Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 1 of 8 IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) No.

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1 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 1 of 8 IN THE UNITED STATES COURT OF FEDERAL CLAIMS ROUND VALLEY INDIAN TRIBES, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. No L Hon. Susan G. Braden Electronically filed UNITED STATES MOTION FOR RECONSIDERATION The United States hereby moves for reconsideration of the Court s published opinion dated March 23, 2011, (Docket Number 130 denying the United States motion for partial summary judgment based upon claim preclusion, waiver, release, and the statute of repose in the Indian Claims Commission Act ( ICCA (Docket Number 123. This motion is made pursuant to Rule 60(b of the Rules of the United States Court of Federal Claims ( RCFC as well as the Court s inherent power to modify its interlocutory orders before entering a final judgment. Florida Power & Light v. United States, 66 Fed.Cl. 93, 96 (2005 (citing Balla v. Idaho State Bd. of Corrs., 869 F.2d 461 (9th Cir. 1989; John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88 (1922. In support of this motion, the United States further states the following: 1. This Court correctly held that Plaintiff, the Round Valley Indian Tribes, was a member of a representative group of plaintiffs in two consolidated ICCA cases ( Thompson and Risling, and is bound by the Indian Claims Commission s ( ICC final judgment in those cases. Docket No. 130 at 19. But this Court erred by applying accrual concepts drawn from statute of limitations jurisprudence to the applicability of the waiver and release in the stipulation for compromise and settlement and final judgment in Thompson and Risling. Id. at 22. A settlement

2 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 2 of 8 or stipulated judgment is akin to a contract and it is interpreted according to its plain meaning, not according to legal principles developed decades after its entry. King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997; see also Pagan v. Dept. of Veterans Affairs, 170 F.3d 1368, 1371 (Fed. Cir (settlement agreement interpreted as clearly stated and understood by the parties at the time it was entered; Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir (consent decree interpreted much the same way as a contract or statute is interpreted. Under the plain language of the stipulated final judgment, Plaintiff s instant trust fund mismanagement claims (or portions thereof that pre-date July 20, 1964, have been waived and released, and Plaintiff is barred from re-litigating them in this case. 2. Plaintiff was a party to Thompson and Risling. Docket No. 130 at 19. As a party to those actions, Plaintiff is bound by the judgments in those actions. Id. The judgment in Thompson and Risling explicitly stated that the motion for final determination or judgment pursuant to said stipulation, filed herein, be and the same is hereby granted.... Gov t App. Ex. 12 [Docket No at 110]. 1/ The stipulation for compromise and settlement and entry of final judgment (incorporated by reference in the final judgment in Thompson and Risling provided that: The stipulation and entry of final judgment shall finally dispose of all claims or demands which any of the petitioners and claimants represented in any of said dockets (expressly including Dockets 80-A, 80-B and 80-C have asserted or could have asserted against defendant in any of said cases, either before or after any consolidation, and petitioners (and all claimants represented thereby, and each of them, shall be barred from asserting all such claims or demands in any future action. 1/ Gov t App. refers to the United States Appendix of Exhibits in Support of the United States Motion for Partial Summary Judgment. Docket Nos , 123-3, and Appendix citations are to the sequentially numbered pages of the Appendix of Exhibits

3 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 3 of 8 Gov t App. Ex. 11 [Docket No at 101] (emphasis added. 3. The stipulation and final judgment in Thompson and Risling are silent as to accrual. Released and forever waived were all claims that were asserted or could have been asserted against defendant. Id. ICCA jurisdiction clearly encompassed trust fund accounting and mismanagement claims. Docket No. 130 at 5 (discussing breadth of ICCA. Many Tribes did bring trust fund accounting and mismanagement claims against the United States before the ICC. See, e.g., Te-Moak Bands of Western Shoshone Indians v. United States, 33 Ind. Cl. Comm. 417, 418 (1974 (seeking a ruling that the defendant is liable for lost income, if at any time after 1930 the plaintiff s Proceeds of Labor fund could have been invested in authorized securities yielding interest at a higher rate than the 4 percent paid by the [T]reasury. ; Jicarilla Apache Tribe v. United States, 33 Ind. Cl. Comm. 364 (1974 (the petition, filed on February 3, 1948, included a claim for a general accounting of defendant s administration of plaintiff s tribal trust funds.... ; Blackfeet and Gros Ventre Tribes v. United States, 32 Ind. Cl. Comm. 65, 66 (1973 ( Docket 279-C is the Blackfeet and Gros Ventre s claim against the Government for a general accounting of its management, handling and distributions of their money and other property. ; Mescalero Apache Tribe v. United States, 23 Ind. Cl. Comm. 181 (1970 (accounting claim. 4. It is beyond dispute that the Thompson and Risling plaintiffs could have asserted trust fund accounting and mismanagement claims before the ICC the very claims that Plaintiff asserts in this case. Numerous other ICCA litigants did assert trust fund accounting and mismanagement claims against the United States. Trust fund accounting and mismanagement claims clearly existed as of August 13, See ICCA, 12. The question therefore is whether Plaintiff s trust fund accounting and mismanagement claims (or portions thereof that - 3 -

4 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 4 of 8 pre-date July 20, 1964, were released by the stipulation of settlement and final judgment in Thompson and Risling. There is no plausible reading or interpretation of the stipulation for compromise and settlement and entry of final judgment or final judgment in Thompson and Risling that can support the Court s conclusion that Plaintiff s current accounting and trust mismanagement claims, or portions thereof, that pre-date July 20, 1964, are not encompassed by the waiver and release in that final judgment. 5. The Court reasons that Plaintiff s trust fund accounting and mismanagement claims were not waived or released by either of the prior actions, as they did not accrue until December 31, Docket No. 130 at 22. But the Court s reasoning is inconsistent with the law, the plain language of the release, and the parties intent in entering into the stipulated judgment in Thompson and Risling. 6. The Court has misapplied accrual principles here. Under the Court s reasoning, the ICC lacked jurisdiction to entertain and adjudicate scores if not hundreds of the claims it did. That is plainly not the case as recognized by numerous courts. Assuming, without agreeing, that the Court s accrual analysis is correct, Plaintiff s claims have still been extinguished by the stipulated final judgment in Thompson and Risling. Plaintiffs may waive a future cause of action, even one yet to accrue, predicated on the wrongful actions of a defendant antecedent to the settlement. See, e.g., Adams v. Philip Morris, Inc., 67 F.3d 580, 584 (6th Cir.1995 (acknowledging that a settlement agreement may waive claims for future effects of past discrimination; Allen v. Nicholson, 573 F.Supp. 2d 35, (D.D.C (upholding settlement agreement where plaintiff waives his right to pursue future causes of action against the Agency based on facts in existence as of the date of the agreement; Luttrell v. Cooper - 4 -

5 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 5 of 8 Industries, Inc., 60 F. Supp. 2d 629, 632 (E.D. Ky ( A plaintiff, however, may waive a future cause of action, even one yet to accrue, predicated on the tortious conduct of a defendant antecedent to the settlement.. 7. [W]hether a claim exists at the time of execution of a general release, for purposes of determining whether that claim has been released, is a very different question from whether a claim exists in the statute of limitations context. This is so because the issue in the release situation is voluntary waiver of a claim, and the critical inquiry is whether the claim or right can be said to exist such that a party is capable of waiving it or preserving it. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 729 F.Supp. 504, (S.D. Miss (internal citations omitted. 8. Here, the plain language of the release and final judgment waives all claims that Plaintiff could have asserted against defendant in any of said cases, either before or after any consolidation. Gov t App. Ex. 11 [Docket No at 101]. If the language of the release clearly bars the asserted claim, the plain language governs. King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed. Cir Plaintiff could and should have brought its trust fund accounting and mismanagement claims before the ICC. Those potential claims were voluntarily waived in exchange for valuable consideration, $29.1 million. 9. There is no basis in law or fact to apply the various appropriations act riders to the plain language of the release and final judgment. At best, those appropriations act riders only address the statute of limitations for losses to or mismanagement of trust funds. See, e.g., P.L (2009; 123 Stat. 624, ( notwithstanding any other provision of law, the statute of limitation shall not commence to run on any claim.... concerning losses to or mismanagement of - 5 -

6 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 6 of 8 trust funds..... Similarly, the 2002 Act only addresses the statute of limitations relevant to a limited and one-time occurrence determining the date on which an Indian tribe received a reconciliation report.... provided to or received by an Indian tribe in response to section 304 of the American Indian Trust Fund Management Reform Act of P.L (2002, 116 Stat. 79. Applying statute of limitations concepts to an analysis of a waiver and release in a bona fide and court-entered settlement and stipulated judgment is inappropriate. The plain language of the stipulation for compromise and settlement and entry of final judgment and final judgment are unambiguous, Plaintiff s trust fund accounting and mismanagement claims (or portions thereof that pre-date July 20, 1964, are barred. 10. The plain language application of the court-entered settlement and final judgment to Plaintiff s trust fund accounting and mismanagement claims is also consistent with the intent of the parties at the time. At the time the settlement was entered in Thompson and Risling, all parties understood that ICCA judgments were a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy and shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy. ICCA On motion and just terms, this Court may relieve a party from an order for any reason that justifies relief. RCFC 60(b. Furthermore, the Court has inherent power to modify its interlocutory orders before entering a final judgment. Florida Power & Light, 66 Fed.Cl. at 96. Reconsideration is appropriate where there is a need to correct a clear error or prevent manifest injustice. Delaware Valley Floral Group, Inc. v. Shaw Rose Nets, 597 F.3d 1374, 1383 (Fed. Cir Here there is a clear error of law in the Court s application of statute of limitations - 6 -

7 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 7 of 8 accrual concepts to the plain-language analysis applicable to waivers and releases, and reconsideration is appropriate. See Board of Trustees of Bay Medical Center v. Humana, 447 F.3d 1370, 1377 (Fed. Cir (recognizing clear error of law or fact as a basis for reconsideration. 2/ 12. For the reasons set forth herein, as well as any additional evidence or argument that may be presented in reply, at argument, or with leave of Court, the United States respectfully requests that the Court reconsider its Memorandum Opinion and Order on the Government s Motion for Partial Summary Judgment and Order (Docket No. 130 and, upon reconsideration, grant the United States motion. Respectfully submitted this 5th day of April, IGNACIA S. MORENO Assistant Attorney General s/ Stephen R. Terrell STEPHEN R. TERRELL United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C Tel: ( Fax: ( Attorney of Record for Defendant United 2/ The United States limits this motion for reconsideration to the points raised herein. By doing so, the United States does not waive any arguments it may have on appeal as to the other findings of fact and conclusions of law in the Court s opinion dated March 23, See Colon-Santiago v. Rosario, 438 F.3d 101, 111 (1st Cir ( although a party may file a motion for reconsideration, filing such a motion in no way obligates a party to bring up every possible reason for reconsideration or else waive the right on appeal to challenge any argument not brought up

8 Case 1:06-cv SGB Document 133 Filed 04/05/11 Page 8 of 8 States OF COUNSEL: ANTHONY P. HOANG TY BAIR United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC Tel: ( Tel: ( Fax: ( JASON BRUNO MICHAEL BIANCO Office of the Solicitor United States Department of the Interior Washington, D.C REBECCA SALTIEL THOMAS KEARNS Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C