Jicarilla Apache Nation v. United States

Federal Court Rebuffs Feds’ Effort to Modify Phase 1 Judgment in Jicarilla Trust Breach Case

October 16, 2014Matthew L.M. Fletcher

Here are the materials in Jicarilla Apache Nation v. United States (Fed. Cl.):

405 Govt Motion to Modify Phase 1 Ruling

An excerpt:

In the guise of a motion under RCFC 54(b) and 59(a)(1), defendant would have the court consider issues that were not raised during the trial in this case – issues that defendant could have raised, but did not. As plaintiff makes perfectly clear, defendant is seeking to litigate in this tranche issues involving intra-pooling of funds, when the issues before this first stage of the case involved the inter-pooling of funds. Compare Jicarilla Apache Nation, 112 Fed. Cl at 301-02. Defendant could have raised these issues in discovery or even during the pretrial filings in this case, but did not. Nor does defendant rely upon any newly-discovered evidence. The court will not allow defendant to raise these issues at this late stage.

And:

Because of the complexity of this case, the court dealt with this case in stages – and plaintiff and defendant clearly understood this. The court will not allow defendant to alter the stages in this case, as defendant deems fit. Therefore, defendant’s motion is DENIED. Further violations by defendant of this court’s orders, both for discovery and pretrial filings purposes, may lead to the imposition of sanctions.

A technical ruling to be sure. Here is a quick primer:

The boldface reference to “inter-pooling of funds” concerns pooling of trust accounts among tribes for better investment returns, as has been done with IIM accounts since their inception. On cross-motions for summary judgment before trial, the Court held that the intertribal pooling claim fell within Indian Tucker Act jurisdiction even though there was no statutory reference to such a duty, and notwithstanding the then-recent Supreme Court decision in the same case, but that fact issues precluded summary judgment as to whether there was such a duty here. Jicarilla Apache Nation v. United States, 100 Fed. Cl. 726, 739-40 (2011). After trial, the Court held that Jicarilla did not prove such a duty. See the reference in today’s order to the post-trial decision.

In the motion for modification, the US sought to have the phase 1 trial ruling also preclude intra-tribal pooling of trust accounts, when concerns pooling of Jicarilla’s multiple trust accounts (as above, to obtain better returns). At trial, Jicarilla basically presented its damage calculations based on that, without objection by the US. Not surprisingly, the Court rejected the recent motion as seeking to challenge something that the US had failed to address in discovery or before (or during) trial.

We posted on the Phase 1 judgment here.

Order Denying Summary Judgment on Pooling Claims in Jicarilla Apache Nation v. United States

August 29, 2011Matthew L.M. Fletcher

Here is the order:

J-2011-08-26 330 opinion on pooling & disbursement MPSJs

Some of the language here is striking, with the court apoplectic about the government’s continued demand that the court recognize its view that the trust responsibility be winnowed down to almost nothing:

Defendant would have this court blithely accept what so many courts have rejected – that for the breach of a fiduciary duty to be actionable in this court, that duty must be spelled out, in no uncertain terms, in a statute or regulation. But to conclude this, this court would have to perform a logic-defying feat of legal gymnastics.

That routine would commence with a full jurisprudential gainer – a twisting, backwards maneuver that would allow the court to ignore cases like White Mountain Apache and Mitchell II that have relied upon the common law to map the scope of enforceable fiduciary duties established by statutes and regulations. The court would then need to vault over Cheyenne-Arapaho and a soaring pyramid of other precedents, all of which have found defendant’s argument wanting. Next, the court would be called upon to handspring to the conclusion that Congress’ repeated legislative efforts to ensure the safe investment of tribal funds were mostly for naught – because, if defendant is correct, the provisions enacted were generally not perspicuous enough to create enforceable duties and, even where specific enough to do so, left interstices in which defendant could range freely. Indeed, while egging the court on, defendant never quite comes to grip with the fact that if the government’s fiduciary duties are limited to the plain dictates of the statutes themselves, such duties are not really “fiduciary” duties at all. See Varity Corp. v. Howe, 516 U.S. 489, 504 (1996) (“[i]f the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose”). Taken to its logical dismount, defendant’s view of the controlling statutes would not only defeat the twin claims at issue, but virtually all the investment claims found in the tribal trust cases, few of which invoke haec verba specific language in a statute or regulation. Were the court convinced even to attempt this tumbling run, it almost certainly would end up flat on its back and thereby garner from the three judges reviewing its efforts a combined score of “zero” – not coincidentally, precisely the number of decisions that have adopted defendant’s position.

Turtle Talk

Jicarilla Apache Nation v. United States

Federal Court Rebuffs Feds’ Effort to Modify Phase 1 Judgment in Jicarilla Trust Breach Case

Order Denying Summary Judgment on Pooling Claims in Jicarilla Apache Nation v. United States

More Documents on In re United States