Menominee Indian Tribe of Wisconsin v. United States of America, et al.

In this case, the Court will decide whether a plaintiff filing an ISDA claim under the CDA warrants equitable tolling of the statute of limitations based on the two-pronged test outlined in Holland v. Florida. In Holland, the Court determined that equitable tolling was available when claimants: (1) demonstrated proper diligence in pursuing their rights, and (2) had some “extraordinary circumstance” preventing them from filing a claim in a timely manner. The Tribe contends that the Holland test is satisfied by a claimant who relied in good faith on the belief he or she benefitted from tolling of the statute of limitations due to other pending litigation, and as a result, passed on opportunities to bring his or her own claim via administrative presentment. Moreover, the Tribe asserts that the Holland test should be applied holistically in the spirit of equity and consider the entirety of the claimant’s situation in order to avoid what the Court decried in Holland as a “rigid per se approach” to equitable tolling. On the other hand, the United States asserts that a “miscalculation” in litigation strategy to not seek class action certification cannot be a basis for satisfying the Holland test, noting that the test’s extraordinary circumstance prong requires a much more significant obstacle or impediment to timely litigation.

SATISFYING THE DILIGENCE PRONG OF THE HOLLAND TEST

The Tribe rejects this wholesale focus on the Holland test’s extraordinary circumstance prong as a disservice to the principles of equity, arguing that the diligence prong must be considered alongside any extraordinary circumstances to reflect the totality of the claimant’s particular situation. Pointing to the jurisprudence that led to the Court’s decision in Holland, the Tribe cites Irwin v. Dep’t of Veteran Affairs, in which the Court accepted that extraordinary circumstances were required for equitable tolling only when a claimant was diligently pursuing his or her rights in the meantime, to illustrate that the two prongs are inexorably intertwined. With respect to the diligence aspect, the Tribe maintains that reliance on the Cherokee Nation series of cases, ending with Cherokee Nation of Okla. v. Leavitt, before filing a CDA claim could be construed as proper diligence because the reliance was in good faith on what amounted to be a defective pleading. Although the plaintiffs in Cherokee Nation were ultimately unsuccessful, the Tribe nevertheless asserts that monitoring the contemporaneous litigation before committing to a separate claim—fearing adverse or conflicting legal precedent if they filed a claim at an imprudent time—constitutes proper diligence for the purposes of equitable tolling.

Although the United States asserts that a failure to prove the extraordinary circumstances prong would be fatal to the Tribe’s case in and of itself, the United States also claims that merely monitoring the preexisting litigation cannot be considered adequate diligence. As the claim procedures necessary to avoid the statute of limitations could have been met easily, the United States purports that a failure to do so, regardless of the contemporary legal climate, is damning to any notion of proper diligence. Indeed, the United States compares the Tribe, which waited two years after the expiration of the statute of limitations in full knowledge of that fact to file its claim, unfavorably in this respect to the plaintiff in Holland, who filed his own pro se petition the same day he discovered his attorney’s failings. As a result, the United States avers that under historical equity practices, allowing equitable tolling despite laches would be highly inappropriate. Finally, the United States points to the Court’s prior jurisprudence to show examples of the two prongs being considered as separate and discrete requirements for equitable tolling, although the United States contends that the Tribe fails both prongs however they are considered.

DEFINING THE HOLLAND TEST’S “EXTRAORDINARY CIRCUMSTANCES” PRONG

The Tribe asserts that its limited resources to pursue all avenues of litigation and the unique legal climate surrounding ISDA litigation satisfied the extraordinary circumstance test. With respect to the legal climate at the time, the Tribe argues that its only guidance prior to Cherokee Nation regarding class certification was Ramah Navajo Chapter v. Lujan, in which the Tenth Circuit approved certification for class members undertaking contract support litigation despite not having met the CDA presentment requirements. As a result, the Tribe contends that it was right to believe that presentment was not required for certification in the class for Cherokee Nation, only being disabused of this notion by Pueblo of Zuni v. United States, in which the district court denied class certification for tribal contractors bringing contract support claims. To explain why it did not seek presentment regardless of pending litigation, the Tribe points to its limited financial resources, painting its decision to not pursue litigation as calculated since other tribes were litigating the same issues in several federal courts; and, while presentment was in theory simple, it would have incurred significant costs. The Tribe also posits that its decision made good legal sense from a strategic perspective: assuming that the Tribe’s reliance on Cherokee Nation was correct, filing a presentment claim would have subjected the Tribe to an even shorter statute of limitations.

The United States dismisses the Tribe’s reasoning for its actions, contending that the “miscalculation” of relying on Cherokee Nation was not an extraordinary circumstance but rather a self-inflicted injury. To illustrate this, the United States argues that the Tribe could not infer that it was a member of the putative class in Cherokee Nation without actually presenting its own claim, the mere fact that other tribes were litigating the same issue not absolving the Tribe of this requirement. Moreover, the United States cites a broad spectrum of prior jurisprudence supporting its premise that when presentment is a requirement of a suit, those who do not undergo presentment cannot be counted as a claimant in the action. The United States also attacks the Tribe’s decision to simply monitor the flow of litigation, claiming that waiting four years to file suit after Cherokee Nation’s class certification was denied could hardly be considered equitable for the purposes of tolling. Building on this, the United States avers that the Tribe’s reliance on Ramah, an “unpublished, interlocutory district court decision,” was done at its own peril, and the sparseness of the legal guidance on the matter should have led the Tribe to be forthright with its claims instead of reserved.Lastly, the United States rejects the Tribe’s claims of financial difficulties by pointing to the Equal Access to Justice Act as a means by which the Tribe could have recouped the administrative costs of presentment.

LOOKING TO OTHER RELEVANT FACTORS FOR DETERMINING EQUITABLE TOLLING

Working from its prior claim of the Holland test as holistic, the Tribe argues that other equitable factors, even those that cannot be independent bases for equitable tolling, should be considered relevant in the tolling analysis. The first factor the Tribe points to is the lack of prejudice to the federal government if tolling is permitted. The Tribe contends that since the government has been on notice of the Tribe’s claim since 1999 and the beginning of the Cherokee Nation series of cases, no prejudice exists. Furthermore, the Tribe notes that as its case is based solely on documentary evidence such as contracts, funding agreements, and so forth instead of witnesses, the passage of time does not prejudice the government’s defense. The Tribe maintains that the second factor is “some peculiar confidential or fiduciary relation between the parties” that has historically been a part of equitable analysis, and the federal-tribal relationship is one involving unique obligations that should be considered relevant with respect to tolling.

The United States contends that each of the additional equitable factors the Tribe posits as relevant are without merit. The United States argues that prejudice can only be considered in an equitable analysis after identifying an extraordinary circumstance that could trigger tolling. This notwithstanding, the United States claims that there would be prejudice from tolling because there was no presentment to indicate that the Tribe was part of the Cherokee Nation putative class, rendering void any notion that the government was put on notice as to the Tribe’s claims. As for the federal-tribal relationship, the United States acknowledges that the ISDA points to the “unique and continuing relationship” between the federal government and the various Native American tribes. However, the United States asserts that there is nothing in the statute that confers additional rights upon the Tribe as a result, and points to prior jurisprudence in which statutes of limitations are applied to the Indian tribes in the same manner as any other litigant.