Arctic Slope Native Association, Ltd. v. Sebelius ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
ARCTIC SLOPE NATIVE ASSOCIATION, LTD.,
Appellant,
v.
KATHLEEN SEBELIUS,
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Appellee.
__________________________
2011-1485
__________________________
Appeal from the Civilian Board of Contract Appeals in
case nos. 190-ISDA, 289-ISDA, 290-ISDA, 291-ISDA, 292-
ISDA, and 293-ISDA, Administrative Judge Jeri Kaylene
Somers.
__________________________
Decided: November 9, 2012
__________________________
LLOYD B. MILLER, Sonosky, Chambers, Sachse, Miller
& Munson, LLP, of Anchorage, Alaska, argued for appel-
lant. With him on the brief was DONALD J. SIMON. Of
counsel on the brief were CARTER G. PHILLIPS and
JONATHAN F. COHN, Sidley Austin, LLP, of Washington,
DC.
ARCTIC SLOPE NATIVE ASSOC v. HHS 2
JACOB A. SCHUNK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director. Of counsel on the brief
were MELISSA JAMISON and SEAN DOOLEY, Senior Attor-
neys, Office of the General Counsel, United States De-
partment of Health and Human Services, of Washington,
DC.
__________________________
Before BRYSON, MAYER and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge BRYSON.
REYNA, Circuit Judge.
Arctic Slope Native Association, Ltd., (“ASNA”) ap-
peals a decision of the Civilian Board of Contract Appeals
(“Board”) dismissing ASNA’s breach-of-contract claim
under the Contract Disputes Act (“CDA”) as time-barred.
Because the CDA’s six-year statute of limitations should
have been equitably tolled, we reverse and remand.
I
ASNA is an inter-tribal consortium of seven federally
recognized tribes situated across the North Slope of
Alaska. In fiscal years 1996, 1997, and 1998, ASNA
contracted with the Department of Health and Human
Services, Indian Health Service (“IHS”) pursuant to the
Indian Self-Determination and Education Assistance Act
(“ISDA”) to operate a hospital in Barrow, Alaska. ISDA,
3 ARCTIC SLOPE NATIVE ASSOC v. HHS
as amended, requires the government to pay tribal con-
tractors’ contract support costs,1 i.e., costs that a federal
agency would not have incurred but which the tribes
reasonably incur in managing the programs. When the
government refused to pay the full contract support costs
sought by the tribes, the tribes sued.
A. Legal Landscape
In 1990, the Ramah Navajo Chapter filed a class ac-
tion in federal district court in New Mexico to recover
damages for the underpayment of contract support costs.
See Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d
1091 (D.N.M. 1999). Ramah challenged the government’s
1 25 U.S.C. § 450j-1(a)(2): “There shall be added to
the amount required by paragraph (1) contract support
costs which shall consist of an amount for the reasonable
costs for activities which must be carried on by a tribal
organization as a contractor to ensure compliance with
the terms of the contract and prudent management, but
which– (A) normally are not carried on by the respective
Secretary in his direct operation of the program; or (B) are
provided by the Secretary in support of the contracted
program from resources other than those under contract.”
25 U.S.C. § 450j-1(a)(3)(A): “The contract support
costs that are eligible costs for the purposes of receiving
funding under this Act shall include the costs of reimburs-
ing each tribal contractor for reasonable and allowable
costs of– (i) direct program expenses for the operation of
the Federal program that is the subject of the contract,
and (ii) any additional administrative or other expense
related to the overhead incurred by the tribal contractor
in connection with the operation of the Federal program,
function, service, or activity pursuant to the contract,
except that such funding shall not duplicate any funding
provided under section 106(a)(1) [subsec. (a)(1) of this
section].”
ARCTIC SLOPE NATIVE ASSOC v. HHS 4
methodology used to determine the applicable contract
support costs. The issue of exhaustion of administrative
remedies arose at the outset of the litigation. The gov-
ernment argued that the claims of the class were not
typical because while the class representative had ex-
hausted its administrative remedies, there was no show-
ing that other class members had done so. According to
the government, “the theory is that the exhaustion of
administrative remedies is jurisdictional and that if the
remedies have not been exhausted, the Court’s action
regarding the class would be without jurisdiction.” J.A.
137.
In 1993, Judge Hanson of the District Court of New
Mexico rejected the Government’s exhaustion of adminis-
trative remedies argument and certified the class. He
explained:
Plaintiff’s action does not concern a typical con-
tract dispute wherein issues of performance need
be addressed. If that were the case, the purposes
behind exhaustion of administrative remedies
would require that the contract claim first be
brought to the attention of an agency contracting
officer. Instead, Plaintiff’s action challenges the
policies and practices adopted by the BIA as being
contrary to the law and seeks to make systemwide
reforms. In such a case as this, exhaustion of ad-
ministrative remedies is not required. In light of
the above, it is not necessary that each member of
the proposed class exhaust its administrative
remedies under the Contract Disputes Act.
J.A. 319 (emphasis added).2 ASNA was a class member in
Ramah and received funds flowing from a partial settle-
2 On December 6, 2002, prior to the expiration of
ASNA’s claims in the Zuni litigation with respect to fiscal
5 ARCTIC SLOPE NATIVE ASSOC v. HHS
ment of that litigation. Like the plaintiffs in Ramah,
ASNA challenged the agency’s practices and procedures
concerning payout of support costs.
In the second class action—Cherokee Nation of Okla-
homa v. United States—the court denied class certifica-
tion in February 2001 because typicality, commonality,
and adequate representation were not met since the
contracts differed by tribe. 199 F.R.D. 357, 362 (E.D.
Okla. 2001). This action concerned IHS’s refusal to pay
tribes the full contract support costs because of an alleged
lack of available appropriations and the class, as de-
scribed, would have included contractors, like ASNA, who
had not yet presented claims to the contracting officer.
Specifically, it sought certification of a class including “all
Indian tribes and tribal organizations operating [Indian
Health Service] programs . . . authorized by the [ISDA]
. . . that were not fully paid their contract support costs
needs, as determined by [the Indian Heath Service], at
any time between 1988 and the present.” Id. at 360. The
court later ruled on the merits, and the merits decision,
not the denial of class certification, was appealed to the
U.S. Supreme Court, which rendered a decision on March
1, 2005. See Cherokee Nation v. Leavitt, 543 U.S. 631(2005). In reaching this conclusion, the court did not
discuss or rely upon the fact that some tribes had ex-
hausted their remedies while others had not.
years 1996, 1997, and 1998, the Ramah court entered an
order noting that the government would resist class
certification on at least one of the new claims and that
“decertification of [both claims] is a possibility.” Ramah
Navajo Chapter v. Babbitt, 250 F. Supp. 2d 1303, 1308
(D.N.M. 2002). The same decision also stated that “[a]
number of decisions have been announced . . . which are
harmful to the Class’[s] claims.” Id.ARCTIC SLOPE NATIVE ASSOC v. HHS 6
A third class action—Pueblo of Zuni v. United
States—was filed on September 10, 2001, in the District
Court of New Mexico and assigned to Judge Hanson, the
same judge who had granted class certification in Ramah.
467 F. Supp. 2d 1099, 1105 (D.N.M. 2006). The com-
plaint claimed that IHS improperly calculated contract
support costs, as alleged in Ramah, and failed to pay the
full amount owed, as alleged in Cherokee. Zuni sought to
certify a class of “all tribes and tribal organizations con-
tracting with IHS under the ISDA between fiscal years
1993 to the present.” Id.In December 2001, before Zuni moved for class certifi-
cation, the proceedings in Zuni were stayed pending the
conclusion of the appellate proceedings in Cherokee. Zuni
was then transferred to a different judge. After the stay
was lifted, the government moved to dismiss a portion of
the claims at issue in Zuni because the tribe had not first
submitted all of its claims to the contracting officer. The
district court granted the motion. Zuni, 467 F. Supp. 2d
at 1112. The court rejected Zuni’s purported reliance
upon the 1993 certification order in Ramah as justifying
its failure to exhaust its administrative remedies, noting
that “Plaintiff can hardly be said to rely on the oblique
argument that a class certification order in a separate
case allows Plaintiff to forego exhaustion of their claims
in this case.” ld. at 1114.
In May 2007, the district court denied Zuni’s motion
for class certification because “exhaustion under the CDA
is mandatory and jurisdictional” and “the existence of
unexhausted claims within the claims of the putative
class remains a jurisdictional defect, precluding class
certification.” Pueblo of Zuni v. United States, 243 F.R.D.
436, 442–43 (D.N.M. 2007). According to the district
court, “[t]here is no legal basis for a waiver of this re-
quirement for Plaintiff or any putative class member,
7 ARCTIC SLOPE NATIVE ASSOC v. HHS
given the express mandate for presentment with the
statutory language.” Id. The district court also found
that “[t]he terms and conditions of the tribal contracts
were sufficiently individualized so that the question of
whether all tribal contractors were underpaid becomes
one of the disputed issues,” id. at 448, and that “[t]he
nature of this kind of case with individualized contracts
does not lend itself to class litigation.” Id. at 446.
B. Procedural History
ASNA contends that it was a putative class member
in the foregoing class actions even though it did not
individually present its claims in writing to the contract-
ing officer within the CDA’s six-year statute of limita-
tions. As will be discussed in more detail below, the
Federal Circuit ultimately held that the ISDA was subject
to equitable tolling, but not statutory class action tolling,
and remanded the case to the Board to determine if the
statute of limitations should be equitably tolled as to
ASNA. The Board found that ASNA did not satisfy the
equitable tolling criteria. Whether the Board erred in
that determination is the narrow question presented in
this appeal.
On September 30, 2005, after the Supreme Court is-
sued its decision in Cherokee and while the Zuni class
action was pending, ASNA presented its CDA claims to
the IHS contracting officer. It is undisputed that, absent
equitable tolling, these claims had each expired as of the
date of their presentment to the contracting officer.
In its letter to IHS, ASNA argued that IHS failed to
meet its contractual and statutory obligations in two
ways. First, it failed to pay the full amount of ASNA’s
contract support costs. Second, it failed to include in the
calculation of those costs the full indirect contract support
costs by employing the same illegal calculation methodol-
ARCTIC SLOPE NATIVE ASSOC v. HHS 8
ogy that was struck down in Ramah. ASNA presented
arguments to the IHS that were similar to the underpay-
ment arguments it made to the court in Ramah and Zuni.
On August 21, 2006—almost a year before the district
court denied the motion for class certification in Zuni—
ASNA filed a complaint with the Board, alleging IHS’s
failure to pay the full contract support costs and to calcu-
late the costs correctly. The Board dismissed ASNA’s
claims as time-barred, reasoning:
ASNA’s failure to submit its FY 1996 through FY
1998 claims to the awarding official within six
years after they accrued, as required by section
605(a) of the CDA deprives this Board of jurisdic-
tion to consider the claims. We cannot suspend
the running of the six-year time limit any more
than we could suspend the requirements, also
found in section 605 that a claim must be submit-
ted to the contracting officer, that a claim must be
submitted in writing, and that a claim in excess of
$100,000 must be certified. In the absence of a
claim which meets all the requirements of section
605, we lack jurisdiction to consider an appeal.
J.A. 32.
ASNA appealed the Board’s decision to the Federal
Circuit. We affirmed the Board’s decision regarding
statutory class action tolling but held that equitable
tolling is available for claims brought under § 605(a) of
the CDA. We remanded the case to the Board for a de-
termination as to whether equitable tolling applied to
ASNA.
On remand, a Majority of the Board found on June 9,
2011 that ASNA had not met the criteria for equitable
tolling after reading Cherokee as requiring it to treat
9 ARCTIC SLOPE NATIVE ASSOC v. HHS
ASNA as a contractor and the contract as an ordinary
procurement contract.3 In reaching this conclusion, the
Board observed that prior to 1994, no statute of limita-
tions applied to the presentment of claims to the contract-
ing officer. Specifically, the six-year statute of limitations
took effect in 1994, one year after the district court
granted class certification in Ramah. Second, although
the Supreme Court had justified equitable tolling where a
defective pleading was involved, the complaint in Zuni
was not defective. Indeed, the district court did not
dismiss the Zuni complaint, and class members that had
complied with the presentment requirement could con-
tinue to litigate the claims set forth therein. The Majority
of the Board reasoned that since ASNA did not take the
actions required to be considered a purported class mem-
ber—i.e., timely present its claims to the contracting
officer—then equitable tolling did not apply. According to
the Majority, ASNA had a responsibility to investigate the
applicable legal landscape in pursuing its claims and to
make an independent and reasoned decision, rather than
relying upon Judge Hanson’s court order. The Majority
pointed out that ASNA had not established that the
conduct of its adversary caused it to miss the statutory
deadlines and determined that ASNA’s decision could not
turn on the presumed litigation position of an opposing
party.
The Majority was unconvinced by ASNA’s argument
that the special relationship between the government and
Indian tribes warranted application of equitable tolling.
As the Majority explained, “[t]he canon that statutes
should be interpreted for the benefit of the tribe does not
mean that a statute should be interpreted in a manner
3 It is worth noting that the Majority’s interpreta-
tion of Cherokee was issued almost five years after ASNA
filed its claims with the CDA in August 2006.
ARCTIC SLOPE NATIVE ASSOC v. HHS 10
divorced from the statute’s text and purpose.” ASNA App.
11a (citing U.S. v. Tohono O’odham Nation, 131 S. Ct.
1723 (2011)). The Majority reasoned that recognition of
tribes’ special status simply requires construing ambigu-
ous language in their favor, not ignoring the meaning and
import of clear statutory language. In distinguishing the
veterans’ cases relied upon by ASNA for its assertion that
equitable tolling was warranted given its special relation-
ship with the government, the Majority noted that ASNA
had competent and capable counsel throughout the litiga-
tion whereas many veterans proceed pro se. ASNA App.
13a.
In her dissent, Judge Steel wrote that the case should
be resolved in ASNA’s favor given the special relationship
between the government and Indian tribes, the canon of
construing the ISDA liberally, and the pertinent language
of the statute and contracts.
This appeal followed. We have jurisdiction under 28
U.S.C. § 1295(a)(10).
II
Because we have already determined that equitable
tolling may apply under § 605 of the CDA, the narrow
question presented in this appeal is whether the six-year
statute of limitations should have been equitably tolled as
to ASNA given the unique circumstances of the case.
Arctic Slope Native Ass’n, Ltd. v. Sebelius, 583 F.3d 785,
798 (Fed. Cir. 2009) (“ASNA I”).
A. Standard of Review
Where, as here, the facts are undisputed, a determi-
nation of whether the criteria for equitable tolling have
been met presents a question of law that we review de
novo. 41 U.S.C. § 7107(b); Former Employees of Sonoco
Prods. Co. v. Chao, 372 F.3d 1291, 1295 (Fed. Cir. 2004).
11 ARCTIC SLOPE NATIVE ASSOC v. HHS
B. ISDA and the CDA
Prior to 1988, the ISDA did not require the govern-
ment to pay the administrative costs that the tribes
incurred to operate the covered programs. ASNA I, 583
F.3d at 788. The 1988 amendments to the ISDA required
the government, instead of contractors, to provide funds
to pay the administrative expenses of covered programs.
Id. (citing statutory amendments). The ISDA amend-
ments made the CDA applicable to disputes concerning
self-determination contracts. 25 U.S.C. § 450m-1(d). As a
result, ISDA self-determination contractors can appeal an
adverse decision by a contracting officer on contract
disputes to the Civilian Board of Contract Appeals, see 41
U.S.C. § 606, or to the Court of Federal Claims. See 41
U.S.C. § 609(a)(1). In addition, the ISDA permits contrac-
tors to bring claims in district courts, an avenue of relief
that is generally unavailable to government contractors
under the CDA. ASNA I, 583 F.3d at 789 (citing 25
U.S.C. § 450m-1(a)).
In claims between the government and contractors,
the federal regulations discussing the CDA defines
“claim” as a written demand or assertion by one of the
contracting parties seeking the payment of money in a
sum certain, the adjustment or interpretation of contract
terms, or other relief arising under or relating to the
contract. 48 C.F.R. § 2.101. While a “claim” need not use
particular language to satisfy CDA requirements, the
contractor must submit in writing to the contracting
officer a clear and unequivocal statement that gives the
contracting officer adequate notice of the basis and
amount of the claim. SITCO Gen. Trading and Contract-
ing Co. v. U.S., 87 Fed. Cl. 506, 508 (Fed. Cl. 2009) (citing
Contract Cleaning Maint. Inc. v. United States, 811 F.2d
586, 592 (Fed. Cir. 1987)). The CDA requires a contractor
to present the written claim to the contracting officer
ARCTIC SLOPE NATIVE ASSOC v. HHS 12
within six years of a claim’s accrual before bringing suit.
41 U.S.C. § 7103(a). The six-year statute of limitations at
issue here was implemented in 1994 when Congress
passed the Federal Acquisition Streamlining Act. Prior to
1994, no statute of limitations applied to the presentment
of claims to a contracting officer.
C. Equitable Tolling
Equitable tolling hinges upon the particular equities
of the facts and circumstances presented in each case. See
ASNA I, 583 F.3d at 798, 800. It “permits courts to mod-
ify a statutory time limit and ‘extend equitable relief’
when appropriate.” Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990). Equitable tolling applies where the
litigant proves: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Holland v.
Florida, 130 S. Ct. 2549, 2553 (2010). The exercise of
equity powers must be made on a case-by-case basis, id.
at 2564, and equitable relief is typically extended only
sparingly. See Cloer v. Sec’y of Health & Human Servs.,
654 F.3d 1322, 1344–45 (Fed. Cir. 2011) (en banc). Equi-
table tolling does not apply to garden variety claims of
excusable neglect, such as an attorney miscalculation
leading to a missed deadline. Holland, 130 S. Ct. at 2564.
D. Analysis
ASNA argues that equitable tolling should apply be-
cause it did not sleep on its rights and it reasonably relied
upon the Zuni class action as well as its reasonable inter-
pretation of the then-existing legal landscape to conclude
that it need not present its claims to the contracting
officer or file its own civil suit in order to preserve its
claims.
13 ARCTIC SLOPE NATIVE ASSOC v. HHS
The government counters that ASNA failed to take
timely action to diligently pursue its rights and that no
extraordinary circumstance prevented it from doing so.
According to the government, ASNA’s reliance on Ramah
was misplaced because the CDA’s six-year statute of
limitations was not in effect when the district court
granted class certification in Ramah, and the claims in
Ramah substantially differed from ASNA’s claims. The
government argues that it was foreseeable that the Zuni
class might be denied certification, especially since the
proposed class in Cherokee (involving claims nearly iden-
tical to ASNA’s), was not certified, and the district court
in Ramah inferred that decertification was possible in
light of the new cost claims added to Ramah after class
certification was granted as to the calculation methodol-
ogy claim. The government contends that there was no
change in the law because the grant of class certification
in Ramah hinged upon the fact that the case challenged
system-wide policies and practices, and therefore, did not
concern a typical contract case. The government argues
that ASNA was aware of the pertinent legal landscape
because ASNA’s President “was kept informed of general
litigation activities concerning contract support costs,
including activities in ongoing class action lawsuits.” J.A.
436.
We agree with ASNA that equitable tolling should
apply and remand to the Board for proceedings consistent
with this opinion.4 There is no dispute that ASNA relied
on the Ramah, Cherokee, and Zuni litigation in deciding
that it was not required to present its claims to the con-
4 We are not bound by and therefore decline to fol-
low the reasoning recently employed by a district court in
a similar case. See Menominee Indian Tribe of Wis. v.
United States, 2012 U.S. Dist. LEXIS 8108 (D.D.C. Jan.
24, 2012) (refusing to apply equitable tolling).
ARCTIC SLOPE NATIVE ASSOC v. HHS 14
tracting officer within the six-year limitations period. The
critical questions are whether ASNA pursued its rights
diligently even though it did not present and whether its
reliance on the then-existing legal landscape in deciding
not to present constituted an “extraordinary circum-
stance” sufficient to warrant equitable tolling of the filing
deadline.
Here, the Zuni complaint was filed on behalf of “all
tribes and tribal organizations contracting with IHS
under the ISDA between fiscal years 1993 to the present.”
The parties agree that ASNA was such a tribe and had
contracted with the ISDA during that period. The Zuni
complaint sought damages for contract support under-
payments and defective cost calculation methodology– the
same claims ASNA wished to assert. The class certifica-
tion description did not mention exhaustion of adminis-
trative remedies. Zuni was assigned to the same judge in
the same district court that had certified a similar class in
Ramah in 1993 involving the same issues and held that
class members did not have to satisfy exhaustion re-
quirements to participate in the class.
ASNA’s President was aware that “ASNA’s claims
had already succeeded in Ramah without ASNA filing its
own claims.” J.A. 437. As he explained, “[s]ince the Zuni
case covered all of ASNA’s claims, I concluded that the
most efficient course of action was to remain in the Zuni
case, just as ASNA has remained in the Ramah case,
because ASNA’s claims had already succeeded in Ramah
without ASNA filing its own claims, and because filing
our own claims could apparently remove ASNA from the
new Zuni class.” 5 Id. Monitoring and reasonably inter-
5 ASNA appears to have alleged that the govern-
ment implied that ASNA’s exhaustion of its administra-
tive remedies might have imperiled its chances of being a
15 ARCTIC SLOPE NATIVE ASSOC v. HHS
preting applicable legal proceedings, judicial order and
opinions, and taking action as necessary does not consti-
tute sleeping on one’s rights, particularly in the class
action context where parties who believe they are puta-
tive class members often remain passive during the early
stages of the litigation allowing the named class represen-
tatives to press their claims.
ASNA participated in the Ramah and Zuni litiga-
tions, including taking action to receive its share of set-
tlement proceeds from Ramah. Once the Zuni stay was
lifted in 2005, the government indicated that it would
challenge the holding in Ramah that presentment was
unnecessary to be a class member. In response, ASNA
swiftly and diligently presented its claims to the contract-
ing officer in September 2005– without waiting for a court
ruling on the presentment issue. ASNA took further
precautionary steps when it filed a complaint with the
Board in 2006. Only after the case was transferred to a
different judge in 2007 did the district court explicitly
exclude non-presenters like ASNA from the putative
class.
Although the District Court of Oklahoma had denied
class certification in Cherokee as of February 2001, that
decision was not controlling upon the District Court of
New Mexico where Zuni was pending. The only control-
ling, on-point authority on that court at that time (2007)
was Ramah, in which the same judge had explicitly held
that a putative class member need not exhaust its admin-
class member. In any event, ASNA appears to have
conceded at oral argument that it did not rely upon this
argument on appeal, and we do not rely upon it in reach-
ing our decision. Oral Argument, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/2012-05-07/all.
ARCTIC SLOPE NATIVE ASSOC v. HHS 16
istrative remedies to be a member of the class.6 The facts
and circumstances on which Judge Hanson based his
order were similar, if not identical to, the operative facts
and circumstances on which the Zuni complaint was
based. We hold that given the existence of the unambigu-
ous court order that specifically addressed the exhaustion
of remedies issue and the fact that ASNA diligently
pursued its rights by monitoring the relevant legal land-
scape, ASNA took reasonable, diligent, and appropriate
action as the legal landscape evolved.
This result is not fundamentally unfair to the gov-
ernment because filing of the Zuni complaint put IHS on
notice of the exact nature and scope of ASNA’s claims.
“Limitations periods are intended to put defendants on
notice of adverse claims and to prevent plaintiffs from
sleeping on their rights.” Crown, Cork & Seal Co., Inc. v.
Parker, 462 U.S. 345, 353 (1983). Having adequate notice,
the government was aware of its need to preserve evi-
dence. This is especially true where, as here, the evidence
consists of documents in the administrative record, and
there are few, if any, concerns about fading witness
memory.
The Supreme Court and Congress have repeatedly
recognized the special relationship between the govern-
ment and Indian tribes. E.g., United States v. Mitchell,
463 U.S. 206, 225 (1983); 25 U.S.C. § 450a(b) (reaffirming
the federal government’s “unique and continuing relation-
6 Although not dispositive, we note that some cir-
cuits have equitably tolled a statute of limitations when a
party detrimentally relied on ambiguity in law or control-
ling precedent that was later resolved against the party or
overturned. See, e.g., York v. Galetka, 314 F.3d 522, 525
(10th Cir. 2003); Harris v. Carter, 515 F.3d 1051, 1056–57
(9th Cir. 2008).
17 ARCTIC SLOPE NATIVE ASSOC v. HHS
ship with, and responsibility to, individual Indian tribes
and to the Indian people as a whole”). Consequently, we
must judge the government’s conduct with the Indian
tribes by “the most exacting fiduciary standards.” Semi-
nole Nation v. United States, 316 U.S. 286, 297 (1942).
This special relationship is especially crucial under the
ISDA, which Congress passed to facilitate and promote
economic growth and development amongst the Indian
tribes. See generally S. Rep. No. 100-274, at 4–7 (1987)
(detailing federal policies encouraging Indian self-
determination and tribal economic development). The
Select Committee on Indian Affairs recognized that self-
determination contracts supporting local government
services on Indian lands were “essential to the success of
Indian economic development efforts.” Id. at 7. Although
not dispositive, the existence of the special relationship
between the government and Indian tribes supports our
holding.
In sum, the previous class actions involved similar is-
sues and parties, and put the government on notice of the
general nature and legal theory underlying ASNA’s
claims. ASNA pursued its rights by monitoring the legal
landscape and taking action as appropriate. ASNA rea-
sonably relied upon controlling authority, which held that
it did not need to exhaust administrative remedies to be a
class member. Our conclusion that equitable tolling
applies is informed by these unique facts and extraordi-
nary circumstances, taken together with the obligations
flowing from the special relationship between the gov-
ernment and Indian tribes. For the foregoing reasons, we
reverse and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED
ARCTIC SLOPE NATIVE ASSOC v. HHS 18
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
__________________________
ARCTIC SLOPE NATIVE ASSOCIATION, LTD.,
Appellant,
v.
KATHLEEN SEBELIUS, SECRETARY OF HEALTH
AND HUMAN SERVICES,
Appellee.
__________________________
2011-1485
__________________________
Appeal from the Civilian Board of Contract Appeals in
case nos. 190-ISDA, 289-ISDA, 290-ISDA, 291-ISDA, 292-
ISDA, and 293-ISDA, Administrative Judge Jeri Kaylene
Somers.
__________________________
BRYSON, Circuit Judge, dissenting.
The question before us boils down to whether the Arc-
tic Slope Native Association (“ASNA”) was diligent in
pursuing its breach of contract claim. The majority
believes that it was; I believe that it was not.
I
The Supreme Court has held that a litigant seeking
equitable tolling “is entitled to equitable tolling only if he
shows (1) that he has been pursuing his rights diligently,
ARCTIC SLOPE NATIVE ASSOC v. HHS 2
and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, 130
S. Ct. 2549, 2562 (2010), citing Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). The Court has allowed equitable
tolling “where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been
induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass.” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 & n.3 (1990). Neither of
those conditions is present here. ASNA does not suggest
that its failure to present its claims on a timely basis was
the result of government misconduct, and this case does
not involve the filing of a defective pleading, such as a
pleading filed in the wrong court. E.g., Burnett v. N.Y.
Cent. R.R. Co., 380 U.S. 424 (1965); Herb v. Pitcairn, 325
U.S. 77 (1945). Moreover, although the Supreme Court in
Irwin cited American Pipe & Construction Co. v. Utah,
414 U.S. 538 (1974), as an example of a case in which the
timely filing of a defective class action tolled the limita-
tions period as to individual claims of purported class
members, see 498 U.S. at 96 n.3, it has already been
determined that class action tolling is unavailable to
ASNA. In Arctic Slope Native Ass’n v. Secretary of Health
& Human Services, 583 F.3d 785, 795 (Fed. Cir. 2009)
(“Arctic Slope I”), we rejected ASNA’s claim that it is
entitled to class action tolling based on its expectation
that it would be a class member in the Zuni litigation, so
that avenue of relief is closed.
II
In my view, ASNA did not exercise reasonable dili-
gence to protect its rights. ASNA could have, and should
have, presented its claims to the contracting officer within
six years of their accrual, for two reasons. First, although
3 ARCTIC SLOPE NATIVE ASSOC v. HHS
ASNA claims that it relied on the class certification in the
Ramah litigation, ASNA had two indications, prior to the
expiration of the six-year limitations period, that certifi-
cation of the class in Ramah may have been unusual: (1)
the Ramah court itself suggested, as the case evolved and
certain claims were added (namely, claims alleging that
the tribes’ full contract support costs should be paid), that
the continued appropriateness of a class action was
questionable, and (2) the district court in the Cherokee
case denied class certification on claims essentially iden-
tical to those presented in Zuni. Second, it would have
been very easy for ASNA simply to present its claims to a
contracting officer and comply with the statutory pre-
sentment requirement.
The indications that the Ramah certification may
have been questionable would have led a reasonably
diligent party to file its claims with the contracting officer
before they expired. Approximately a decade after the
Ramah complaint was filed, the Ramah plaintiffs added
new claims similar to those in the Cherokee and Zuni
cases. On December 6, 2002, the Ramah court entered an
order noting that the government would resist class
certification on at least one of the new claims and that
“decertification of [both claims] is a possibility.” Ramah
Navajo Chapter v. Norton, 250 F. Supp. 2d 1303, 1308
(D.N.M. 2002). And in Cherokee, which involved claims
essentially the same as those presented in Zuni, the
district court denied class certification in February 2001,
prior to the expiration of ASNA’s claims. Although the
court in that case denied certification because individual
questions predominated over class questions, the court
noted that the government had argued that certification
was inappropriate because the proposed class “fail[ed] to
exclude putative class members whose claims in this case
are barred by the six-year general statute of limitations.”
ARCTIC SLOPE NATIVE ASSOC v. HHS 4
Cherokee Nation of Okla. v. United States, 199 F.R.D. 357,
362 (E.D. Okla. 2001).
ASNA nevertheless claims that “[t]he undisputed evi-
dence is that ASNA was ‘surprised’ to learn that the
government [in 2005 after the Supreme Court’s decision
in Cherokee Nation v. Leavitt, 543 U.S. 631 (2005)] was
insisting that every tribal contractor had to have indi-
vidually presented its own claims.” ASNA claims it was
surprised “because in Ramah [the district judge] had
already ruled to the contrary, and because, based on that
ruling, over $100 million dollars had already been paid to
Ramah class members like ASNA who had never pre-
sented their claims.” Even if ASNA truly was surprised,
the surprise can be attributed to—at best—negligence,
which is “not a basis for equitable tolling.” See Holland,
130 S. Ct. at 2573. ASNA was or should have been aware
of the statute requiring exhaustion within six years.
ASNA was or should have been aware of the government’s
position that claimants who had failed to exhaust were
not eligible to be members of the classes in Ramah and
Cherokee. Finally, ASNA was or should have been aware
of the indications in both Ramah and Cherokee that the
class in Zuni might not be certified.
The fact that the district judge in Ramah had previ-
ously held that presentment was not necessary in that
case does not save ASNA here. Ramah was a different
case and, at the time of the decision on which ASNA
relies, that case did not involve claims similar to those
presented by the plaintiffs in Cherokee and Zuni. Addi-
tionally, after the judge certified the class in Ramah, the
six-year limitations period was added to the statutory
exhaustion requirement. Thus, in addition to the fact
that Ramah was a different case with different claims,
the judge in Ramah was operating under a different
5 ARCTIC SLOPE NATIVE ASSOC v. HHS
statutory framework at the time class certification was
granted than was the judge who denied class certification
in Zuni. Accordingly, a reasonably diligent party would
have inferred that Zuni was not likely to proceed in the
same manner as Ramah.
The diligence issue is also influenced by the fact that
very little effort would have been required for ASNA to
present its claims to the contracting officer. In Arctic
Slope I, this court noted that the claim letter submissions
to the contracting officer “need not be elaborate.” 583
F.3d at 797. The letters in the record consist of approxi-
mately two typewritten, single-spaced pages for each
fiscal year. The letters for each year appear to be identi-
cal except for the amount of the claimed damages. It
seems reasonable to assume that anyone familiar with
the situation could have prepared the letters with mini-
mal expenditure of time and effort. The damages figure
itself appears to be the only element of the letters that
required any effort to derive. However, ASNA presuma-
bly would have had to present the damages figures to the
district court in Zuni had its case proceeded there, so
there was no added burden on ASNA in having to obtain
those figures. Accordingly, a prudent course would have
been for ASNA to prepare and submit the letters prior to
the expiration of its claims, even if it believed its partici-
pation in the Zuni class might ultimately make the letters
unnecessary. ASNA knew or should have known that the
statute required exhaustion, and ASNA knew or should
have known that the government was seeking to enforce
the statute. With that knowledge, a reasonably diligent
party would have prepared and presented the letters prior
to the expiration of the six-year period.
Even if ASNA’s conduct were regarded as satisfying
the diligent pursuit of rights prong of Holland, nothing in
ARCTIC SLOPE NATIVE ASSOC v. HHS 6
ASNA’s presentation suggests that this case satisfies
Holland’s second prong, which requires that in addition to
demonstrating diligence, the party claiming equitable
tolling against the government must show that “some
extraordinary circumstance stood in his way and pre-
vented timely filing.” Nor has the majority pointed to any
facts that would suffice to meet that exacting standard.1
ASNA’s other arguments for applying equitable toll-
ing are not convincing. First, ASNA contends that the
government is not likely to be prejudiced by its failure to
file its claims on a timely basis, but even assuming that to
be the case, the absence of prejudice does not trigger the
right to equitable tolling. See Baldwin Cnty. Welcome
Center v. Brown, 466 U.S. 147, 152 (1984) (“Although
absence of prejudice is a factor to be considered in deter-
mining whether the doctrine of equitable tolling should
apply once a factor that might justify such tolling is
identified, it is not an independent basis for invoking the
doctrine and sanctioning deviations from established
procedures.”). Second, ASNA argues that equitable
tolling is warranted because Indian tribes are disadvan-
taged and protected plaintiffs. This court, however, has
specifically rejected that argument, noting that “statutes
of limitations are to be applied against the claims of
Indian tribes in the same manner as against any other
litigant seeking legal redress or relief from the govern-
1 The United States District Court for the District
of Columbia has agreed that equitable tolling is unavail-
able to a party in essentially the same position as ASNA.
Menominee Indian Tribe v. United States, 841 F. Supp. 2d
99 (D.D.C. 2012). While that decision is, of course, not
binding on us, it contains a detailed analysis of the Su-
preme Court’s Irwin and Holland decisions and, as the
only precedent dealing with the precise issue before us, is
entitled to careful consideration.
7 ARCTIC SLOPE NATIVE ASSOC v. HHS
ment.” Hopland Band of Pomo Indians v. United States,
855 F.2d 1573, 1576 (Fed. Cir. 1988).
In sum, I believe that a reasonably diligent party in
ASNA’s position would have presented its claims to a
contracting officer before the six-year limitations period
expired. Moreover, in this case there were no “extraordi-
nary circumstances [that] stood in [ASNA’s] way and
prevented timely filing.” Holland, 130 S. Ct. at 2562. I
would therefore affirm the decision of the Board holding
ASNA’s claims to be time-barred.