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King's Number 14-5223, George B. Keith Eagle and L. Timothy Labadi, Appellant, versus Thomas J. Vilsack, Secretary of Agriculture.

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Mr. Cardell for the Appellant, Mr. Bruecke for the Appellate.

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May it please the court.

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My name is Eric Cardall.

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I represent the appellant, Timothy Labatt, who's in the courtroom today.

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My client seeks the reversal of the lower court decision in remand.

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We believe the standard review is de novo.

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There are some unrebutted jurisdictional facts I'd like to quickly cover.

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First, with respect to the underlying claim, Mr. Labatt testified that the USDA FMHA Roberts County Superintendent, Charles Twittero,

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indicated to him as a young high school graduate that he'd have to go into the military to get the loans.

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When he returned four years after the military, Mr. Twitterow told him, basically, Indian, there's no time to assist you.

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Later, he told Mr. Labatt, Indian, there's no loans for Indian Trust land.

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Horrible discrimination.

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And then lastly, Indian, there's only $100,000 available for Indians.

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Mr. Labatt identified eight white farmers in the area who had received between $250,000 and $500,000 of long-term low-interest loans, really got farmers into the game.

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Labatt never got those favorable loans.

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Instead, he did after persistent pursuing and pursuing two direct loans of short-term, $27,000 and $97,000.

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But when those loans were accepted, it was too little capital to operate.

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The government foreclosed on the loans, and he lost his farm.

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This is Mr. Labatt's life.

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That's it.

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The other unrequited jurisdictional facts are when we went through Track B, we were informed that we needed the affidavits from a non-family member, an affidavit.

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I lined that up with Mr. Hawkins and Mr. Lake, and Mr. Labette assisted me.

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And then upon the time that they were going to sign the affidavits, witnessing this discrimination and his efforts to complain about discrimination, a supervisor from the VA instructed them not to sign, apparently to preserve the government from liability.

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I notified the neutral of this fact by my own affidavit testifying to that.

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And then finally, the other unrebutted jurisdictional facts, that I could not contact the court directly because my client was subject to the settlement agreement.

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It says that you have to go through this process first.

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Of course, as a lawyer, I would have wanted to bring it to the U.S.

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District Court judges' attention, but as I obligated under the settlement... Why, Mr. Carl, didn't you subpoena these witnesses?

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In this case, we have this new process where under the settlement agreement, we have no process like that.

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There was no hearing, and there was no appeal.

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But the background law doesn't address whether or not you can subpoena.

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The settlement doesn't say anything about that.

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Presumably, the government gets in the way.

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These people have evidence.

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You need the evidence.

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You couldn't go to the district court in its exercise of just subpoena power.

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not according to the settlement agreement, the process was a non-judicial process.

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Not to decide the claims, but just to get the evidence.

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the process, the government was under no obligation per the agreement to provide any information?

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No, but that's so that they don't have to go through all their files and give major charts of who had which loans, and you're coming forward with that, but when they step in the way of fact witnesses, I just don't understand why you wouldn't have gone to the clerk, gotten a subpoena, had someone serve it,

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I mean, you might not even need the court's involvement if the witnesses complied.

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The settlement agreement said it was a non-judicial process.

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There's no provision.

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The subpoena is a non-judicial process unless there's a need to compel compliance.

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I just don't understand.

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The agreement restricted, this is our argument, and I want the court to understand my argument, is that the agreement said that it was a non-judicial process.

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There was a claim form we filled out.

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It was supposed to be submitted with information collected by the claimant.

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So I just want the court to understand that that was our reading of the agreement.

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And when the agreement was violated by the interference, then we went through the procedure for notifying the other side of the problem.

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And so we followed the agreement.

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And so now we expect to benefit from those procedures.

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And actually, Judge, I'm asking for exactly what you're indicating.

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We are asking for a chance to be in court to litigate our claim, not the Track B claim, but actually the claim.

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And we're ready to do that because this is a poster child for the USDA law discrimination case.

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You said not the Track B claim.

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Are you saying that you

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that you can opt out?

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Either way, it depends on how you view the breach.

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If the breach of the settlement agreement, this interference with our track B process, even under Judge Ballard's question, with respect to the additional cost that was incurred by the settlement agreement,

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already in this process, we'd be willing to be bound by the agreement, do track B, or be willing to have a hearing, whatever the government prefers or the court prefers.

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We're not afraid to litigate the underlying claim.

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What we think is unfair is that we agreed to this track B process without government interference, and the government interfered.

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Now, with respect to the contract... When did you notify the Department of Agriculture

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What I'm asking is, you had submitted your Track B claim and you had submitted some documentation, but you knew that you couldn't submit what you wanted to submit.

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Did you notify the Department of Agriculture at that time or only after the denial?

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I believe that it occurred after denial because we were harmed by the breach.

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The breach wasn't complete until we realized the harm.

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Well, you were harmed by the government's obstruction of, as you've alleged, the government's obstruction of your ability to get evidence.

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I mean, you knew that by submitting that claim without signatures, that was likely to be treated as

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inadequate.

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You didn't even go to the neutrals and say, hey, before we submit this claim, we need your help.

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You've given me a different explanation today from what you said in your declaration.

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You said the reason you didn't subpoena the witnesses was that you didn't have the power or the resources to subpoena them.

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Maybe by power you meant you read the agreement as disabling you.

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Yeah, that's the way I read the agreement.

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And now that the court understands my point on that, I understand the court can disagree.

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I think I just want to mention on the contract construction that the court order approving in Joint Appendix 60, paragraph 3 approves the settlement agreement, paragraph 5 incorporates paragraph 13, the procedure that we followed.

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The government holds on the provision in Section 13, Joint Appendix 143, provisions that are enforceable by the Court.

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There's an irony in that.

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In the Joint Appendix 120, Section 9, Paragraph 9,

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There, the claims determined under the non-judicial claims process are final and binding.

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And then the next sense is the class waives the claims.

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So our point is, well, this wasn't under the non-judicial claims process because of the governmental interference with our witnesses.

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So how can they enforce the waiver if we didn't have a proper process?

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And for the court, I know the court suggests, well, Mr. Carlyle, you could have gotten subpoenas and so forth, but that wasn't part of our bargain.

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Our bargain was that we get to do this simple process, and that no one's going to interfere with our witnesses.

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The government interfered with the witnesses, increased costs in our process.

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That in itself is a breach.

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The breach occurred before the determination, and so that's why they don't get the benefit of the waiver provision.

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Further, at joint pace.

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What I guess I fail to understand is that

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The settlement agreement says you can go under Track A or Track B. You and your client have to make that decision.

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And when you make that decision, you know that you're going to need a declaration that's signed.

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So you make that decision and you should either have that declaration in hand

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or when a problem arises and if you've already made that election to go under Track V, you do whatever you need to do to get that declaration in hand.

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I mean, if you believe that this is a breach of the settlement agreement, you could bring a breach of contract claim

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in state court, federal court, some place and seek some sort of, you know, injunctive relief, specific performance, whatever it is that you think you're entitled to, to force the government to allow

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these individuals to sign declarations.

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You don't have to try to invoke the jurisdiction of the district court here under the settlement agreement.

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Why?

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Why couldn't you or why didn't you do something other than to try to tag one to this case that had been dismissed with prejudice?

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Judge Wilkins, with all respect, there was a procedure for my client to follow.

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The paragraph says, plaintiffs include members of the class.

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Okay, then there's another provision that says under 13, specifically incorporated in the judge's order of approving the settlement agreement, but that's the procedure to use.

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We identified that there was a breach.

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And no one can question that that happened because it's not been rebutted, that we had witnesses to discrimination willing to sign affidavits.

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My client followed a procedure that the court provided.

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Just so that I'm clear on your argument, what was the breach?

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What provision in the settlement agreement was breached?

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The provision in the settlement agreement that was breached was the provisions regarding the non-judicial claim process, and the federal officials instructed... Show me the language in the agreement that was breached.

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I mentioned, one, that in order for the waiver to be effective under Article 9, Section 9, the claim determination must be under the non-judicial claims process.

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So you're at J120.

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Yes, and so in order for the waiver to be effective the claim determination must be under the non-judicial claims process the non-judicial claims process implies that a process

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that is fair to the citizen.

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And here, it is not fair to a citizen when there's this kind of discrimination that's unrebutted that an official of the BIA instructs witnesses not to sign an affidavit.

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The racism here, the discriminatory act, occurred.

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And here you have a government employee, a defendant, not an employee of the defendant, but an employee of the federal government, not allowing that affidavit regarding discrimination to be signed.

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I find that the argument that the settlement agreement can be used under these circumstances as a defense to bar my client's claim must be considered in light of the breach claim.

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So I'm saying we would have made it but for the interference.

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And there was no provision in the agreement for such interference.

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And under any process with the government, it needs to be fair.

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I just want to last point.

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I apologize.

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I believe this case is a good case to just announce a rule that, with respect to government enforcement of such waivers pursuant to settlement agreements,

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that the court before it dismisses the subsequent claim must find that there's no breach.

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But the government can't, and this court must police the government when it obtains a waiver based on a promise, and that promise is broken, not to enforce the waiver.

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Thank you, Your Honor.

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May it please the court, Carlene Zubricki for the government.

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District courts do not retain jurisdiction over dismissed settled actions except to the extent that jurisdiction is expressly retained.

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Here, sophisticated parties bargained for a provision establishing, and I quote, that the court will not retain jurisdiction over any aspect of this action or in connection with the enforcement of any of the settlement agreement's provisions.

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The Department of Agriculture, obviously this is counterfactual, but what if they had, in an effort to obstruct the filing of claims, gone out and slashed the tires of claimants who were seeking to approach the claims filing and rendered their claims late?

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Nothing specifically in the settlement agreement preventing that.

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Respectfully, Your Honor, I don't think that that would change the district court's continuing jurisdiction.

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Stepping back, a settlement agreement is essentially a contract in which one party dismisses a case in consideration for other significant relief.

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Presumably, though, that person would have some kind of claim to go to the district judge and say, in aid of your jurisdiction, however the settlement defines it,

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You know, the way the plaintiff has put this is, this is a violation of the implied duty of good faith and fair dealing.

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There's gotta be something that's in that category, no?

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Again, respectfully, Your Honor, I disagree in terms of the district court's ancillary jurisdiction.

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There may be some relief in some other court.

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Where?

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So what, and maybe just backing up, I really would be interested in hearing your position on what,

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Mr. Keepsickle should have done.

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Well, Your Honor, respectfully, in theory, breaches of settlement agreements may be redressed in state courts or as Judge Wilkins referenced in other courts.

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Like I said, I don't think that affects the ancillary jurisdiction under this agreement.

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I mean, I guess it's a breach in the sense that there

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getting in the way, but it's more, it actually seems to fit more comfortably into ancillary jurisdiction in aid of the court's judgment.

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Again, there may be some other remedy, but that doesn't affect the negotiated terms that were so ordered by the district court here.

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What's your position on whether Mr. Keefe Siegel could have subpoenaed these witnesses, consistent with the settlement agreement?

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I'm not aware of anything in the settlement agreement that would have allowed him to subpoena the witnesses.

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I mean, under the Arbitration Act, Federal Arbitration Act, which I'm not saying that applies here, but just in terms of the structure of arbitration, people are subpoenaed all the time.

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I think it's Section 7 says subpoena away.

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Again, Your Honor, the agreement that the parties reached in this case involved a very streamlined paper-only process.

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It provided opportunities for claimants who were unable to obtain the evidence that they would need under Track B to proceed under Track A. I should also back up and note that after the fairness hearing on the settlement agreement,

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you know, members of the class were provided an opportunity to opt out of the class if they thought they would need discovery, if they thought they could pursue litigation elsewhere.

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And in this case, Mr. Labatt did not opt out of the settlement agreement.

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Instead, he proceeded not under Track A, but under Track B. And he was, you know, even after he was aware that he had

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that he would need to provide this information, and even after he was aware that he was unable to obtain the relevant information, he could still have switched to track A at that point in time under the agreement, and he did not.

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What provision of the agreement would have allowed him to switch to track A?

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So in other words, once you say you're in track B, it's not an irrevocable choice.

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If you actually look at the notice that Mr. Labatt received, which is in the record, it outlines exactly what he needed to do and the deadlines he would have needed to do that by.

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The notice is at

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I'm sorry, I don't have the JA site on my fingers.

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I can give it to you in a moment.

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But it is the case that he would have still had that opportunity.

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At the time, in fact, after the declaration signed by Mr. Cardall was dated, he could still have sent something to the track, be neutral.

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switching to Track A at that point, and he declined to do so.

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But I also want to focus the court.

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Instead, Mr. LaBotte submitted all of his allegations and made an offer of proof, which is what he described it as, to the Track B Neutral.

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The Track B Neutral then had all of this information before it, and it reached two determinations.

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If you actually look at the Track B Neutral's decision, which is at JAA 155,

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And in that decision, first, he explains that because there was not a declaration based on personal knowledge, Mr. Labatt had failed to meet the requirement of submitting declarations and had failed to meet the evidentiary requirement.

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So he declines to relieve Mr. Labatt of the evidentiary burden.

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And then second, he stated further the statements in that declaration, that is, the statements that Mr. Cardola and Mr. Labatt purported that they would be able to prove

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lack the specificity necessary to establish that those benefits were, in fact, received by the white farmers.

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That's the wrap-up of a paragraph talking about how these are not competent evidence.

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So really it's, you know, Mr. Cardall doesn't have, in his personal knowledge,

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evidence that has the requisite specificity.

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You're not saying that in fact the neutral went on to look at the merits of these affidavits, are you?

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I think if you actually look at the submissions here, Mr. Cardell submitted a detailed, long declaration.

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With the unsigned affidavits attached.

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Exactly, and the provisions in the unsigned affidavits that would go to this element are essentially identical to what Mr.

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Cardell submitted here.

[00:20:15] Speaker 04:
Right, but he doesn't have personal knowledge, so that doesn't provide the specifics.

[00:20:19] Speaker 04:
There's no competent evidence with the specificity.

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I'm curious whether you know what kinds of proof have succeeded in establishing these Track B claims.

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Do you have any sense assuming that you are

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proposing that this is read as if the neutral is examining those affidavits on their terms.

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What more is needed?

[00:20:49] Speaker 03:
I've actually, I've looked into this and we actually don't have any of that information.

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We have no information about what is submitted by successful or unsuccessful claimants in that process.

[00:21:01] Speaker 03:
It really is intended to be carried out.

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You know, class counsel selected these track B neutrals and it's a paper process that they carry out.

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So I do know that there were track B applicants who obtained payments from the fund, but I can't give you any details about exactly what they submitted.

[00:21:17] Speaker 04:
And what's your position on whether the government directed these witnesses not to sign the declaration?

[00:21:23] Speaker 03:
Your Honor, at this stage, you know, we have accepted as true, basically at a pleading stage, these allegations.

[00:21:30] Speaker 03:
We have not taken a position as to whether that would constitute any kind of an allegation.

[00:21:35] Speaker 04:
We have not taken a position as to whether... You haven't investigated that as a question of government, whether that's proper for the government to do.

[00:21:43] Speaker 04:
That's correct.

[00:21:44] Speaker 04:
Is it your position that these Bureau of Indian Affairs employees are employees of a represented party under Rule 4.2?

[00:21:56] Speaker 03:
Again, Your Honor, we have not taken a position on the underlying merits of the claim or whether they would have been able to.

[00:22:01] Speaker 03:
This is not on the underlying merits.

[00:22:02] Speaker 04:
This is on the core question that he's presenting.

[00:22:05] Speaker 04:
Do you think that were it the case that the government directed these witnesses not to sign it,

[00:22:11] Speaker 04:
appropriate because they're a represented party or?

[00:22:15] Speaker 03:
Your Honor, respectfully, there are all sorts of limitations on when and how government employees can interact with parties involved in opposing litigation, but we have not taken a position as to the underlying merits of what would have been appropriate, excepting as true at the pleading stage, the facts that Mr. Levada alleges.

[00:22:41] Speaker 03:
Again, I do really want to emphasize that the relevant provisions of this settlement agreement provide a very strict limitation on the court's ongoing ancillary jurisdiction.

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And this is different than other settlement agreements or consent decrees that have been before this court.

[00:23:01] Speaker 03:
And again, there is no carve out from that continued grant of ancillary jurisdiction that would

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encompass the claims that Mr. LaBotte brings in this case.

[00:23:14] Speaker 04:
Distribution of the funds doesn't include determining the identity of the worthy claimants and the amount of their claims.

[00:23:20] Speaker 03:
I know, Your Honor, our position is that distribution of the fund essentially refers to the dispersal of money after the Track A and Track B neutrals have had the opportunity to determine which of the thousands of claimants would be entitled to relief.

[00:23:37] Speaker 03:
And I know that even if you look at the rest of the sentence that that phrase comes from,

[00:23:44] Speaker 03:
This is from Roman 13 of the settlement agreement.

[00:23:46] Speaker 03:
The rest of that sentence refers to distribution of the fund and to ensure that debt relief awards issued by track A and B neutrals are applied.

[00:23:55] Speaker 03:
So when it talks about the debt relief there too, it's talking about sort of after the marriage determinations are made.

[00:24:01] Speaker 03:
Referring to

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For distribution of the fund to refer to all sorts of possible errors at any stage in this process would create conflicts with the numerous provisions making very clear that

[00:24:17] Speaker 03:
the track A and B determinations are intended to be final, and we're over that any other determination made under the track B process would be final, and that's Roman 989 in particular.

[00:24:29] Speaker 03:
I also note, Your Honor, that the other place in the settlement agreement where distribution is discussed, it is discussed elsewhere, that's Roman 9F, and that

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refers, again, only to sort of the part of the process by which money would be dispersed after the track A and B process concludes.

[00:24:50] Speaker 04:
So that is our position.

[00:24:52] Speaker 04:
It seems, and I know this is a different settlement from Pigford, but there is some parallel between the defect claimed here that is a defect and how the claim is teed up

[00:25:04] Speaker 04:
to the neutral and not really with how the neutral did the neutral's job.

[00:25:09] Speaker 04:
And in Pigford two, this court said, you know, that's not going against the finality requirements, even though there too, the neutral had gone ahead and made a determination.

[00:25:19] Speaker 04:
It's not going against that finality because it's really looking at the preceding conduct.

[00:25:25] Speaker 03:
Well, first of all, Your Honor, I would say that the settlement agreements are not just different.

[00:25:30] Speaker 03:
They're essentially opposites in their structure.

[00:25:32] Speaker 03:
And in Pigford, the consent decree expressly provides for jurisdiction over violations of the agreement in general.

[00:25:41] Speaker 03:
And the court held that a narrow cartel extending to determinations by adjudicators didn't apply to, in that case, if you recall, a claim was routed to the wrong track.

[00:25:53] Speaker 03:
In this case, our settlement agreement, and again, at JA 48 or at JA 143, expressly provides that there is to be no continued jurisdiction over any violation of the agreement except for specific carve-outs, and none of those carve-outs applies to this case.

[00:26:10] Speaker 03:
But also, on the facts of Pinkford, again, in this case, Mr. LaBotte did submit both his allegations here and

[00:26:21] Speaker 03:
described the evidence that he believed he could provide to the track be neutral.

[00:26:26] Speaker 03:
And he got an adverse determination, several adverse determinations, by the track be neutral.

[00:26:31] Speaker 03:
So here there really is, in our view, an effort to reopen an adverse determination, which is not what was happening in Pinkford.

[00:26:41] Speaker 03:
And I think that it's critically distinction.

[00:26:43] Speaker 04:
So you should go to state court under contract law and argue that this is a breach of the contract.

[00:26:50] Speaker 03:
Your Honor, again, I don't want to speculate as to what exact remedies might be available elsewhere.

[00:26:56] Speaker 03:
Again, breaches of settlement agreement can be enforced through breach of contract.

[00:26:59] Speaker 03:
In this case, I think you would have a very difficult time proving for instance damages in light of the Track B Neutral's second alternative determination.

[00:27:08] Speaker 03:
Sorry.

[00:27:13] Speaker 03:
which we do think was an alternate hold, and we don't think there's any reason for the court to have stated further in any event, essentially, what you have included in these submissions isn't sufficient.

[00:27:25] Speaker 04:
Is there any information that you can share with us about the likely disposition of the CPA and whether there's gonna be any relief for a claimant in Mr. Keep Siegel's position?

[00:27:39] Speaker 04:
I gather that only about a third of the money set aside for this settlement has successfully been disbursed.

[00:27:47] Speaker 03:
There is a significant amount of money left over.

[00:27:49] Speaker 03:
My understanding is that I'm not aware of any relief under the sort of proposed modifications to the CPA agreement, which are really intended to sort of more efficiently funnel that leftover money that would provide Mr. LaBotte with relief.

[00:28:12] Speaker 03:
But before I sit down, I do want to call the court's attention to there's another restriction on the district court's ongoing jurisdiction here, which is the five-year temporal bar.

[00:28:22] Speaker 03:
And I do want to just call the court's attention to the fact that that five years will have run at the end of April of this year.

[00:28:28] Speaker 03:
So we just wanted to make sure that the court was aware of that.

[00:28:35] Speaker 03:
If there are no further questions, we ask the court to affirm.

[00:28:38] Speaker 04:
And you're making us aware of that because you're suggesting that were we to rule, we might want to rule quickly, and that the district court, whatever authority the district court might have in any event would come to an end in April?

[00:28:51] Speaker 03:
This is not something that's been litigated.

[00:28:54] Speaker 03:
Our position is that even on a remand, there would not be continuing jurisdiction.

[00:28:58] Speaker 03:
So if there were to be a ruling that was not in our favor,

[00:29:03] Speaker 03:
I think that's right.

[00:29:04] Speaker 03:
Of course, in our view, in any event, the district court does not have jurisdiction to address any of Mr. LaBotte's claims here.

[00:29:10] Speaker 04:
I appreciate your bringing in our attention.

[00:29:14] Speaker 05:
Thank you.

[00:29:18] Speaker 05:
All right.

[00:29:19] Speaker 05:
Mr. Cardall, you didn't have any time left, but we will give you two minutes if you need it.

[00:29:25] Speaker 01:
Thank you, Judge, and two minutes for two points.

[00:29:28] Speaker 01:
One, going back to Judge Pollard's question, I think it's only fair when reading the settlement agreement Article 5, court supervision of the settlement agreement enforcement procedures regarding the supervision of the fund, that one should go to the definition of claim determination in Article 1.

[00:29:46] Speaker 01:
And it says, a claim determination is the binding and final result of a track A or a track B adjudication and represents whether a class member is eligible to receive an award.

[00:29:56] Speaker 01:
The word eligibility connotes that the court was going to approve the list.

[00:30:02] Speaker 01:
And that is the continuing jurisdiction you'd look for in this kind of a case, where we've said basically we should be on the list.

[00:30:10] Speaker 01:
And I think that the reason why there was such extensive court supervision of the process here was to the government's credit, it was trying something new, and that was a hearing-less, appeal-less process.

[00:30:25] Speaker 01:
And as the government conceded, there was no access under the settlement agreement to subpoenas.

[00:30:31] Speaker 01:
And so we followed the process according to the settlement agreement.

[00:30:35] Speaker 01:
We identified the breach and we notified the court, the party, as soon as we were damaged.

[00:30:40] Speaker 01:
Lastly, my client finds it procedurally offensive that the government would rely on the merits of the neutrals decision when our process was interfered with.

[00:30:55] Speaker 01:
So here are the government attempts to gain an advantage through interference with my witnesses and obstruction, from our point of view, in our little claim, but it's Mr. LaBatt's life, of his claim.

[00:31:05] Speaker 04:
I mean... Well, what about the position that, I mean, in a sense, the government's position is that the

[00:31:17] Speaker 04:
Interference that you allege is effectively harmless error, even if, I mean, they dispute that it's error, but if it is, they're saying, had you gotten those declarations signed, we know, as they read it, we know from what the neutral said, that they would not have been sufficient.

[00:31:36] Speaker 04:
So you're barking up the wrong tree.

[00:31:37] Speaker 04:
They are insufficient on their face, according to the government.

[00:31:41] Speaker 04:
What's your response to that?

[00:31:42] Speaker 01:
Well, the, uh, I would have continued working with the witnesses as I hadn't Mr. Labatt met with them.

[00:31:47] Speaker 01:
We would have finished the declarations and submitted them and they would have been sufficient.

[00:31:52] Speaker 01:
That process was truncated.

[00:31:54] Speaker 01:
Uh, as the court mentioned, the subpoena allows you to have the witness in a chair and to ask questions.

[00:32:01] Speaker 01:
I would have been in the same position at grand without a subpoena absent the government interference.

[00:32:05] Speaker 01:
Thank you.

[00:32:06] Speaker 05:
Thank you.

[00:32:07] Speaker 05:
The case will be submitted.