Opinion analysis: Justices rebuff tribe’s claim for equitable tolling in government-contract dispute
on Jan 25, 2016 at 5:24 pm
It is commonly said that you can never be sure how a case will come down based on what the Justices say at the argument. But that doesn’t mean you can never get any reliable information from the argument. Menominee Tribe of Wisconsin v. United States is a case in which the opinion was just what the comments of the Justices at the argument presaged: a terse and uncompromising rejection of the tribe’s claim.
The case presents the latest installment (on its third go-round at the Court) of a longstanding dispute over the obligation of the federal government to make payments to the numerous Native American tribes affected by the Indian Self-Determination and Education Assistance Act (ISDA). Acting under that statute, various agencies of the federal government signed contracts obligating themselves to make payments to the tribes, but Congress has been reluctant to appropriate funds to make those payments; short of funds, the executive branch responded with a decades-long pattern of litigious foot-dragging.
The particular dispute here involves a claim by the Menominee Tribe under its contracts for the years 1996 through 1998. The tribe first presented its claims in the administrative process in 2005, shortly after the Supreme Court’s decision in Thompson v. Cherokee Nation validated similar claims brought by the Cherokee Nation. Unfortunately for the tribe, the Contract Disputes Act requires government contractors to present their claims no more than six years after they accrue. By 2005, the D.C. Circuit held, the tribe had lost all claims for the contract years before 1999.
Equitable tolling cases are inherently fact-specific, which means that a useful explanation of the decision requires an unwontedly detailed summary of the factual background. The Menominee Tribe, the plaintiff in this case, excused its delay by pointing to the backdrop of two preceding pieces of ISDA litigation. The first of the prior disputes is the Ramah case against the Bureau of Indian Affairs, a class action alleging systemic noncompliance with the ISDA. The district court in Ramah concluded that the systemic nature of the claims excused compliance with the requirement that the tribes present their claims. That ruling was never subject to appellate review; rather the Ramah case proceeded to settlement in the trial court. The second case is the Cherokee Nation class action, against the Indian Health Service (IHS). The district court in that case denied class certification without addressing the need to present claims, because the named plaintiffs had presented their claims in a timely manner. Those tribes did not challenge the certification ruling, but they did appeal and eventually prevailed on the merits in the Supreme Court.
The Menominee Tribe’s case involves a claim against the IHS much like the Cherokee claim. Relying on the Ramah litigation, however, it did not present its claim in a timely manner. In hindsight, however, it appears that the tribe’s reliance was misplaced; it is now settled that the tribe needed (but failed) to present its claims within the six-year window. The tribe’s argument for equitable tolling is that the district-court ruling in Ramah gave the tribe a good reason for not presenting the claims promptly here. Justice Samuel Alito’s terse opinion for a unanimous Court firmly rejects that claim, summarily dismissing the tribe’s arguments for tolling.
First, the opinion explains that the standard test for equitable tolling requires the tribe to show both diligence and that extraordinary circumstances prevented compliance. The tribe argued that the factors should be considered together, and that the lack of extraordinary circumstances, standing alone, is not enough to justify dismissing its complaint. The Court disagreed, emphasizing that it repeatedly has characterized the test for equitable tolling as having two “‘elements,’ not merely factors of indeterminate or commensurable weight.”
Second, the opinion explains that the “extraordinary circumstances” prong requires something “external,” “beyond the [litigant’s] control.” The Court points to the classic formulation of the test as requiring evidence of something that “stood in [the claimant’s] way.” Because the tribe’s “mistaken reliance on the putative Cherokee Nation class action was not an obstacle beyond its control,” the tribe could not satisfy that prong of the standard. Quoting from an earlier case, the Court concludes that “[t]his mistake was fundamentally no different from a garden variety claim of excusable neglect.”
So what can be made of this case? Perhaps it provides a lesson in the value of centralized control of the Supreme Court docket. The reaction of the Justices at the argument (and in today’s opinion) suggests that the facts in this case were not at all persuasive. Perhaps the tribe should have recognized that before bringing this case to the Court. Brought to a decision by the Court, the case is likely to cast a shadow over equitable tolling cases for years to come. Future Indian tribes with similar problems may well wish that the tribe in this case had accepted its defeat at the court of appeals without pushing for such a stern limitation on the doctrine from the Supreme Court itself.
PLAIN LANGUAGE: The federal government did not make payments it owed to the Menominee Tribe. The tribe did not file suit, however, until more than seven years after the payments had been due. Federal law required tribes to present their claims within six years. The tribe asked the Court to “toll” the timing requirement, hoping that the Court would excuse its delay. The tribe explained that it had not presented its claims promptly because a district court in another similar case decided that the presentation requirement didn’t apply to claims like these; the tribe thought (incorrectly) that the trial court in its case would apply the same rule. The Court said that was not a good enough excuse. The only excuses that will extend the time for presenting claims are excuses that are “external obstacles” beyond the control of the tribe.
