“Even the fool understands after the fact.” Menelaus (Il. 17:32)
Those who read my posts regularly will observe that I commonly predict the Justices’ reaction to a case, at least when the briefing and argument (or my inalterable predispositions) suggest to me a strong likelihood that the Justices will view the case in a particular way. I’ve always doubted the added value of a straightforward summary of the positions of the parties. How many of us have the time to read a post that simply repeats the principal points of the parties without an assessment of their relative weight? When I’m looking for that information, I don’t look for a blog post; I read the summary of argument sections from the principal briefs.
That approach seems most foolhardy on the days when my initial take on a case is most strikingly mistaken. Yesterday was one of those days. Yes, I felt good after the argument in Merrill Lynch (discussed here) buttressed my impression that Merrill Lynch had little chance to persuade the Justices to protect it from the New Jersey courts’ adjudication of securities claims against it. But the argument in Menominee Indian Tribe v. United States was as diametrically opposed to what I had predicted as any about which I have written here.
The case presents the latest installment (in its third appearance before the Court) of a longstanding dispute over the federal government’s obligation to make payments to the numerous Native American tribes affected by the Indian Self-Determination and Education Assistance Act (ISDA). For present purposes, it is enough to say that the government signed contracts obligating itself to make payments under that statute, that Congress has been reluctant to appropriate funds to make those payments, and that the executive branch has 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. Because the Contract Disputes Act requires government contractors to present their claims no more than six years after they accrue, the D.C. Circuit dismissed as untimely the tribe’s claims for the contract years before 1999. In my preview, I emphasized the rank indeterminacy of the law of equitable tolling and the Court’s two previous decisions rejecting the government’s excuses for its failure to pay under the contracts it signed with the affected tribes. Collectively, those two features of the case convinced me that the Justices would react sympathetically to the plight of the tribe.
I could not have been more wrong. The Justices who spoke during yesterday morning’s argument were unremittingly dubious. It is not an exaggeration to say that there was not one comment from the bench during the entire argument that suggested any predilection, disposition, or expectation of a vote for the tribe. Although individual Justices offered a variety of other reasons to reject the tribe’s position, two general themes dominated the Justices’ shared expressions of skepticism.
The first is the perceived feebleness of the tribe’s excuse for the delay in presenting its claim. As explained in the briefs, the Cherokee case that eventually reached the Supreme Court was pending as a class action for much of the period between 1998 and 2005. Because tribes had been allowed to participate in a separate ISDA class action without presenting their claims in the administrative process (a case in which the tribe is receiving payments to this day), class counsel in the Cherokee case offered the advice – advice that turned out to be incorrect – that the tribe would be able to participate in the Cherokee case without presenting its claims in that process.
Several Justices found it remarkable that the tribe relied on the unreported and unappealed decision that forgave the failure to exhaust administrative remedies in the first class action. For example, Justice Sonia Sotomayor commented:
Minimal research would have shown that every other court at that time … had required exhaustion. … So how could you reasonably rely on a lower court decision that hasn’t gone through the crucible of appellate review without having done any research on whether its premises were subject to dispute? … I know that’s what you believe, but every other court up until that time had said “No. You need to exhaust.”
Justice Elena Kagan was even more incredulous:
I mean, you’re saying that that single district court should have had such power in the tribe’s mind that they didn’t do the presentment. And that seems an extraordinary thing. It’s just a single district court. A single district court has no controlling authority over anyone or anything other than that particular decision.
The second problem was more specifically doctrinal: a deep-seated reluctance to accept legal advice as a basis for equitable tolling. Justice Antonin Scalia raised that point early in the argument, when he intervened in the discussion criticizing the foolhardiness of the tribe for relying on such flimsy advice:
All of this goes to deciding whether the legal advice they received was reasonable legal advice. I find that quite irrelevant. Do you have a single case in which legal advice has qualified for equitable tolling? [Counsel representing the tribe admits he does not.] So you’re really arguing a remarkable proposition, that if you get bad legal advice that justifies equitable tolling. … Our cases refer to extraordinary circumstances that stood in the way and prevented timely filing. I would not qualify erroneous legal advice as preventing timely filing. I don’t care how reasonable it was. It didn’t prevent it.
In the same vein, Sotomayor left no doubt of the unacceptable consequences she saw flowing from acceptance of the tribe’s argument:
There are so many people who don’t have resources to pursue litigation. How do we differentiate you from those millions of people with lack of resources who choose not to pursue claims, … because they think … they’re going to lose, because that’s the state of the law? … How do we articulate an equitable tolling principle that won’t open a floodgate to making a statute of limitations basically a nullity?
Quotation and summary of further expressions of a predisposition to reject the tribe’s plea for tolling from Justices Stephen Breyer, Ruth Bader Ginsburg, and Samuel Alito would not make the point any clearer and would only underscore the magnitude of my initial folly. It is enough to say that the comments of the Justices in Tuesday’s argument suggest that the Justices will unite to reject the tribe’s plea out of hand. Putting aside the self-examination of the cause of my misreading of the matter, the most interesting question the argument raises for me is why the Court troubled to take the case at all if so many of the Justices are so strongly predisposed to affirm the D.C. Circuit’s disposition of such a fact-bound dispute.
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