[00:00:05] Speaker 03:
Our next case is Lummi Tribe of the Lummi Reservation, Washington versus the United States, case number 2018-1720.

[00:00:40] Speaker 03:
Mr. Rasmussen, you may proceed.

[00:00:41] Speaker 03:
You have five minutes of rebuttal time reserved.

[00:00:49] Speaker ?:
Yes, sir.

[00:00:49] Speaker 02:
Thank you.

[00:00:50] Speaker 02:
May I please support?

[00:00:51] Speaker 02:
My name's Jeff Rasmussen.

[00:00:53] Speaker 02:
I am the attorney for the Lummi tribe, Fort Berthold tribe, or Fort Berthold Housing Authority, and Hopi Housing Authority.

[00:01:03] Speaker 02:
In this case, ultimately, I think that the simplest remedy

[00:01:09] Speaker 02:
And one that would be sufficient would be for this court to remand this case to the Court of Federal Claims for two decisions.

[00:01:20] Speaker 02:
The one being, are the tribe's contract breach of fiduciary duty breach of trust claims viable?

[00:01:28] Speaker 02:
And two, for any claims that are outside the scope of the Court of Federal Claims jurisdiction, should those claims be transferred

[00:01:39] Speaker 02:
under 28 USC 1631.

[00:01:42] Speaker 02:
As we discussed in our briefing... Is that an either-or or is that a both proposition?

[00:01:49] Speaker 02:
Both.

[00:01:49] Speaker 02:
Both those things should happen.

[00:01:52] Speaker 01:
If you got your contract and fiduciary claims remanded back to the Court of Federal Claims, what more could possibly be transferred to another court?

[00:02:05] Speaker 02:
No, I think that if we got those claims transferred back to the Court of Federal Claims,

[00:02:09] Speaker 02:
for consideration of whether they should proceed, the United States would be making a motion to dismiss them.

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And this court would then clarify that if you're going to dismiss any claims, then you would have to consider 1631 at that point.

[00:02:24] Speaker 01:
We'd certainly be... You would be arguing that to the Court of Federal Claims, though.

[00:02:27] Speaker 02:
Right.

[00:02:28] Speaker 01:
Yes.

[00:02:28] Speaker 01:
That wouldn't be something for us to decide now on this appeal.

[00:02:33] Speaker 02:
No.

[00:02:34] Speaker 01:
Okay.

[00:02:34] Speaker 01:
Okay.

[00:02:34] Speaker 01:
Yes.

[00:02:37] Speaker 02:
With regard to

[00:02:38] Speaker 03:
As we discuss in our brief... Just to be clear, are you saying that we could not order the Court of Claims to vacate its dismissal order and to make the transfer?

[00:02:48] Speaker 02:
I think you could decide the 1631 issue.

[00:02:53] Speaker 02:
You could vacate and order it to transfer.

[00:02:57] Speaker 02:
As to whether you should, in our brief we discussed two possibilities.

[00:03:03] Speaker 02:
One would be

[00:03:04] Speaker 02:
this court just remanding it back to the court of federal claims to make the 1631 decision.

[00:03:09] Speaker 02:
Somebody has to make it, to make the 1631 decision.

[00:03:13] Speaker 02:
Or alternatively, this court could decide it.

[00:03:15] Speaker 02:
This court often doesn't decide issues in the first instance.

[00:03:19] Speaker 02:
There isn't a lower court decision on this issue of whether the case claim should be transferred.

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And generally, it's a discretionary issue.

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But I think the law is clear enough that this is one that this court, it would be

[00:03:33] Speaker 02:
reasonable for this court to actually make the decision itself, given the facts here.

[00:03:42] Speaker 01:
On the contract claims... Do we have the contracts in the Joint Appendix?

[00:03:48] Speaker 02:
I looked and I didn't see it.

[00:03:51] Speaker 02:
They're not in the Joint Appendix.

[00:03:52] Speaker 02:
They're just one-page documents.

[00:03:53] Speaker 02:
There are a number of them.

[00:03:55] Speaker 02:
There was one each year for each tribe, and they are

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More or less, the United States is agreeing to provide funding.

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The tribe is agreeing to accept the funding.

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The United States will follow the applicable law, and the tribe will follow the applicable law for the amounts that are funded.

[00:04:16] Speaker 02:
They're short contracts.

[00:04:18] Speaker 02:
Are they signed by both parties?

[00:04:20] Speaker 02:
Yes.

[00:04:21] Speaker 02:
They're signed by both parties.

[00:04:28] Speaker 02:
In this particular case, as we talk about, I think the tribes claim on the contracts, as a contract claim, they're fairly straightforward and within the Court of Federal Claims jurisdiction.

[00:04:40] Speaker 02:
We're asserting that the tribes provided the services.

[00:04:43] Speaker 02:
Here we're talking about housing.

[00:04:45] Speaker 02:
We're talking about houses that the tribes had.

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They had their expenses for them.

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They provided that service consistent with their end of the contract.

[00:04:56] Speaker 02:
And they received the funds from the United States.

[00:05:00] Speaker 01:
We're still in this hypothetical world where we conclude that our mandate in the 2017 decision was overly broad.

[00:05:09] Speaker 01:
And so therefore maybe there's a contract claim that needs to be heard.

[00:05:14] Speaker 01:
But I'm trying to understand what is the theory for why a breach of contract claim would still be viable in light of what we said two years ago.

[00:05:26] Speaker 01:
that the NAHASDA Act itself is not money-mandating.

[00:05:31] Speaker 01:
And you're telling me you have these one-page agreements that are basically calling for the terms of the NAHASDA Act to be executed by the government.

[00:05:43] Speaker 01:
So what would be the jurisdictional hook for a breach of contract claim as being a claim for money damages when we

[00:05:55] Speaker 01:
have already said and were bound by the ruling that NAHASDA itself is not money-mandating.

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What we have in the prior decision was that any money that would be ordered as part of the NAHASDA claim would come with strings attached and therefore was not within the court of federal claims jurisdiction.

[00:06:15] Speaker 02:
Of course, we don't agree with that.

[00:06:18] Speaker 02:
We think that is a misreading of Bowen, but that's what the court decided.

[00:06:21] Speaker 02:
But it said, because there are strings attached,

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Now when we're talking about a contract claim, we're talking about a claim for services that were already rendered.

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And we are talking about a naked money judgment then.

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We are talking about pay them for the services they provided, the housing that they provided.

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So there are no strings attached to that money.

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In a straight contract claim, there are no strings attached.

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The services were already provided many years ago.

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The tribes had that housing.

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The disputed factual issue in the case and why summary judgment was denied was there was an uncertainty about the number of units of housing that were provided.

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And once that is determined, then we can calculate the exact amount that the tribes were owed for the housing they already provided.

[00:07:10] Speaker 02:
So there are no strings attached to that money.

[00:07:13] Speaker 02:
And that's what then brings it outside of the claim that's straight in the Haas to claim.

[00:07:18] Speaker 02:
And that's where I think, as I see it and where we are today, there's certainly a, the United States could have a different interpretation, but there's a very strong argument that the contract claim, the independent contract claim, or the independent breach of trust claim can't proceed, that they are not within the scope of the prior decision, and that we needed some reasoned consideration of that issue.

[00:07:44] Speaker 02:
When we came here in the last case, we were talking solely about the Nahazda issue,

[00:07:48] Speaker 02:
whether Nahazda was money-mandating.

[00:07:50] Speaker 02:
That was the sole issue.

[00:07:51] Speaker 02:
That was the sole issue in the order that was appealed.

[00:07:54] Speaker 01:
But I seem to recall the government's opening brief in the last litigation, in the last appeal.

[00:08:01] Speaker 01:
Their argument, yes, you're right, they were talking about the Nahazda Act and why it's not money-mandating.

[00:08:08] Speaker 01:
But the bottom line focus of the brief was that there was no jurisdiction over this complaint.

[00:08:17] Speaker 01:
the Court of Federal Claims lack Tucker Act jurisdiction.

[00:08:20] Speaker 01:
And so I guess the question would be then, your side, I can't remember, were you the attorney?

[00:08:27] Speaker 01:
I was not the attorney.

[00:08:28] Speaker 01:
OK.

[00:08:28] Speaker 01:
Well, Lummi Tribe's attorney, in response, in filing their red brief, why didn't they explain that they had alternate grounds of jurisdiction beyond the argument that NAHASDA is a money-mandating statute?

[00:08:44] Speaker 01:
I mean, that would have been the time

[00:08:46] Speaker 01:
inform the court that there were also these breach of contract and fiduciary claims?

[00:08:53] Speaker 02:
And I would agree with the court that it should have been done, but as to whether it had to be when we're dealing with an interlocutory order that did not address those claims either.

[00:09:03] Speaker 02:
And so our appeal was actually on the interlocutory order.

[00:09:06] Speaker 02:
The United States' argument was that if you agree with them on the Nahazda claim, the case should be dismissed.

[00:09:14] Speaker 02:
But the actual argument and the issue was a specific order.

[00:09:19] Speaker 02:
And unlike other cases, we don't have merger into a judgment or any of those sort of things.

[00:09:23] Speaker 02:
We just have a specific order.

[00:09:25] Speaker 02:
And that order is solely related to the money-mandating issue and to the related issue of whether a claim for illegal exaction requires that a statute be money-mandating.

[00:09:41] Speaker 02:
Those were the only two issues that were really in that order that was on appeal.

[00:09:44] Speaker 02:
So the appeal, because it was by permission, is limited to those issues.

[00:09:49] Speaker 02:
So it should have been clarified to the court.

[00:09:52] Speaker 02:
But as far as what the court also has a duty, this is the only issue that's before us, is whether to affirm or reject this order that is in front of us, and then to make a decision based upon that.

[00:10:04] Speaker 03:
Assuming that you find yourself back in Colorado before the district court there, what

[00:10:10] Speaker 03:
What's the relief that you would be looking for, and isn't that relief barred by the 10th Circuit ruling in the Maddock case?

[00:10:17] Speaker 02:
We don't think so.

[00:10:19] Speaker 02:
The 10th Circuit case, the decision, its primary disagreement was with the lower court directing that certain funds be used, specifying rather that it could be any funds of the United States.

[00:10:35] Speaker 02:
We think we can structure an order that gives us effective relief without

[00:10:39] Speaker 02:
coming up against that 10th Circuit limitation.

[00:10:44] Speaker 01:
Let's assume I'm skeptical of that.

[00:10:46] Speaker 01:
What would be the theory for why we could reasonably conclude that the District Court in Colorado is a court that has jurisdiction over this claim so that we could transfer it there?

[00:10:59] Speaker 02:
Well, the 1631 standard for this court is whether that court had jurisdiction at the time the claimant was filed.

[00:11:07] Speaker 02:
I certainly would have had jurisdiction at the time the complaint was filed.

[00:11:11] Speaker 01:
And then those issues... You just said certainly, and I need to hear it because.

[00:11:15] Speaker 01:
Because why?

[00:11:15] Speaker 01:
Because right now, assume for the moment, I think that your position runs right into the teeth of the 10th Circuit Modoc opinion.

[00:11:24] Speaker 02:
The 10th Circuit Modoc opinion has to do with whether there's an effective recovery.

[00:11:28] Speaker 02:
The 10th Circuit affirmed that the tribes' rights were violated and affirmed those parts of the order.

[00:11:34] Speaker 02:
The question would be whether we have an effective remedy

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And that is not an issue that we would decide on a 1631 standard, because the question is whether we had jurisdiction at the time.

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And we had jurisdiction at the time that the case was filed.

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So this court would send the case to the district court.

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And the district court would then have to make those decisions.

[00:11:55] Speaker 02:
The United States would be making a mootness argument.

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But it would not be a mootness argument that the case wasn't jurisdiction in 2008.

[00:12:03] Speaker 02:
The 1631 standard is whether there was jurisdiction in 2008.

[00:12:07] Speaker 01:
I just am lost as to what kind of relief you could get.

[00:12:12] Speaker 01:
I think we can get relief.

[00:12:14] Speaker 01:
As I understand the 10th Circuit opinion, you have to be trying to capture the res from those particular appropriation years from which you argue you had money, funding unfairly taken from you.

[00:12:32] Speaker 01:
And if those ress are long exhausted, then there's really nothing left.

[00:12:38] Speaker 02:
No, because the court there has full equitable power and we believe it has then the authority because the United States violated the law.

[00:12:46] Speaker 02:
That court can issue a judgment that the United States violated the law and then require a remedy that it would be not to... Is that what it did in Modoc?

[00:12:55] Speaker 02:
No, it didn't.

[00:12:57] Speaker 01:
What did the 10th Circuit do in Modoc?

[00:12:58] Speaker 02:
The tribes ended up with their funds in Modoc.

[00:13:03] Speaker 01:
Well, that is on a completely unusual circumstance.

[00:13:09] Speaker 01:
It wasn't based on a legal theory.

[00:13:13] Speaker 02:
Well, I'm not sure.

[00:13:15] Speaker 02:
But what we have, as I understand the 10th Circuit decision, is that the tribes cannot get an order that says,

[00:13:28] Speaker 02:
expend this from all available funds, but the tribes can get an order that they are entitled to relief.

[00:13:35] Speaker 02:
It's still at this point, and the United States then would have, we believe, a duty to comply with that order.

[00:13:40] Speaker 02:
Okay, you're willing to rebuttal.

[00:13:42] Speaker 02:
I saw that, yes, and I understood that.

[00:13:45] Speaker 02:
Thank you.

[00:13:50] Speaker 03:
Councillor Gillingham.

[00:13:51] Speaker 00:
Yes, good morning, Your Honor, and may it please the court.

[00:13:54] Speaker 00:
So I'd like to just attack one of the premises that Mr. Erasmus and

[00:13:59] Speaker 00:
referred to.

[00:14:00] Speaker 00:
He said, we owned the houses and we provided services.

[00:14:03] Speaker 00:
This is a reference to what they refer to as the glaring error in their briefs.

[00:14:10] Speaker 00:
The premise is what they say is that we had money and you took it away from us.

[00:14:15] Speaker 00:
This was part of the illegal exaction argument.

[00:14:20] Speaker 00:
But in fact, if you read what this court has said, if you read what the claims court has said, if you read what they have said in their complaints,

[00:14:28] Speaker 00:
In fact, they never had this money.

[00:14:31] Speaker 00:
So for example, in the rehearing petition, they complained that the government took money, exacted money via a downward adjustment from the tribe's subsequent grants.

[00:14:45] Speaker 00:
In other words, we have been not given money in the future.

[00:14:47] Speaker 00:
If you don't have that money, of course you can't spend it.

[00:14:50] Speaker 00:
At page one of their rehearing petition, at Docket Entry 76,

[00:14:56] Speaker 00:
They said the United States required the tribes repay the grant funds by reducing future grant awards.

[00:15:00] Speaker 00:
Again, this is what's the case.

[00:15:02] Speaker 00:
That money is being withheld in the future, not money they have spent and they are entitled to keep.

[00:15:07] Speaker 00:
Ultimately, if you read everything they've said, what they're really saying is not that they had the money that was recaptured, they had the money that was overpaid.

[00:15:15] Speaker 00:
And they may very well have spent that.

[00:15:18] Speaker 00:
And this is what they said from the beginning.

[00:15:20] Speaker 00:
For example, a complaint, paragraph 28 says,

[00:15:23] Speaker 00:
HUD had no lawful authority to recapture grant notice by adjusting future grant allocations.

[00:15:28] Speaker 00:
Again, they're talking about the future.

[00:15:30] Speaker 00:
In Lummi 2 in 2012, Judge Weiss credited all this, saying that the government recaptured the money through the offset of overpayments against underpayments and through the reduction of subsequent year's grants.

[00:15:43] Speaker 00:
This court then, following on all that state of affairs, said in its decision,

[00:15:51] Speaker 00:
To remedy this, HUD decided to adjust the grant amounts plaintiffs would resolve in the ensuing years.

[00:15:59] Speaker 00:
So we're only ever talking about money that was not given in the future, and they're lacking future funds.

[00:16:04] Speaker 00:
There is simply no projects to undertake with those future funds.

[00:16:08] Speaker 03:
Second, do the government take a stake out of a different position in the 10th Circuit than it did here before the Federal Circuit?

[00:16:15] Speaker 00:
No, Your Honor.

[00:16:15] Speaker 00:
What we've said consistently is that

[00:16:18] Speaker 00:
circuit or district court there, most of these cases have been in Colorado, has jurisdiction.

[00:16:23] Speaker 00:
That court has been exercising jurisdiction since 2005 and has awarded monies without the objection of the United States.

[00:16:31] Speaker 03:
So the district court in Colorado had jurisdiction.

[00:16:33] Speaker 00:
That's right.

[00:16:34] Speaker 00:
What it could not do, however, was issue damages.

[00:16:36] Speaker 00:
So the waiver of sovereign immunity that we have found in Hazden, we've said this to the Supreme Court, we've said this in the MODOC decision, we've said this in the district court in Colorado.

[00:16:45] Speaker 03:
But this is damage just under the Tucker Act, correct?

[00:16:48] Speaker 00:
Right.

[00:16:49] Speaker 03:
But what about under the contract claims?

[00:16:52] Speaker 00:
So this brings up the scope question.

[00:16:54] Speaker 00:
The question is, what did this court's earlier decision provide for as a scope of interlocutory review?

[00:17:00] Speaker 00:
We moved for interlocutory review, and we had to prove three things, two in particular, where that was controlling.

[00:17:06] Speaker 03:
I don't think this court decided or addressed the contract claims.

[00:17:10] Speaker 00:
You probably won't find the word contract in there, and that's because it was never raised by the other side?

[00:17:15] Speaker 03:
Correct.

[00:17:15] Speaker 03:
It wasn't an issue.

[00:17:16] Speaker 00:
Oh, it was definitely an issue, though.

[00:17:17] Speaker 03:
Not in the interlocutory appeal.

[00:17:20] Speaker 00:
Sure.

[00:17:20] Speaker 00:
And so this is the scope question.

[00:17:22] Speaker 00:
And so the question is, what was the scope?

[00:17:24] Speaker 00:
So in order to persuade this court to take interlocutory review, we had to prove a number of things.

[00:17:32] Speaker 00:
First of all, there was a controlling question.

[00:17:34] Speaker 03:
So if we were to find that it wasn't within the scope, then wouldn't you agree that in the interest of justice, we should send this back to Colorado?

[00:17:43] Speaker 00:
No.

[00:17:45] Speaker 00:
The separate question is whether under 1631, the Colorado court could do anything.

[00:17:50] Speaker 01:
Or send it back to the Court of Federal Claims.

[00:17:53] Speaker 00:
And the Court of Federal Claims couldn't do anything.

[00:17:55] Speaker 00:
First of all, this court directed the Court of Federal Claims to dismiss for lack of subject matter jurisdiction.

[00:18:00] Speaker 00:
It could have said continue.

[00:18:03] Speaker 00:
We remand for further proceedings consistent with our judgment.

[00:18:06] Speaker 03:
But if we adopt your position, we effectively close the courthouse doors on the tribe on claims that

[00:18:14] Speaker 03:
have been left unadjudicated?

[00:18:17] Speaker 00:
Well, they have for many tribes.

[00:18:18] Speaker 03:
In fact, for... Well, I'm talking about this tribe.

[00:18:20] Speaker 00:
Okay.

[00:18:21] Speaker 00:
So they... And I'm talking about this case.

[00:18:23] Speaker 00:
Right.

[00:18:24] Speaker 00:
And so I'm talking about the law, and it only affords a limited waiver of sovereign immunity.

[00:18:29] Speaker 00:
And that is for under the APA, and it is for the court under the APA exercising that jurisdiction to order specific relief.

[00:18:38] Speaker 00:
And it has done so in the 10th Circuit.

[00:18:42] Speaker 00:
The problem now, and so when MODOC was decided, MODOC said three things.

[00:18:45] Speaker 00:
The Tenth Circuit said three things.

[00:18:47] Speaker 00:
First of all, it said that the only remedy there could be was a specific relief to order that specific funds that were recaptured, for example, 2008 fiscal year funds, 2009 fiscal year funds.

[00:19:00] Speaker 00:
To the extent they remained, the court could direct, if it found liability in favor of the tribes, it could direct the government to direct those available funds to the offended tribe, basically.

[00:19:11] Speaker 00:
They could do that.

[00:19:12] Speaker 00:
And therefore, the second thing they said was that what is the second count here, the illegal exactions for improper use of regulations?

[00:19:20] Speaker 03:
You appear to be arguing the merits of the contract claims, whether there's a remedy or not.

[00:19:26] Speaker 03:
Shouldn't we leave that up to the district court to decide?

[00:19:30] Speaker 00:
So you would have to decide under 1631 whether it was in the interest of justice to do so.

[00:19:36] Speaker 00:
Correct.

[00:19:36] Speaker 03:
And we also have to decide if the court had jurisdiction when

[00:19:40] Speaker 03:
matter was filed and I think we're all in agreement that it did.

[00:19:44] Speaker 03:
So the court had jurisdiction, so the only question is whether in the interest of justice this transfer should be made.

[00:19:51] Speaker 00:
And so what we're arguing is that it's not in the interest of justice because when they get there what they will find is they will be handcuffed by the finding or the legal holding of the Court of Appeals saying unless you can demonstrate that there are funds available for the particular fiscal year that you're interested in

[00:20:09] Speaker 00:
no word can be made.

[00:20:10] Speaker 03:
You're arguing that we should not transfer because they may be faced with an adverse decision.

[00:20:17] Speaker 03:
Shouldn't we transfer and let the tribe argue and have their day in court and the opportunity to be heard on this issue?

[00:20:24] Speaker 00:
Judge Posner in a case, I think we cited, and I forget the name of it, said the trial court is allowed to peek to the merits to decide whether it's in the interest of justice.

[00:20:33] Speaker 00:
In this case, it would not be.

[00:20:35] Speaker 00:
As my opponent knows, in March of 2018,

[00:20:39] Speaker 03:
Tell me again why it would not be in the interest of justice.

[00:20:42] Speaker 00:
Because there's no money available for the tribe to pull from, basically.

[00:20:46] Speaker 00:
Unless they have a set aside... I'll tell you this.

[00:20:50] Speaker 00:
So there's three tribes here.

[00:20:52] Speaker 00:
According to stipulation entered into the parties in docket number 55 in 2012, the only recapture... If there were funds available, then it would be in the interest of justice?

[00:21:04] Speaker 00:
If the money were available, yes.

[00:21:05] Speaker 00:
Right.

[00:21:07] Speaker 00:
Right.

[00:21:08] Speaker 00:
First of all, they have to have that money set aside.

[00:21:10] Speaker 00:
The government set aside by stipulation millions of dollars by agreements with the tribes.

[00:21:15] Speaker 00:
In the case of one tribe, Navajo was ordered to set aside money.

[00:21:19] Speaker 00:
And so those tribes have relevant fiscal years for their particular claims to call from.

[00:21:24] Speaker 00:
In this case, according to docket number 55 filed in May 2012 by the parties in this case, they agree that the only money available from 2008

[00:21:36] Speaker 00:
that was ever recaptured from any of these tribes was, I think, $93,000 from Fort Berthold, I think it was.

[00:21:42] Speaker 00:
And so the question becomes, is there 2008 money available?

[00:21:46] Speaker 00:
Now, I focus on the year 2008 because in those other proceedings, the government filed a declaration at the behest of the district court based on the remand instructions of the circuit court to describe how much money was available and in what fiscal years.

[00:22:00] Speaker 00:
And what that document

[00:22:01] Speaker 00:
concluded was there was about, at this point, as of February 2018, there was about $3 million left.

[00:22:07] Speaker 00:
And that was all because it had been ordered to be held either by stipulation, subsequently incorporated in an order, or because, in the case of the Navajo, the court had ordered it to be set aside.

[00:22:18] Speaker 00:
Now, to be fair, those cases terminated on February 28.

[00:22:22] Speaker 00:
The government had made payments in advance.

[00:22:25] Speaker 00:
And so the question is, what do we want?

[00:22:26] Speaker 03:
Can the court order equitable relief of any kind?

[00:22:29] Speaker 00:
Yes, the equitable relief is, this was a big question in MODOC, and this was a question that was taken up to the Supreme Court on certiorari, and certiorari was denied.

[00:22:37] Speaker 00:
The question was, within the court's APA powers, could it order a remedy of damages?

[00:22:44] Speaker 00:
And of course, the APA precludes that.

[00:22:46] Speaker 00:
However, it could order specific relief.

[00:22:48] Speaker 00:
That is, as the 10th Circuit described, the district judge could order that a specific year's appropriation, to the extent that that appropriation was available,

[00:22:57] Speaker 00:
could be directed to a tribe in whose name those funds had been held or for whom they are otherwise available.

[00:23:04] Speaker 00:
So what we're saying in this case was based on the review of the docket, we can certainly file all these things.

[00:23:10] Speaker 00:
The government declared then that as of February 23, 2018, this was a March 2018 declaration, there were only, I think it was $3.7 million remaining.

[00:23:23] Speaker 00:
And that was the sum of all of the money that had been held for particular tribes.

[00:23:27] Speaker 00:
Now, it just so happens that the government paid those tribes according to a 2014 judgment and may have used the money and the withholdings may not have.

[00:23:36] Speaker 00:
But those monies may not be released.

[00:23:38] Speaker 00:
It must be held in the favor of those tribes until the litigation is over or until the district court allows it.

[00:23:45] Speaker 00:
Now, the district court issued a judgment on February 27, 2019, I'm sorry, last week, saying that the case was terminated.

[00:23:54] Speaker 00:
So we're now within the appeal period.

[00:23:57] Speaker 00:
And so what happens to that $3.7 million?

[00:24:00] Speaker 00:
I don't know.

[00:24:01] Speaker 00:
But only for Berthold.

[00:24:03] Speaker 00:
And the declaration said there was only 2008 money available.

[00:24:06] Speaker 00:
In this case, according to docket entry 55, stipulated in 2012 by the parties.

[00:24:11] Speaker 00:
In this case, there's only one tribe for Berthold that had 2008 funds recaptured from the 2008 fiscal year funds.

[00:24:22] Speaker 00:
So in theory, that's available.

[00:24:24] Speaker 00:
That has not been set aside for them.

[00:24:27] Speaker 00:
And so, as we said in our brief here, absent any allegation that the money has been set aside for them, then there does not appear to be an interest of justice, because the money that we know that exists is being held, at least currently, in favor of other tribes.

[00:24:45] Speaker 01:
What about sending back the breach of contract and fiduciary claims to the court of law?

[00:24:50] Speaker 00:
So this gets back to the scope issue.

[00:24:54] Speaker 00:
to grant interlocutory review, an argument that was credited by the court and is granted interlocutory review, we did not limit it just to the narrow question of money mandating.

[00:25:03] Speaker 00:
One of the things we had to demonstrate is that by granting this petition, this would materially advance the conclusion of the litigation.

[00:25:12] Speaker 00:
We described the extensive discovery that was about to go on and the fact that there was going to have to be an extensive trial.

[00:25:17] Speaker 00:
And our goal was to end the litigation.

[00:25:18] Speaker 00:
So we said, at petition page 11,

[00:25:22] Speaker 00:
reversal of the trial court's holding that has this money mandating within this action.

[00:25:28] Speaker 00:
We further said, if it is not money mandating, the trial court lacks jurisdiction to adjudicate whether or not and to what extent HUD-deprived plaintiffs or grant funds.

[00:25:36] Speaker 01:
What filing are you reading from?

[00:25:38] Speaker 00:
This is our petition filed in 2017.

[00:25:43] Speaker 01:
To whom?

[00:25:44] Speaker 00:
To this court, describing what we were attempting to do, which was to end the action once and for all.

[00:25:49] Speaker 00:
And then finally, we said, reversal of the trial court's holding that Nahazza impliedly entitles plaintiffs to a damages remedy would terminate this Tucker Act action.

[00:25:58] Speaker 00:
And then this court credited all of that in its grant of our petition, saying, let me see, your grant says here, there is not only a controlling question of law, but a substantial ground for difference of opinion as to whether this was a complaint that could properly be brought under the Tucker Act.

[00:26:18] Speaker 00:
an immediate review will ensure that the Court of Federal Claims is the court of proper jurisdiction.

[00:26:24] Speaker 00:
So it was wide open as to the complete jurisdiction of this court.

[00:26:28] Speaker 00:
And in deciding the case, among other things, the court having decided there was no damages remedy available, and therefore the court lacks jurisdiction in total, the court said any such claim for relief under Nehazza would necessarily be styled in the same fashion.

[00:26:43] Speaker 01:
Well, let's assume that the court

[00:26:46] Speaker 01:
didn't know about, didn't consider, and therefore didn't evaluate whether there could be a breach of contract claim, of a breach of a funding agreement that comes from NAHASDA.

[00:26:59] Speaker 01:
So why couldn't there plausibly still be a breach of contract claim?

[00:27:03] Speaker 00:
I can accept your premise, Your Honor, but I'll have to tell you it's counterfactual.

[00:27:06] Speaker 00:
First of all, this argument is identical to the one that the tribe briefed in their petition for a hearing at page 15.

[00:27:12] Speaker 00:
They said exactly this.

[00:27:14] Speaker 00:
They had to there to

[00:27:15] Speaker 00:
demonstrate to the court that there was a point of law or a point of fact that had been overlooked or misapprehended.

[00:27:23] Speaker 00:
And so they briefed this very question to the court, and the court rejected that, effectively saying, we got the point, we didn't misapprehend anything, and then you, the court, ordered the mandate to issue seven days later, which was on January 12th, directing the court.

[00:27:37] Speaker 00:
No, I understand.

[00:27:38] Speaker 01:
But we also, this panel, this court,

[00:27:43] Speaker 01:
conclude that there are exceptional circumstances here to reconsider that piece of the mandate and realize that there was a mistake made perhaps in that appeal.

[00:27:54] Speaker 01:
And so then the next question becomes, is there an opportunity to send back to the court of federal claims, even though the court of federal claims did what we asked it to do, which was dismiss the entire case, but maybe crack that back open and consider

[00:28:12] Speaker 01:
the breach of contract claim.

[00:28:14] Speaker 01:
And so what I'm asking you right now is to get to the merits of the breach of contract claim and why wouldn't there be a viable breach of contract claim in this case given that there's a normal presumption that a breach of contract has a remedy for money damages.

[00:28:32] Speaker 00:
Well, the only reference to this funding document was, so account one is there and it has account, account two is your legal transaction account, account three the trust

[00:28:41] Speaker 00:
And in Council 1 and 2, they said, such action also constitutes a material breach of the plaintiff's annual NAHASDA funding agreement.

[00:28:48] Speaker 00:
My opponent just admitted that what there is is not in the record at all, and certainly was never briefed as to how it might create an independent grounds for jurisdiction.

[00:28:56] Speaker 00:
And that all it says is the government will give money under NAHASDA, the plaintiffs will receive money under NAHASDA, and they agree to follow the law of NAHASDA.

[00:29:05] Speaker 00:
Once the court decided that NAHASDA is not money-mandating, that no damages could flow from a NAHASDA action,

[00:29:11] Speaker 00:
whether they're encapsulated in just naked regulations of law, or whether they're put into a piece of paper reminding the parties which law applies.

[00:29:19] Speaker 00:
It's the same result either way.

[00:29:21] Speaker 00:
Once the court decided there was no damages, the court decided that.

[00:29:25] Speaker 03:
Did we actually decide that on the marriage, that question?

[00:29:29] Speaker 00:
You decided that there was.

[00:29:30] Speaker 03:
We denied a petition for rehearing.

[00:29:31] Speaker 00:
That there was no claim for damages, yes.

[00:29:33] Speaker 00:
The other point is, of course, since the question before the court, to ensure that this was an interlocutory review that would

[00:29:42] Speaker 00:
materially advance the resolution of the case, the court necessarily included this sentence that occurs in count one, and it has the count, and count two, the illegal ex-action count.

[00:30:00] Speaker 00:
And then the court was briefed and rehearing and reminded that these things should have been considered because they were never raised at all during interlocutory review itself.

[00:30:11] Speaker 00:
So because it was within the scope and because it wasn't briefed, it's waived.

[00:30:15] Speaker 00:
But the court clearly understood it was disposing of jurisdiction.

[00:30:18] Speaker 00:
And there's simply no further ground for the court, there being no claim for damages, to exercise jurisdiction under any aspect, under any theory whatsoever.

[00:30:28] Speaker 03:
Thank you, Mr. Chairman.

[00:30:29] Speaker 03:
Thank you for your time.

[00:30:32] Speaker 03:
Mr. Rasmussen, we'll restore you to four minutes.

[00:30:35] Speaker 02:
Thank you.

[00:30:35] Speaker 02:
Thank you, Your Honor.

[00:30:40] Speaker 02:
I wanted to start off with,

[00:30:41] Speaker 02:
that the prior appeal was from a specific order.

[00:30:49] Speaker 02:
And it's not just that the contract issues were not discussed in the briefs to this court in the prior case, but that they were not discussed in that order either.

[00:31:01] Speaker 02:
That was the order that was on appeal.

[00:31:04] Speaker 02:
The United States certainly was trying to say, well, if we win this claim, we're going to win the case.

[00:31:11] Speaker 02:
The appeal was limited to the order.

[00:31:14] Speaker 02:
And the contract and the breach of trust claims were not discussed in that appealed order.

[00:31:20] Speaker 02:
And unlike other appeals that we are, then that's what defines the scope of the appeal is, was that order, that interlocutory order, and only that interlocutory order, was that appropriate?

[00:31:34] Speaker 01:
But the government's right, isn't it, when your opposing counsel pointed out that

[00:31:40] Speaker 01:
you know, granting interlocutory order appeals is grounded on materially advancing the litigation.

[00:31:46] Speaker 01:
And so the whole premise of the appeal was the possibility of just ending the litigation right now without any further action.

[00:31:56] Speaker 01:
Right.

[00:31:57] Speaker 01:
Which therefore is premised on the idea that whether Nahazda is money mandating was the main and only event when it came to the jurisdictional question.

[00:32:10] Speaker 02:
I think that this court was thinking that when it granted it.

[00:32:16] Speaker 02:
But when you then look at what is before the court in an interlocutory appeal, that doesn't then expand the interlocutory appeal because they thought that if they decided the money-mandating issue, the case would go away.

[00:32:30] Speaker 02:
Still, the only thing they can do is either affirm or reject that interlocutory order and issue appropriate orders based upon that.

[00:32:38] Speaker 02:
So if the contract claims aren't in that order,

[00:32:40] Speaker 02:
the breach of trust claims aren't in that order that is being appealed, they were just mistaken in thinking, oh, if we decide this Nahasda issue, we're going to decide the case.

[00:32:50] Speaker 02:
They were mistaken about that.

[00:32:52] Speaker 02:
But that's still the definition of what was within the scope of the appeal.

[00:32:57] Speaker 02:
The United States keeps talking about the scope of the appeal.

[00:32:59] Speaker 02:
The definition of what was in the scope of the appeal is, was it in that underlying order?

[00:33:03] Speaker 02:
And it was not.

[00:33:04] Speaker 02:
The underlying order did not discuss the contract claims, did not discuss the breach of trust claims.

[00:33:09] Speaker 02:
So none of the parties breached those because those were not part of what we were trying to discuss.

[00:33:15] Speaker 02:
Was this order appropriate?

[00:33:19] Speaker 02:
One thing I wanted to discuss just on the effectiveness of sending the case to Colorado is when we talk about having our day in court, we don't have to accept the 10th Circuit's decision.

[00:33:34] Speaker 02:
This court itself was critical of the 10th Circuit's decision.

[00:33:37] Speaker 02:
We were critical of the 10th Circuit's decision.

[00:33:38] Speaker 02:
We asked for certiorari for other tribes, not these tribes, but other tribes.

[00:33:45] Speaker 02:
And we still think that that decision was wrong.

[00:33:48] Speaker 02:
And we think that that court does... But we're all stuck with it, aren't we?

[00:33:53] Speaker 02:
No, we're not.

[00:33:53] Speaker 02:
These tribes here are not.

[00:33:56] Speaker 02:
Because there is a higher court than the 10th Circuit.

[00:33:59] Speaker 02:
Right.

[00:33:59] Speaker 02:
But that higher court denied cert.

[00:34:02] Speaker 02:
On that case, not with these

[00:34:05] Speaker 02:
These plaintiffs are not bound by res judicata from that prior decision.

[00:34:09] Speaker 02:
And so these plaintiffs have the right to still challenge that decision all the way up through the 10th Circuit and then the Supreme Court.

[00:34:17] Speaker 02:
And so when we make an assumption that the 10th Circuit would say you lose, that doesn't mean that we don't have the right to proceed in court and to continue on and to ultimately challenge that 10th Circuit decision if it

[00:34:32] Speaker 02:
In fact, there isn't money available.

[00:34:33] Speaker 02:
We think there is money available that can be used, that the court can fashion a remedy to get these plain decisions.

[00:34:41] Speaker 01:
So binding circuit court precedent is irrelevant in determining whether or not to transfer to a court that may have jurisdiction when the binding circuit court precedent says it doesn't?

[00:34:54] Speaker 01:
Because there's always the chance that you can run it up the flagpole and succeed at the Supreme Court.

[00:35:00] Speaker 02:
If it's not res judicata, the 1631 standard is whether there was jurisdiction at the time it was filed.

[00:35:07] Speaker 02:
And there was.

[00:35:08] Speaker 02:
That's the 1631 standard.

[00:35:10] Speaker 02:
And then the other decisions go through the other court system, the district court system.

[00:35:15] Speaker 02:
And we have the right to go through the district court system to present those issues.

[00:35:23] Speaker 02:
But our primary position is that we also think there is a remedy.

[00:35:28] Speaker 02:
It's not just within the Tenth Circuit's decision.

[00:35:32] Speaker 03:
What about the government's argument that it would not be in the interest to send this back because there really is no money available for it?

[00:35:39] Speaker 02:
We don't agree with that.

[00:35:41] Speaker 02:
We believe that the district court with full equitable powers can issue a remedy that would be effective to get these tribes the money that they are owed.

[00:35:52] Speaker 02:
These tribes have an ongoing relationship with the United States and the court can fashion a remedy that requires

[00:35:57] Speaker 02:
payment out of future years for what the 10th Circuit said were illegal actions by the United States taking this money unlawfully from the tribes.

[00:36:07] Speaker 02:
But there was a wrong, and we believe there can be then a remedy through the future process.

[00:36:13] Speaker 03:
Thank you.