White Mountain Apache Tribe v. United States
| Decision Date | 03 December 2018 |
| Docket Number | No. 17-359 L,17-359 L |
| Parties | WHITE MOUNTAIN APACHE TRIBE, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
On March 15, 2017, Plaintiff, White Mountain Apache Tribe ("Tribe"), filed a Complaint alleging that the Government breached fiduciary duties owed to the Tribe through the mismanagement of trust funds, non-monetary trust assets, and dam maintenance and repair obligations. On July 14, 2017, the Government filed a partial Motion to Dismiss, alleging that portions of Count I - Mismanagement of Trust Funds, and portions of Count II - Mismanagement of Non-Monetary Trust Assets, were time barred, and that Count III - Mismanagement of Dam Maintenance and Repair, failed to state a claim upon which relief could be granted.
On January 5, 2018, this Court issued an Opinion and Order granting-in-part and denying-in-part the Defendant's Motion to Dismiss. ECF No. 22. As relevant here, the Court denied the Government's Motion to Dismiss for failure to state a claim relating to Count III, holding that the Indian Dam Safety Act of 1994 ("IDSA"), "created mandatory duties on the part of the Government through the Secretary of the Interior regarding maintenance and repair of the dams" on Plaintiff's Reservation. In addition, the Court denied the Government's Motion to Dismiss Count I, granted-in-part the portion concerning forestry mismanagement and grazing of Count II, and denied-in-part the Motion as to the remaining portions of Count II.
On February 2, 2018, Plaintiff filed a Motion for Reconsideration concerning the Court's partial dismissal of Count II. On June 19, 2018, the Court granted-in-part Plaintiff's Motion for Reconsideration concerning dismissal of the forestry mismanagement portions of Count II, and denied-in-part reconsideration relating to other aspects of Count II.
On October 4, 2018, nine months after the Court denied the Government's Motion to Dismiss for failure to state a claim relating to Count III,1 the Government filed a Motion to Certify Interlocutory Appeal, seeking certification of two issues concerning Count III raised in the Court's January 5, 2018 Order:
United States' Motion to Certify Interlocutory Appeal, ECF No. 43, at 1 (Oct. 4, 2018) ("Def. Mot.").2 On October 30, 2018, Plaintiff filed a Response. Pl.'s Resp., ECF No. 46. On November 20, 2018, the Government Replied. Def.'s Reply, ECF No. 47. This matter is now fully briefed and ripe for decision.
For the reasons set forth below, the Court DENIES the Government's Motion to Certify Interlocutory Appeal.
Section 1292(d)(2) of Title 28 governs interlocutory appeal and provides, in relevant part, that:
[W]hen any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order.
The decision whether to permit an interlocutory appeal is committed to the "sound discretion" of the judge who entered the order. See Starr Int'l Co. v. United States, 112 Fed. Cl. 601, 603 (2013) (quoting Petro-Hunt, LLC v. United States, 91 Fed. Cl. 447, 452 (2010)). Courts have long understood that "[i]nterlocutory appeals are reserved for exceptional or rare cases and should be authorized only with great care as to avoid unnecessary and piecemeal litigation." Id. (quoting Jaynes v. United States, 69 Fed. Cl. 450, 460 (2006) (internal citations omitted)); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) ().3
Accordingly, to succeed in its motion, the Government must convince the Court that: (1) there is a controlling question of law; (2) there is a substantial ground for a difference of opinion on the controlling question of law; and (3) termination of the litigation might be materially advanced by an immediate appeal. 28 U.S.C. § 1292(d)(2).
Under section 1292, "[q]uestions are 'controlling' when they 'materially affect issues remaining to be decided in the trial court.'" Marriot Int'l Resorts, L.P. v. United States, 63 Fed. Cl. 144, 145 (2004) (citation omitted); Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Associates, Inc., 86 F.3d 656, 659 (7th Cir. 1996) ().
The Government believes that the Court's holding that "through the IDSA Congress created mandatory duties on the part of the Government through the Secretary of the Interior regarding maintenance and repair of the dams on the Reservations," is controlling because "[d]ismissal of the dam safety claim would fully and finally resolve one of Plaintiff's claims, which plainly would affect the course of the litigation and accelerate its disposition." Def.'s Mot. at 5.
Broadly speaking, as the Court of Appeals for the Federal Circuit might dismiss Count III, the Government is correct. But, looking at the questions specifically proffered by the Government for interlocutory appeal, this Court believes that the Government mischaracterizes the Court's holding in its January 5, 2018 Order. In that order, the Court merely decided that the Plaintiff had adequately pled the dam maintenance claim so as to survive a motion to dismiss. The Court did not, as the Government contends, hold that "a breach of any mandatory duty imposed by the IDSA to repair all damslocated on Indian reservations is compensable through money damages," and certainly did not hold that IDSA "creates a mandatory duty to repair all dams located on Indian reservations by a date certain." See Def.'s Mot. at 1 (emphasis added).
Despite the deficiency of the questions proffered by the Government, one of the Government's arguments in its supporting brief does seem to have some merit. According to the Government, any mandatory duties imposed by IDSA cannot be fiduciary ones because an award of money damages would enrich the Tribe, but would do nothing to improve the safety of dams on Indian reservations. See Def.'s Mot. at 13-14; Def.'s Reply at 15-19. In other words, should the Plaintiff ultimately prevail, it is highly unlikely that the damage award would be used to conduct repairs on the dams, even if permitted by the Government. But Plaintiff may be able to identify other damages once discovery is complete. In its claim relating to the improper repair of the Davis Dam, for example, Plaintiff alleges other damages, namely, lost tourism revenue, lost income from the sale of hunting and fishing permits, and mitigation costs. Compl. at 18-19.
Furthermore, the mere fact that a damage award may not directly effectuate a statute's purpose does not mean that the statute is not money-mandating. In spent nuclear fuel cases, for example, Congress provided that the United States Government would dispose of radioactive nuclear waste generated by utility companies during the energy production process. See Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10270. Due to the Government's inability to comply with this mandate, utility companies receive periodic damage awards for housing the waste at their facilities. See e.g., Dairyland Power Co-Op. v. United States, 645 F.3d 1363 (Fed. Cir. 2011). Clearly such an award does little, if anything, to compel the Government to effectuate the safe disposal of nuclear waste.
In any event, there is no need to address the Government's concern in this regard further, as the Court's January 5, 2018 Order merely held that the Plaintiff had made a sufficient showing to avoid dismissal for failure to state a claim. This case is still in its infancy and should the Government wish to raise the issue again, the Court would be willing to entertain a dispositive motion on Count III after discovery on that Count is complete.
The second prong of section 1292 requires that there be "substantial grounds for difference of opinion" with respect to the Court's order. See 28 U.S.C. § 1292(d)(2). Courts have found "substantial grounds for difference of opinion" where there are "two different, but plausible, interpretations of a line of cases," "splits among circuit courts, an intracircuit conflict or a conflict between an earlier circuit precedent and a later Supreme Court case, or . . . a substantial difference of opinion among the judges of [the same] court." Klamath Irr. Dist. v. United States, 69 Fed. Cl. 160, 163 (2005) (internal citations omitted). Further, while "issues of first impression may satisfy the 'substantial ground for difference of opinion' criterion . . . [a]n issue of first impression, standing alone, does not establish a substantial ground for difference of opinion." Kislev Partners v. UnitedStates, 84 Fed. Cl. 378, 385 (2008) (quoting American Management Systems, Inc. v. United States, 57 Fed. Cl. 275, 277 (2003)).
Here, the Government believes that this prong is met because: (1) "[w]hether the IDSA establishes money-mandating fiduciary duties is an issue of first...
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