Turtle Talk

Note: We anticipate commentary from additional experts as well a little later.

Despite an opening flurry of difficult questioning for the government’s counsel, today’s oral argument exemplifies the tough road Indian nations face when litigating in the Supreme Court. Today’s case concerns the rather arcane civil procedure question of whether a party suing the government for money damages in the Court of Federal Claims can bring a second/simultaneous suit in federal district for injunctive remedies that may or may not be available in the CFC.

Early questioning from Justices Sotomayor, Ginsburg, and Breyer (and even Chief Justice Roberts to some extent) forced the government lawyer to concede that there may be a “tough choice” for plaintiffs to make when suing the government in certain instances — sue for money damages or sue for injunctive relief, but not both — with the only remedy left being a trip to Congress to change the outcome.

At page 20 of the transcript, Justice Breyer asked the following question:

Your basic point is this: You’re just saying it’s too bad, go to Congress. But you don’t deny the basic point, which is that an Indian tribe may think the Bureau of Indian Affairs has really mismanaged everything and what they would like is some money, and also they want an injunction so they won’t do it again.
And now your view is, it’s true, there is no way they can get that, because they have to go to two different courts, and really in your view they can’t go to two different courts, period.

Anthony Yang, the government’s lawyer, doesn’t get to answer the question until page 23 but he makes what seems like a fairly huge concession at this point:

In some cases, it’s is a tough choice. Casman would have been a very difficult choice. But as this Court suggested in Keene, the question goes to Congress, and when Congress addressed the question it decided relief of that sort should be brought all in the Court of Claims.

In other words, Congress says make the choice and live with it. Seems fairly harsh, and maybe in other cases, would be reason for the Court to give serious thought to affirming the lower court (and they may well do so, assuming Breyer, Ginsburg, and Sotomayor can persuade one other Justice to join them). But consider the advantages at the beck and call of the federal government:

1. This case could open the door to more cases like Navajo Nation (2003, $600 million judgment against the U.S.) [see page 17 of the transcript], or Cobell (multi-billion dollar judgment against the U.S.) [see page 12 of the transcript].

2. This is a case claiming bad faith/negligent acts of the government going back 100 years [see page 17], or that Justice Kennedy suggests could be barred by laches [page 45].

The Justices’ questioning of the Nation’s counsel, and smart comments from the government’s lawyer, suggests one possibility — that the Court would rule against the Nation here because most claims raised by other plaintiffs similarly situated to the Nation (in other words, other non-Indian entities) would be able to bring the claims within the six-year Administrative Procedures Act statute of limitations. As Mr. Kang noted:

Because you might be able to bring, for instance, an APA suit that completes before the six-year statute of limitations ends. And frankly, we don’t think that that’s an unusual thing, for an APA action to be brought promptly, even with an appeal. APA actions, again, if it’s limited to the administrative record as they should, you can go straight to a summary judgment-like procedure….

Yes, a harsh result for the Nation perhaps (though one of their complaints would proceed) in order to reach the government’s preferred reading of Section 1500. Only Indian nations (and Cobell-like plaintiffs) would be affected. In short,  tribal interests would be the only types of parties negatively affected by enforcing the 6-year APA limitation.

Ouch.