Menominee Indian Tribe v. United States ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2014 Decided September 2, 2014
No. 12-5217
MENOMINEE INDIAN TRIBE OF WISCONSIN,
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00812)
Geoffrey D. Strommer argued the cause for appellant.
With him on the briefs was Marsha K. Schmidt. F. Michael
Willis entered an appearance.
Donald E. Kinner, Assistant Director, U.S. Department
of Justice, argued the cause for appellees. With him on the
brief was Stuart F. Delery, Assistant Attorney General.
Jeanne E. Davidson, Attorney, entered an appearance.
Before: GARLAND, Chief Judge, and TATEL and PILLARD,
Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Federal law requires that a claim
for breach of a self determination contract between an Indian
Tribe and a federal agency be filed with a contracting officer
at the agency within six years of the claim’s accrual. The
Menominee Indian Tribe of Wisconsin filed claims in 2005
against the Department of Health and Human Services for
unpaid contract support costs that accrued from 1996 through
1998—more than six years earlier. This case requires us to
determine whether, pursuant to the doctrine of equitable
tolling, the Tribe may sue even though the statute of
limitations has lapsed. Equitable tolling is only available to a
party who can show, inter alia, that “‘some extraordinary
circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Menominee
Tribe identifies two circumstances that it suggests are
“extraordinary” under Holland. First, the Tribe contends that
it did not file timely claims because it believed that, as a
member of a federal class action filed by another tribe, it was
entitled to a different form of tolling—class-action tolling—
that it believed afforded it two additional years beyond the
statutory limitations period. Second, the Menominee Tribe
contends that adverse legal precedent (which has since been
reversed) led it to believe during the limitations period that its
claims had no hope of success, so the Tribe refrained from the
apparently futile act of filing them. We conclude that the
legal misunderstandings and tactical mistakes the Tribe has
identified here, however, do not amount to “extraordinary
circumstance[s]” justifying equitable tolling. The Menominee
Tribe’s claims are thus barred by the statute of limitations.
3
I.
Between 1995 and 2004, the Menominee Indian Tribe of
Wisconsin (“the Menominee Tribe” or “the Tribe”) provided
healthcare services to its members pursuant to a self
determination contract with the Secretary of Health and
Human Services (HHS). Menominee Indian Tribe of Wis. v.
United States (Menominee I), 539 F. Supp. 2d 152, 153
(D.D.C. 2008). The Indian Self Determination and Education
Assistance Act, 25 U.S.C. § 450 et seq. (2012) (“ISDA” or the
“Act”), authorizes such contracts to encourage tribal
participation in, and management of, programs that would
otherwise be administered on Indian Tribes’ behalf by the
Department of the Interior and HHS. See id. §§ 450a, 450f.
The Act requires the Secretary of the Interior and the
Secretary of HHS to turn over direct operation of certain
federal Indian programs to any Indian tribe that wishes to run
those programs itself. See id. § 450f(a); see also
id. § 450a(b). A “self determination contract” is the vehicle
for transferring those programs. Id. § 450b(j).
Pursuant to a self determination contract, the government
agrees to pay a participating tribe what it would have cost the
federal agency to provide the services had the agency
implemented the program itself. See id. § 450j-1(a)(1). Since
1988, the Act has also required that tribal contractors be
reimbursed for “contract support costs”—additional
reasonable overhead and other specified indirect costs that
tribes incur. Id. § 450j-1(a)(2), (3); see generally ISDA
Amendments of 1988, Pub. L. No. 100-472, § 201, 102 Stat.
2285 (“1988 Amendments”); S. Rep. No. 100-274, at 8-13
(1987). Tribes and the government negotiate the services and
the attendant contract support costs through annual funding
agreements, which become part of their self determination
contracts. See 25 U.S.C. § 450l(c).
4
Parallel but mutually exclusive paths for resolving
disputes relating to self determination contracts are set forth
in overlapping provisions of the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109,1 and the ISDA,
25 U.S.C. § 450m-1(a), (d). Pursuant to the CDA, a
contractor, such as an Indian tribe seeking underpaid contract
support costs, must make a claim in writing to a contracting
officer at the relevant agency before it may sue in court. See
41 U.S.C. § 7103(a). The demand need not be detailed, and
may consist of a short written statement outlining the basis of
the claim, estimating damages, and requesting a final
decision. See M. Maropakis Carpentry, Inc. v. United States,
609 F.3d 1323, 1328 (Fed. Cir. 2010); see also Arctic Slope
Native Ass’n v. Sebelius (Arctic Slope I), 583 F.3d 785, 797
(Fed. Cir. 2009) (“[S]ubmissions to the contracting officer
need not be elaborate.”). If the contracting officer denies the
claim, the tribe may then follow one of two paths: (1) under
the CDA, the tribe may appeal administratively within the
agency or directly to the Court of Federal Claims, and then to
the Court of Appeals for the Federal Circuit,
41 U.S.C. § 7104(a), (b)(1); or (2) under the ISDA, file a
claim in any federal district court with jurisdiction over the
relevant agency, 25 U.S.C. § 450m-1(a). See Menominee
Indian Tribe of Wisconsin v. United States (Menominee II),
614 F.3d 519, 521-22 (D.C. Cir. 2010).2 Since 1994, the
1
The CDA was codified at 41 U.S.C. §§ 601-13 during the years at
issue in this case. The CDA has since been recodified and
renumbered. See 41 U.S.C. §§ 7101-09. In this opinion, we will
cite to the current codification.
2
Both paths require that a party submit a claim to a contracting
officer at the relevant agency before taking further steps. See
41 U.S.C. § 7103(a); 25 U.S.C. § 450m-1(d) (incorporating the
CDA’s procedural requirements into the ISDA).
5
CDA has also required that all claims related to government
contracts be submitted to a contracting officer within six years
of the accrual of the claim. Arctic Slope Native Ass’n, Ltd. v.
Sebelius (Arctic Slope II), 699 F.3d 1289, 1295 (Fed. Cir.
2012); Menominee II, 614 F.3d at 521.
The ISDA requires self determination contracts to contain
what has proven to be a contentious proviso: that full payment
of contract support costs is “subject to the availability of
appropriations.” 25 U.S.C. § 450j-1(b); see also Salazar v.
Ramah Navajo Chapter, 132 S. Ct. 2181, 2187 (2012). Tribes
and federal agencies have disputed the meaning of that phrase
for more than 20 years. Throughout the 1990s, the
Departments of Interior and HHS, the two principal agencies
that enter self determination contracts with Tribes that include
contract support costs, read that phrase as authorizing them to
pay less than the full amount of a tribe’s contract support
costs even when Congress had appropriated enough
unrestricted funds to the agencies to fully cover those costs.
See Salazar, 132 S. Ct. at 2187-89; U.S. Gov’t Accountability
Office, GAO/RCED-99-150, Indian Self-Determination Act:
Shortfalls in Indian Contract Support Costs Need to Be
Addressed 3-4, 32-33 (1999). As a result of pervasive
reimbursement shortfalls, tribes cut ISDA services to tribal
members, diverted resources from non-ISDA programs, and
even forwent certain contract opportunities, hindering their
progress toward self determination. U.S. Gov’t
Accountability Office, supra, at 3-4.
Tribes also began to pursue individual and collective
legal claims against the federal government seeking recovery
of unpaid contract support costs. See, e.g., Cherokee Nation
of Okla. v. Leavitt, 543 U.S. 631 (2005); Shoshone-Bannock
Tribes of Fort Hall Reservation v. Sec’y, Dep’t of Health &
Human Servs., 279 F.3d 660 (9th Cir. 2002); Babbitt v.
6
Oglala Sioux Tribal Pub. Safety Dep’t, 194 F.3d 1374 (Fed.
Cir. 1999); Ramah Navajo Chapter v. Lujan, 112 F.3d 1455
(10th Cir. 1997); Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87
F.3d 1338 (D.C. Cir. 1996). The Menominee Tribe, however,
neither filed claims with the agencies nor filed suit. It instead
relied on two nationwide class actions brought by other tribes
that it thought might vindicate its rights, and did not pursue its
own claims more aggressively because the HHS’s Indian
Health Service’s (IHS) consistent pattern of refusals to pay
such claims led the Tribe to conclude that any such claims
would be futile.
The first of two tribal class actions brought the
Menominee Tribe some relief on claims that are distinct from
but legally analogous to the claims at issue here, and made the
Tribe somewhat complacent about these claims. That case,
brought by the Ramah Navajo Chapter, sought reimbursement
of contract support costs from the Secretary of the Interior and
its Bureau of Indian Affairs (BIA). See Ramah Navajo
Chapter, 112 F.3d at 1458-59, 1461. The district court in
Ramah certified a nationwide class of all tribal contractors,
even those who had not exhausted their administrative
remedies under the CDA, on the ground that the case
challenged the legality of the BIA’s system-wide policies and
practices, not the adequacy of its performance under specific
contracts. Appellant Br. add. at 5a-6a (Ramah Navajo
Chapter v. Lujan, No. CIV 90-0957 LH/RWM, Order
(D.N.M. October 1, 1993)). The Menominee Tribe was a
member of that class, and when the case settled, the Tribe
received nearly $800,000 in compensation for BIA
underpayments and equitable relief related to future BIA
contract support cost payments. App. at 55, 63.
The Menominee Tribe did not fare as well in the second
class action, which sought recovery from the IHS of some of
7
the costs that are at issue here. In 1999, the Cherokee Nation
sued the Secretary of HHS on behalf of all tribal contractors,
claiming that IHS had underfunded tribes’ contract support
costs from 1988 to the present. The suit defined the proposed
class in a manner that clearly included the Menominee Tribe.
See Cherokee Nation of Okla. v. United States, 199 F.R.D.
357, 360 (E.D. Okla. 2001). Given the Tribe’s experience
with the Ramah class, it relied on the Cherokee Nation class
action to represent it, and did not file its own claims with IHS
administratively. The district court in Cherokee Nation,
however, denied class certification on the ground that the
class lacked commonality, typicality, and adequate
representation. Id. at 363-66. Five months later, the district
court denied the Cherokee Nation’s claim on the merits.
Cherokee Nation of Okla. v. United States, 190 F. Supp. 2d
1248, 1259-61 (E.D. Okla. 2001). The Cherokee Nation
appealed the merits decision but not the denial of class
certification, and the Tenth Circuit affirmed. See Cherokee
Nation of Oklahoma v. United States, 311 F.3d 1054, 1063
(10th Cir. 2002).
While that lawsuit was pending, the Cherokee Nation
also pursued identical contract support costs claims against
the IHS for different years through the second route provided
by the CDA—an administrative proceeding before the Interior
Board of Contract Appeals (IBCA).3 The Board ruled in
favor of the Cherokee Nation, In re Cherokee Nation of Okla.,
IBCA Nos. 3877-79, 99-2 B.C.A. (CCH) ¶ 30,462, 1999 WL
440045 (IBCA 1999), and the Federal Circuit affirmed,
3
The Cherokee Nation’s claims against IHS—a service within
HHS, not Interior—were before the IBCA because the ISDA
provides that “all administrative appeals relating to [self
determination] contracts shall be heard by the Interior Board of
Contract Appeals.” 25 U.S.C. § 450m-1(d).
8
Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1079
(Fed. Cir. 2003). That decision created a circuit split with the
Tenth Circuit’s Cherokee Nation decision and with a Ninth
Circuit decision that had denied another tribe’s claims for
contract support costs. See Cherokee Nation of Oklahoma,
311 F.3d at 1063; Shoshone-Bannock Tribes, 279 F.3d at 663.
The Supreme Court granted certiorari in the two Cherokee
Nation cases to resolve the circuit split. See Cherokee Nation,
543 U.S. at 635-36. The Court held in the consolidated cases
that, when Congress has appropriated sufficient unrestricted
funds to pay a tribe’s contract support costs, the government
cannot avoid its contractual obligation to pay those costs on
grounds of “insufficient appropriations.” Id. at 636-38.
On September 7, 2005, six months after the Cherokee
Nation’s victory in the Supreme Court, the Menominee Tribe
filed administrative claims with a contracting officer at the
IHS to recover contract support costs for the years from 1995
through 2004. Menominee Indian Tribe of Wis. v. United
States (Menominee III), 841 F. Supp. 2d 99, 101-02, 106
(D.D.C. 2012). The contracting officer denied the claims
from 1996 through 1998 as untimely. Appellant Br. at 4.
The Menominee Tribe challenged that decision in federal
district court, arguing that the statute of limitations should
have been tolled. See Menominee I, 539 F. Supp. 2d at 154
n.2. The Tribe contended that, from March 5, 1999, the date
the Cherokee Nation class action was filed, to February 9,
2001, the date the district court in that case denied class
certification—a period just shy of two years—the statute of
limitations governing the Tribe’s claims for 1996, 1997, and
1998 should have been tolled pursuant to the doctrine of
class-action tolling. See Pls.’ Mem. in Opp’n at 30-35,
Menominee I, 539 F. Supp. 2d 152 (No. 07-812). The Tribe
argued that its claims for the years between 1996 through
9
1998 accrued when its self determination contract expired in
1998, and therefore all would have been timely had the
limitations period been tolled for two years during the
pendency of the Cherokee Nation motion for class
certification. Id. at 33. In the alternative, the Tribe argued
that its claims were eligible for equitable tolling. Id. at 35-41.
The district court rejected the Tribe’s class-action and
equitable tolling arguments in a footnote, Menominee I, 539
F. Supp. 2d at 154 n.2, affirming the contracting officer’s
denial of the Menominee Tribe’s claims. That court held that
the statute of limitations for such claims is jurisdictional and
thus categorically ineligible for tolling. Id. An earlier panel
of this court reversed in part, agreeing that the Tribe was
ineligible for class-action tolling, but holding that the statute
of limitations in the CDA may be subject to equitable tolling.
Menominee II, 614 F.3d at 529. We remanded to the district
court “to determine whether tolling is appropriate under the
circumstances of this case.” Id. at 531. On remand, the
district court held that the Tribe’s failure to timely file its
claims was not one of the “extraordinary and carefully
circumscribed instances” justifying the exercise of the
“court’s equitable power to toll the statute of limitations.”
Menominee III, 841 F. Supp. 2d at 105 (quoting Mondy v.
Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)).
This appeal followed.
II.
The parties disagree about the appropriate standard of
review. The Menominee Tribe argues that our review is de
novo. The government contends that abuse of discretion is
the proper standard. We need not resolve that question,
however, because, even applying non-deferential de novo
10
review to the adverse ruling of the district court, we find that
the circumstances of this case do not justify equitable tolling.
Equitable tolling is available to a party “only if he shows
‘(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland, 560 U.S. at 649 (quoting
Pace, 544 U.S. at 418). The Supreme Court has emphasized
that equitable tolling must be applied flexibly, case by case,
without retreating to “mechanical rules” or “archaic rigidity.”
Id. at 649-50 (internal quotation marks omitted). Holland
also emphasizes that courts must keep in view equity’s
purposes: correcting particular injustices and “reliev[ing]
hardships ‘which, from time to time, arise from a hard and
fast adherence’ to more absolute legal rules.” Id. (quoting
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
248 (1944)).
To count as sufficiently “extraordinary” to support
equitable tolling, the circumstances that caused a litigant’s
delay must have been beyond its control. See Dyson v.
District of Columbia, 710 F.3d 415, 422 (D.C. Cir. 2013)
(describing equitable tolling as a doctrine “meant to ensure
that the plaintiff is not, by dint of circumstances beyond his
control, deprived of a reasonable time in which to file suit”
(brackets and internal quotation marks omitted)); see also,
e.g., In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (per
curiam); Graham-Humphreys v. Memphis Brooks Museum of
Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000); Harris v.
Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000); Sandvik v.
United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999). The
circumstance that stood in a litigant’s way cannot be a product
of that litigant’s own misunderstanding of the law or tactical
mistakes in litigation. When a deadline is missed as a result
of a “garden variety claim of excusable neglect” or a “simple
11
miscalculation,” equitable tolling is not justified. Holland,
560 U.S. at 651 (internal quotation marks omitted); see
Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010) (no
tolling for a “simple legal mistake”); Cross-Bey v. Gammon,
322 F.3d 1012, 1015 (8th Cir. 2003) (no tolling for “lack of
legal knowledge or legal resources”); David v. Hall, 318 F.3d
343, 346 (1st Cir. 2003) (no tolling for “routine error” and
“carelessness”); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
2001) (no tolling for “miscalculation[s]” and “inadequate
research”); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.
2000) (no tolling for “miscalculation or misinterpretation”);
Harris, 209 F.3d at 330 (no tolling for an “innocent
misreading” of a statute); see also United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004) (no tolling for “ignorance of the
law”); Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001)
(same); Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000)
(same); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000) (same); Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir.
1991) (same); Sch. Dist. of Allentown v. Marshall, 657 F.2d
16, 21 (3d Cir. 1981) (same).
The Menominee Tribe faced no extraordinary
circumstances because the obstacles the Tribe confronted
were ultimately of its own making. The Tribe makes three
arguments that “extraordinary circumstances” prevented it
from timely filing its claims. We examine them in turn to
explain why we ultimately conclude that, while the events the
Tribe identifies were perhaps confusing or discouraging, they
cannot be characterized as “extraordinary circumstances”
under Holland.4 At bottom, the Tribe’s inadequate responses
4
The Holland Court was explicit that equitable tolling is available
to a party “only” if it shows (1) reasonable diligence and (2)
extraordinary circumstances. 560 U.S. at 649; see Ross v. Varano,
712 F.3d 784, 802 (3d Cir. 2013) (describing a showing of
12
to relatively routine legal events caused it to delay pursuing
its claims. At no point was the Tribe prevented by external
obstacles from timely filing.
The Menominee Tribe’s first argument is that, because
the Ramah district court certified a class action without
requiring class members to exhaust administrative remedies, it
was “logical to assume, as the tribe did” that the Tribe would
also be a member of the Cherokee Nation class. Appellant
Reply Br. at 14. The Tribe argues that it reasonably expected
that, as a class member, it either could have recovered its
costs through that litigation or, once the district court denied
class certification, at least have the statute of limitations on its
claims tolled for the two years the class certification motion
had been pending, allowing it to timely file in 2005 claims
that it contends accrued in 1998.
extraordinary circumstances as “necessary to support equitable
tolling”); Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 750
(6th Cir. 2011) (holding that a litigant seeking equitable tolling
“must demonstrate both that he has been diligent in pursuing his
rights and that an extraordinary circumstance prevented his timely
filing”); see also Manning v. Epps, 688 F.3d 177, 184 & n.2 (5th
Cir. 2012) (same); Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir.
2006) (same). But see Arctic Slope II, 699 F.3d 1289 (finding
equitable tolling without separately addressing the two Holland
prongs). Because no extraordinary circumstances stood in the
Tribe’s way, we need not pass on whether, under Holland’s first
prong, the Tribe pursued its rights diligently. Nor do we reach the
Tribe’s arguments that the court should consider various other
equitable “factors,” such as whether the government would be
prejudiced by the application of equitable tolling in this case, or
whether equitable tolling should be more readily available to tribes
given their special relationship to the United States.
13
The flaw in the Tribe’s calculations was that it was not
eligible to participate in the Cherokee Nation class. Class-
action tolling is available to members of yet-to-be-certified
class actions. Under that doctrine, the “commencement of a
class action suspends the applicable statute of limitations as to
all asserted members of the class who would have been
parties had the suit been permitted to continue as a class
action.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554
(1974). However, as we held in Menominee II, class-action
tolling does not extend to putative class members who fail to
satisfy known jurisdictional prerequisites to participation,
because “[u]ntil they satisfy the jurisdictional preconditions to
class membership,” they know for certain they will not be
members of the resulting class. 614 F.3d at 528. Knowing
they cannot participate whether a class is certified or not, they
“face none of the uncertainty class-action tolling is meant to
ameliorate.” Id. Therefore, in Menominee II, we held that
because the Tribe had failed to exhaust its administrative
remedies—and was therefore jurisdictionally barred from
participating in the Cherokee Nation class—the Tribe was not
entitled to class-action tolling during the pendency of the
class certification motion in that case. Id. at 529.
The Menominee Tribe now argues that it only discovered
in 2010—when we rejected its claimed entitlement to class-
action tolling in Menominee II—that it would be ineligible for
tolling on that ground. Thus, according to the Tribe, it
learned the effective deadline for filing its claims after it was
already too late to meet it. But the Menominee Tribe’s belief
that it could participate in the Cherokee Nation class without
exhausting its administrative remedies was unjustified.
Although the decision of the New Mexico district court in
Ramah may have given the Tribe the impression that its
failure to exhaust would not exclude it from the Cherokee
Nation class, the weight of legal authority was to the contrary.
14
As we explained in Menominee II, “[t]he Federal Circuit and
the Court of Claims have long held that the court may not
exercise jurisdiction until the contracting officer either issues
a decision on the claim or is deemed to have denied it.” 614
F.3d at 526 n.3. Where exhaustion is a prerequisite to the
exercise of a court’s jurisdiction, “every class member must
exhaust its administrative remedies.” Id. at 526. The Tribe’s
reliance on Ramah as reason to expect that it was eligible to
participate in the Cherokee class was the Tribe’s
miscalculation, not an external circumstance beyond its
reasonable control.5
The second obstacle the Menominee Tribe identifies also
fails to clear the “extraordinary circumstance” threshold. The
5
A divided panel of the Federal Circuit held that equitable tolling
was warranted in Arctic Slope II, 699 F.3d 1289, a case similar to
this one, because the Tribes “took reasonable, diligent, and
appropriate action as the legal landscape evolved,” id. at 1297, and
reasonably relied on Ramah and Pueblo of Zuni v. United States,
467 F. Supp. 2d 1099 (D.N.M. 2006), which the court described as
“controlling legal authority . . . that [the Tribes] did not need to
exhaust administrative remedies to be a class member,” id. at 1298.
The Federal Circuit also found that tolling would not disadvantage
the government. Id. at 1297. The Arctic Slope II majority did not
separately address Holland’s requirement of “extraordinary
circumstances,” however, beyond a concluding comment that the
case involved “unique facts and extraordinary circumstances” that,
together with the government’s fiduciary duty to the Tribes,
warranted equitable tolling. Id. at 1297. In our view, the Arctic
Slope II majority failed to identify any obstacle that stood in the
Tribe’s way to prevent timely filing of its claims, as required by
Holland’s second prong. We thus agree with the dissent in Arctic
Slope II that equitable tolling was unwarranted there, as it is here,
for want of an “extraordinary circumstance” under Holland. 699
F.3d at 1300 (Bryson, J., dissenting).
15
Tribe argues that the certainty of failure it confronted in
bringing its claims was an impediment that stood in its way.
According to the Menominee Tribe, the IHS’s legal position
that it was not obligated to pay contract support costs and its
pattern of refusals to pay such costs meant that the Tribe
confronted a legal landscape so bleak that filing a claim
would have been “a fruitless exercise, with no hope of
success.” Appellant Reply Br. at 15. It was “obvious IHS
would deny any claims,” says the Tribe, given the agency’s
“consistent position interpreting the statute to allow it to fund
less than 100% of [contract support costs].” Id. at 13.
The Menominee Tribe failed to take the steps it would
have needed to take to preserve its claims pending judicial
correction of IHS’s error. A party is not excused from timely
filing its claim because the agency’s view of the law might be
inhospitable. The federal courts, not contracting officers, are
the final word on federal law, and “[t]he only sure way to
determine whether a suit can be maintained is to try it.”
Commc’ns Vending Corp. of Ariz. v. FCC, 365 F.3d 1064,
1075 (D.C. Cir. 2004) (quoting Fiesel v. Bd. of Ed. of New
York, 675 F.2d 522, 524 (2d Cir. 1982)). As we have
explained, “a suitor cannot toll or suspend the running of the
statute by relying upon the uncertainties of controlling law. It
is incumbent upon him to test his right and remedy in the
available forums.” Id. (quoting Fiesel, 675 F.2d at 524-25).
Even though the Tribe doubted the viability of its arguments,
its claims had the same probability of success as the Cherokee
Nation’s claims that ultimately succeeded before the Supreme
Court.
No matter how adverse the agency’s legal position and
the Ninth and Tenth Circuits’ precedents may have been, they
did not stand in the Tribe’s way. Under the ISDA, tribes have
some choice about where they file their claims, and thus need
16
not pursue their claims in jurisdictions with adverse
precedent, but may proceed to any federal district court with
jurisdiction over the agency where venue is proper. See
Menominee II, 614 F.3d at 522. Before 2002, no circuit had
excused the government from its obligation to fully fund
contract support costs out of unrestricted appropriations.
Even after the Ninth and Tenth Circuits held against other
tribes on claims like the Menominee Tribe’s, the Tribe could
have appealed a contracting officer’s claim denial in another
circuit, and had something more than “no hope of success.”
Pursuant to the CDA, the Tribe could also have obtained
review in the Court of Appeals for the Federal Circuit. Until
2003, that court had not yet settled the question whether the
government had a contractual obligation to pay tribal
contractors for all their contract support costs, and by 2003—
two years before the Supreme Court decided Cherokee
Nation—had ruled in favor of plaintiffs on claims essentially
identical to the Menominee Tribe’s. See Thompson, 334 F.3d
at 1087-88. From that point onward, the Tribe could have
appealed to that court and won.
Even assuming the Menominee Tribe lacked the
resources to pursue its own litigation in federal court, its
eligibility to participate in the Cherokee Nation class would
have required nothing more than some paperwork. The
procedure for exhausting administrative remedies is simple,
and the Tribe has not argued otherwise. See Menominee III,
841 F. Supp. 2d at 102 (explaining that pursuing a CDA claim
“‘need not be elaborate’ and can be reflected in letters alone”
(quoting Arctic Slope I, 583 F.3d at 797)). Even if a
contracting officer were to deny the Menominee Tribe’s
claim, exhaustion of administrative remedies would have
made the Tribe eligible to participate in the Cherokee Nation
class, and thus entitled it to class-action tolling while the
motion for class certification was pending in that case. What
17
stood between the Tribe and class-action tolling was little
more than an envelope and a stamp.
The Menominee Tribe cites cases holding that a lack of
clear legal precedent might constitute an extraordinary
circumstance. See, e.g., Harris v. Carter, 515 F.3d 1051 (9th
Cir. 2008); Capital Tracing, Inc. v. United States, 63 F.3d 859
(9th Cir. 1995). We do not disagree. One can imagine
circumstances in which the law might be so unfavorable that
it functions as an obstacle and perhaps even rises to the level
of an extraordinary circumstance. In Harris and Capital
Tracing, for example, the parties relied “in good faith on then-
binding circuit precedent” in deciding when and how to file
their claims. Harris, 515 F.3d at 1055; see Capital Tracing,
63 F.3d at 863. Because it was only as a result of the reversal
of previously binding precedent that the parties’ claims
became untimely, the courts determined that equitable tolling
was appropriate. The general rule, however, is that legal
decisions based on unclear or contrary precedent justify
equitable tolling in only the rarest instances. See Boling v.
United States, 220 F.3d 1365, 1374 (Fed. Cir. 2000)
(declining to equitably toll statute of limitations even where
the underlying action appeared futile during the limitations
period).
Finally, even if no single circumstance stood in its way,
the Menominee Tribe argues, the Court should consider all
the factors that the Tribe faced as jointly amounting to an
“extraordinary” obstacle. The Tribe points to “the breadth
and complexity of [the contract support costs] litigation
involving hundreds of tribes, the precedent of a similar prior
class action in which the Tribe was a member of the class, the
unique government-to-government and trust relationship
between the United States and the Tribe, and the unsettled
case law regarding the legal standard governing the
18
Government’s duty to pay full [contract support costs] under
the ISDA.” Appellant Br. at 17.
That argument fails because none of the many factors the
Tribe identifies are external obstacles that prevented the Tribe
from bringing its claims. Some are not obstacles. Neither the
“unique government-to-government and trust relationship
between the United States and the Tribe,” id. at 17, nor the
“litigation history” surrounding contract support costs claims,
id. at 19, were capable of standing in the Tribe’s way. Others
we cannot accept. If a lawsuit’s “breadth and complexity”
were an “extraordinary circumstance,” few statutes of
limitations would function. And the remaining
circumstances—the Tribe’s mistaken belief that it would be
entitled to class-action tolling and that its claims had no hope
of success—were the Tribe’s own missteps. On the facts of
this case, we cannot conclude that a series of events, none
extraordinary on its own, piled up to create an extraordinary
obstacle.
III.
The Menominee Tribe also appeals the denial of two
“stable-funding” claims—that is, claims that the Tribe was
entitled to contract support cost funding in 1999-2000 at least
as high as that paid by the government in 1998. The parties
appear to agree, and the court below held, that those claims
are time barred unless the limitations period on the Tribe’s
1997 and 1998 claims is tolled. See Menominee III, 841 F.
Supp. 2d at 111; Appellant Br. at 48-49; Appellee Br. at 47.
Because, for the reasons discussed above, the circumstances
here do not warrant equitable tolling on the Tribe’s 1997 and
1998 claims, we affirm the judgment of the district court
dismissing the Tribe’s 1999-2000 stable funding claims.
19
* * *
Delays caused by a party’s inauspicious legal judgments
are not “extraordinary circumstance[s]” sufficient to justify
equitable tolling. Faced with a variety of reasonable litigation
options, the Menominee Tribe chose to wait and see if more
favorable law would appear. In so doing, the Tribe allowed
its claims to expire. Because we find that no obstacle stood in
the Menominee Tribe’s way of bringing the claims within the
limitations period, the judgment of the district court is
affirmed.
So ordered.