United States v. Tohono O’odham Nation

Supreme Court Recap: 2010 Term

Matthew L.M. Fletcher

The Supreme Court’s 2010 Term — for tribal interests — was a flurry of activity, but with little to show for it. In Shakespeare’s words, full of sound and fury but signifying nothing (or almost nothing). Our two previews are here and here. Our previous mid-Term updates are here and here.

The underlying theme of the Term seems to be the aggressive campaign by the Department of Justice to undermine the tribal-federal trust relationship. Of note, the once-prominent and now-discredited Lone Wolf period where the Supreme Court granted free reign to Congress and the Executive branch appears to be recurring, with the Executive branch now enjoying virtually unlimited authority to handle tribal trust property with little or no consultation. Also, for the sixth consecutive Term, and for every Term except 1996, the Court granted zero tribal petitions.

Granted Cases

1. United States v. Tohono O’odham Nation (09-846). Loss.

The Court ruled 7-1 against the Nation (with Justice Kagan recused). Only Justice Ginsburg dissented. The Court then GVR’d a similar case, United States v. Eastern Shawnee. Within a few weeks of the outcome, the government began moving for dismissal of claims around the country, the first apparently being the Goodeagle case.

Oral argument recaps are here and here (from Millett and Meggesto). The oral argument transcript is here.

2. Madison County v. Oneida Indian Nation (10-72). GVR.

This is the big surprise of the Term (and it appears the closest thing to a “win” for tribal interests), with the Supreme Court granting cert on the question whether tribes are immune from foreclosures by counties for failure to pay property taxes, and then the Oneida Indian Nation enacting an ordinance purporting to waive its immunity from such suits. Over the petitioners’ objections, the Court remanded the case back to the Second Circuit for reconsideration in light of Oneida’s waiver.

3. United States v. Jicarilla Apache Nation (10-382). Loss.

Easily the biggest case for tribal interests the Court granted this Term, and the biggest disappointment. The Court ruled 7-1 (with Justice Kagain recused, and Justice Sotomayor dissenting) that common law fiduciary trust law doesn’t apply to Congressionally-created trusts. The outcome here means that It remains to be seen whether other trusts would survive the ruling. The case attracted attention from a national Court observer (Andrew Cohen), who harshly criticized the decision (here).

The oral argument transcript is here.

CVSGs

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Speculation on the Delay in Issuing the U.S. v. Tohono O’odham Nation Opinion from SCOTUSBlog

Matthew L.M. Fletcher
Recall our speculation on the seeming delay in the issuance of the TON opinion? Here is some more speculation from today’s SCOTUSblog Live Blog.
9:50
Tom:

It’s possible that they won’t be the authors of those two decisions, however.  One might have lost a majority opinion.
9:51
Tom:

For example, Justice Sotomayor might have lost the majority in United States v. Tohono O’odham Nation.
9:51
Tom:

In that case, which took longer than expected to decide (it was the next-longest-outstanding November case), she wrote a detailed concurring opinion that would have decided the case more narrowly.  Justice Kennedy ended up writing the majority opinion.

Government Moves to Dismiss Goodeagle v. U.S. under SCt’s Decision in Tohono O’odham

Matthew L.M. Fletcher1 Comment

Here is that motion:

US Motion to Dismiss Goodeagle Claims

An excerpt:

It is now well-established that this Court lacks subject-matter jurisdiction to entertain a suit if the plaintiff has a suit in another court based upon substantially the same operative facts. Plaintiffs’ instant Complaint and the class action, currently pending before the District Court for the District of Columbia (“District Court”), Cobell, et al. v. Salazar, et al., No. 96-cv-1285, have asserted claims based on substantially the same operative facts. Thus, Congress, under 28 U.S.C. § 1500, has explicitly deprived this Court of jurisdiction to entertain a case containing claims that are for or in respect to claims which Plaintiffs have asserted in another pending case.

We reported the complaint here.

United States v. Tohono O’odham … in Haiku

Matthew L.M. Fletcher

Here.

Oh, and Madison County v. Oneida Indian Nation, too (here).

Perception Matched Reality in Timing of U.S. v. TON Opinion

Kate Fort

SCOTUSblog released its stat pack today, and U.S. v. TON was top of the list for the number of days between the argument and the opinion at 176 days.  The second closest was at 174 and the third at 169.  The fastest opinion release was 41 days.  The link to all of the stats is here, and here is the days-between-oral-argument-and-opinion pdf.

United States v. Eastern Shawnee Tribe GVR’d

Matthew L.M. Fletcher

As expected, the Supreme Court granted cert in United States v. Eastern Shawnee Tribe of Oklahoma for the purpose of vacating the Federal Circuit’s decision and remanding to that court for reconsideration in light of United States v. Tohono O’odham Nation.

SCOTUSblog commentary on US v. TON — “Apparent Disregard for Judicial Minimalism”

Matthew L.M. Fletcher

From SCOTUSblog:

The most striking feature of Tuesday’s opinion in United States v. Tohono O’odham Nation (No. 09-846) is the apparent disregard for judicial minimalism in Justice Kennedy’s opinion for the Court.  The Court, in an opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, held that 28 U.S.C. § 1500, which prohibits a suit in the Court of Federal Claims (CFC) on a claim “for or in respect to which” the plaintiff has a suit pending in another court, applies to suits that share operative facts, even if they request different relief.  The Court need not have decided that question, however, unless it confronted two suits with no remedial overlap, for precedent had already established that Section 1500 bars the new suit if the two suits share operative facts and request overlapping relief.

The Court’s opinion could therefore be characterized as abandoning judicial minimalism by refusing to decide the case on the narrowest possible grounds.  The opinion refuses to even mention the preliminary question on which the oral argument focused: whether the Tohono O’odham Nation’s two suits—one in the CFC seeking money damages for the government’s breach of trust while managing Nation assets, and the other in the U.S. District Court for the District of Columbia seeking an equitable accounting and an accompanying payment of any shortfall for the same breach of trust—do in fact seek overlapping relief.  If so, that question could have been dispositive – as it would have been for Justice Sotomayor, who filed an opinion concurring in the judgment that was joined by Justice Breyer.

Why would the Court decline to decide whether the two suits seek similar relief?  The opinion itself provides no particular reason, other than a desire to move past the preliminary question to clarify the scope of Section 1500:

To continue to reserve the question [of whether § 1500 bars suits with no remedial overlap] would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes.

But comparing different types of relief is not difficult:  as the concurrence points out, the CFC has been doing just that for almost fifty years in applying Section 1500.  Instead, it is likely that the Court wanted to avoid deciding whether an equitable order to pay money is the same as money damages.

One possible reason emerges when one remembers that a distinction between those two forms of relief is the foundation of the district court’s jurisdiction over any suits claiming money from the government.  According to 5 U.S.C. § 702, district courts can hear claims against the United States only if they “seek[] relief other than money damages.”  Claims for money damages, by contrast, must be brought in the CFC. After Bowen v. Massachusetts (1988), however, a plaintiff could sue the United States for money outside of the CFC so long as he asked for an equitable order to pay money.  Such a suit, the court reasoned, is distinct from a suit for money damages.  Subsequently, lower courts have applied that reasoning to extend Bowen and allow suits against the government for money in the district court for a variety of plaintiffs, from government contractors and employees to claimants under many government spending programs.

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Patricia Millett and James Meggesto Commentary on the Tohono O’odham Decision

Matthew L.M. Fletcher1 Comment

Download a pdf here (Tohono Oodham Nation decision analysis).

Here is the text:

Yesterday, the Supreme Court issued its decision in United States v. Tohono O’odham Nation, No. 09-846. The Court, by a vote of 5-2-1 (Justice Kagan recused) reversed the decision of the Court of Appeals for the Federal Circuit, and held that the Court of Federal Claims lacked jurisdiction over the Tohono O’odham Nation’s claims for monetary relief on its trust mismanagement claims. Justice Kennedy delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Sotomayor issued an opinion concurring in the judgment that was joined by Justice Breyer. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the decision as she was the Solicitor General during earlier proceedings in the case.

The case arose when the Tohono O’odham Nation filed back-to-back lawsuits seeking relief for numerous violations of trust and fiduciary obligations with respect to assets held in trust by the federal government. The Nation first filed suit in the United States District Court for the District of Columbia against the United States, seeking primarily equitable relief, including an accounting. That complaint also sought equitable monetary relief in the form of disgorgement and restitution. The next day, the Nation filed a second lawsuit in the Court of Federal Claims (CFC) seeking monetary damages for mismanagement of the same trust assets.

The Court of Federal Claims dismissed the action under 28 U. S. C. §1500 for want of jurisdiction. Section 1500 provides that:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.

The Court of Federal Claims held that the factual underpinnings for the Nation’s suit before it and the separate suit pending in federal district court were “for all practical purposes identical.” 79 Fed. Cl. 645, 656 (2007).

The Court of Appeals for the Federal Circuit reversed and held that the CFC retained jurisdiction because the two lawsuits sought distinct forms of relief. 559 F. 3d 1284 (2009). The Federal Circuit held that Section 1500 bars relief only if the claims in the two lawsuits both share operative facts and also seek overlapping relief. Because the court found no overlap in the relief the Nation requested from the two courts, the court of appeals held that the action was not barred by Section 1500.

The Supreme Court has now reversed, significantly limiting the ability of claimants—whether Tribes, government contractors, or property owners challenging unconstitutional takings—to obtain full relief against the United States government for the government’s violations of the law. The Supreme Court held that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Slip Op. at 9 (emphasis added). In so holding, the Court acknowledged that “in respect to a claim” could mean facts alone or facts coupled with some overlapping relief. The Court held, however, that the former interpretation was “more reasonable,” pointing to Congress’s provision in the next clause that the CFC would also lack jurisdiction over claims against “any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” 28 U. S. C. §1500. “Acting” “in respect to a cause of action,” the Court concluded, only made sense with respect to factual overlap because it referred to the timeframe before suit was even filed. Individuals cannot “act[]” in respect to particular forms of relief before litigation commences, the Court explained. Thus, the Court concluded, if the phrase “in respect to a cause of action” does not “embrace the concept of remedy, it is reasonable to conclude that” the similarly worded phrase “for or in respect to” a claim does not “embrace the concept of remedy” either. Slip Op. at 5.

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AP News Coverage of U.S. v. TON Opinion

Matthew L.M. Fletcher

Here.

United States v. Tohono O’odham Nation Decision

Kate Fort2 Comments

The Supreme Court released the decision in United States v. Tohono O’odham Nation today.  You can access the decision here. Justice Kennedy wrote the decision finding against the tribe. He was joined by Chief Justice Roberts, and Justice Scalia, Justice Thomas and Justice Alito. Justice Sotomayor wrote a concurrence, which Justice Breyer joined. Justice Ginsberg wrote the dissent. Justice Kagan took no part in the case.

I’m sure we’ll have more up throughout the day, but here’s the last paragraph of the opinion:

The holding here precludes the CFC from exercising jurisdiction over the Nation’s suit while the District Court case is pending. Should the Nation choose to dismiss the latter action, or upon that action’s completion, the Nation is free to file suit again in the CFC if the statute of limitations is no bar. In the meantime, and in light of the substantial overlap in operative facts between them, the two suits are “for or in respect to” the same claim under §1500, and the CFC case must be dismissed. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.