D.D.C.2008). The Indian Self Determination and Education Assistance Act, 25 U.S.C. § 450 et seq. (2012) (“ISDA” or the “Act”), authorizes such contracts to encourage tribal participation in, and management of, programs that would otherwise be administered on Indian Tribes' behalf by the Department of the Interior and HHS. See id. §§ 450a, 450f. The Act requires the Secretary of the Interior and the Secretary of HHS to turn over direct operation of certain federal Indian programs to any Indian tribe that wishes to run those programs itself. See id. § 450f(a); see also id. § 450a(b). A “self determination contract” is the vehicle for transferring those programs. Id. § 450b(j).

Pursuant to a self determination contract, the government agrees to pay a participating tribe what it would have cost the federal agency to provide the services had the agency implemented the program itself. See id. § 450j–1(a)(1). Since 1988, the Act has also required that tribal contractors be reimbursed for “contract support costs”—additional reasonable overhead and other specified indirect costs that tribes incur. Id. § 450j–1(a)(2), (3); see generally ISDA Amendments of 1988, Pub.L. No. 100–472, § 201, 102 Stat. 2285 (“1988 Amendments”); S.Rep. No. 100–274, at 8–13, 2627–32 (1987). Tribes and the government negotiate the services and the attendant contract support costs through annual funding agreements, which become part of their self determination contracts. See25 U.S.C. § 450l (c).

Parallel but mutually exclusive paths for resolving disputes relating to self determination contracts are set forth in overlapping provisions of the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109, ¹ and the ISDA, 25 U.S.C. § 450m–1(a), (d). Pursuant to the CDA, a contractor, such as an Indian tribe seeking underpaid contract support costs, must make a claim in writing to a contracting officer at the relevant agency before it may sue in court. See41 U.S.C. § 7103(a). The demand need not be detailed, and may consist of a short written statement outlining the basis of the claim, estimating damages, and requesting a final decision. See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed.Cir.2010); see also Arctic Slope Native Ass'n v. Sebelius (Arctic Slope I), 583 F.3d 785, 797 (Fed.Cir.2009) (“[S]ubmissions to the contracting officer need not be elaborate.”). If the contracting officer denies the claim, the tribe may then follow one of two paths: (1) under the CDA, the tribe may appeal administratively within the agency or directly to the Court of Federal Claims, and then to the Court of Appeals for the Federal Circuit, 41 U.S.C. § 7104(a), (b)(1); or (2) under the ISDA, file a claim in any federal district court with jurisdiction over the relevant agency, 25 U.S.C. § 450m–1(a). See Menominee Indian Tribe of Wisconsin v. United States (Menominee II), 614 F.3d 519, 521–22 (D.C.Cir.2010).² Since 1994, the CDA has also required that all claims related to government contracts be submitted to a contracting officer within six years of the accrual of the claim. Arctic Slope Native Ass'n, Ltd. v. Sebelius (Arctic Slope II), 699 F.3d 1289, 1295 (Fed.Cir.2012); Menominee II, 614 F.3d at 521.

The ISDA requires self determination contracts to contain what has proven to be a contentious proviso: that full payment of contract support costs is “subject to the availability of appropriations.” 25 U.S.C. § 450j–1(b); see also Salazar v. Ramah Navajo Chapter, ––– U.S. ––––, 132 S.Ct. 2181, 2187, 183 L.Ed.2d 186 (2012). Tribes and federal agencies have disputed the meaning of that phrase for more than 20 years. Throughout the 1990s, the Departments of Interior and HHS, the two principal agencies that enter self determination contracts with Tribes that include contract support costs, read that phrase as authorizing them to pay less than the full amount of a tribe's contract support costs even when Congress had appropriated enough unrestricted funds to the agencies to fully cover those costs. See Salazar, 132 S.Ct. at 2187–89; U.S. Gov't Accountability Office, GAO/RCED–99–150, Indian Self–Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3–4, 32–33 (1999). As a result of pervasive reimbursement shortfalls, tribes cut ISDA services to tribal members, diverted resources from non-ISDA programs, and even forwent certain contract opportunities, hindering their progress toward self determination. U.S. Gov't Accountability Office, supra, at 3–4.

Tribes also began to pursue individual and collective legal claims against the federal government seeking recovery of unpaid contract support costs. See, e.g., Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005); Shoshone–Bannock Tribes of Fort Hall Reservation v. Sec'y, Dep't of Health & Human Servs., 279 F.3d 660 (9th Cir.2002); Babbitt v. Oglala Sioux Tribal Pub. Safety Dep't, 194 F.3d 1374 (Fed.Cir.1999); Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir.1997); Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338 (D.C.Cir.1996). The Menominee Tribe, however, neither filed claims with the agencies nor filed suit. It instead relied on two nationwide class actions brought by other tribes that it thought might vindicate its rights, and did not pursue its own claims more aggressively because the HHS's Indian Health Service's (IHS) consistent pattern of refusals to pay such claims led the Tribe to conclude that any such claims would be futile.

The first of two tribal class actions brought the Menominee Tribe some relief on claims that are distinct from but legally analogous to the claims at issue here, and made the Tribe somewhat complacent about these claims. That case, brought by the Ramah Navajo Chapter, sought reimbursement of contract support costs from the Secretary of the Interior and its Bureau of Indian Affairs (BIA). See Ramah Navajo Chapter, 112 F.3d at 1458–59, 1461. The district court in Ramah certified a nationwide class of all tribal contractors, even those who had not exhausted their administrative remedies under the CDA, on the ground that the case challenged the legality of the BIA's system-wide policies and practices, not the adequacy of its performance under specific contracts. Appellant Br. add. at 5a–6a ( Ramah Navajo Chapter v. Lujan, No. CIV 90–0957 LH/RWM, Order (D.N.M. October 1, 1993)). The Menominee Tribe was a member of that class, and when the case settled, the Tribe received nearly $800,000 in compensation for BIA underpayments and equitable relief related to future BIA contract support cost payments. App. at 55, 63.

The Menominee Tribe did not fare as well in the second class action, which sought recovery from the IHS of some of the costs that are at issue here. In 1999, the Cherokee Nation sued the Secretary of HHS on behalf of all tribal contractors, claiming that IHS had underfunded tribes' contract support costs from 1988 to the present. The suit defined the proposed class in a manner that clearly included the Menominee Tribe. See ...