[00:00:05] Speaker 00: Case number 16-5117, Navajo Nation, a federally recognized Indian tribe, Navajo Nation Department of Justice appellate versus United States Department of the Interior and Sally Jewell in her official capacity as Secretary, United States Department of the Interior. [00:00:21] Speaker 00: Mr. Gordon for the appellate, Mr. Cappell for the appellate. [00:00:26] Speaker 04: Good morning. [00:00:29] Speaker 04: Good morning, Your Honor. [00:00:29] Speaker 04: May it please the court? [00:00:32] Speaker 04: The district court erred in ruling that the Navajo Nation was barred by equitable estoppel from pursuing its claims under the Indian Self-Determination Act. [00:00:43] Speaker 04: The silence of the Navajo Nation did not constitute inequitable conduct, and the BIA did not rely on that silence in any event. [00:00:53] Speaker 04: The BIA's failure to comply with the mandates of the Indian Self-Determination Act is attributable solely to the agency and not to the Navajo Nation. [00:01:06] Speaker 04: We have set forth in the brief the reasons why the doctrine of equitable estoppel does not apply. [00:01:17] Speaker 04: The first point is that the Navajo Nation as a sovereign is not to be a stop on the basis of a private party and could be a stop, if at all, only on the basis of affirmative misconduct. [00:01:32] Speaker 04: As far as ruled, that silence does not constitute affirmative misconduct. [00:01:37] Speaker 04: Beyond that, even if the Navajo Nation were considered a private party, none of the elements for equitable estoppel are established here. [00:01:48] Speaker 05: Just thinking about the case more broadly, there are different buckets here. [00:01:51] Speaker 05: Equitable stophold, the language of the statute, equitable tolling. [00:01:56] Speaker 05: What if a lapse in appropriation was longer than 90 days? [00:02:02] Speaker 04: Well, the first thing I would say, Your Honor, is that that is not this case. [00:02:07] Speaker 04: This case involves a lapse that caused a loss of 13 out of the 90 days at the start of the period. [00:02:12] Speaker 04: Right. [00:02:12] Speaker 04: So what's the answer, though, in the question when it's more than 90 days? [00:02:17] Speaker 04: If it's more than 90 days, [00:02:19] Speaker 04: Well, again, it would depend, I think, our position is, first and foremost, that a lapse in appropriations is not the act of a third party. [00:02:30] Speaker 04: It is a self-created problem by the government. [00:02:34] Speaker 05: So the government loses [00:02:36] Speaker 05: if the lapse is more than 90 days. [00:02:40] Speaker 04: If it doesn't make provision for it, Your Honor, the government makes provision for essential services and for things that can't lapse. [00:02:47] Speaker 04: And indeed, the government makes provisions. [00:02:49] Speaker 04: The reason that Mr. Slim could accept the proposal here is that Mr. Slim, another self-determination specialist, was on a multi-year funding appropriation. [00:03:00] Speaker 05: What if he was unauthorized to accept it? [00:03:03] Speaker 05: which it appears he might have been. [00:03:06] Speaker 04: Well, Your Honor, there's no, the argument that he was unauthorized to accept, this is really not a case about receipt. [00:03:14] Speaker 04: This is a case about the government extending unilaterally. [00:03:19] Speaker 06: Well, it can be a case about receipt. [00:03:22] Speaker 06: I understand the government to argue in alternatives that you're stopped if the, you're stopped from this, [00:03:35] Speaker 06: They're saying they did not receive the document at the time that the gentleman who was working during the government's talking. [00:03:44] Speaker 06: received it. [00:03:45] Speaker 06: They said they didn't receive it until a later date, and the jurors stopped from asserting. [00:03:49] Speaker 06: So it is about receiving it. [00:03:52] Speaker 04: Well, I don't think so, Your Honor. [00:03:54] Speaker 04: I don't think that that situation is any different. [00:03:55] Speaker 04: Suppose you had a shutdown in the old days before electronic filing. [00:04:03] Speaker 04: You've got a plea to file on a civil case. [00:04:05] Speaker 04: You go down to the clerk's office. [00:04:07] Speaker 04: and you know that there's a partial shut down. [00:04:08] Speaker 04: But the clerk's office is open and there's a clerk there. [00:04:11] Speaker 04: Now it turns out that only criminal clerks are working and civil clerks aren't working. [00:04:16] Speaker 04: But going into your hand, you're pleading that the criminal clerk who accepts it doesn't say, I'm not authorized to accept it. [00:04:25] Speaker 04: We would say that that's been received. [00:04:28] Speaker 06: Yeah. [00:04:28] Speaker 06: So you would say it's about receiving, but you win. [00:04:32] Speaker 04: Well, Your Honor, there is, there are arguments. [00:04:37] Speaker 06: The government will argue alternatively, I think, that if you win on the stoppily argument, nonetheless, they will prevail on the date, because they say it's not received until the Director of BIA or the Secretary of State or somebody authorizes it. [00:04:53] Speaker 04: But their argument depends on the Anti-Deficiency Act. [00:04:58] Speaker 04: And they've got two problems with that. [00:05:00] Speaker 04: First of all, there's no violation of the Anti-Deficiency Act. [00:05:03] Speaker 04: It is well established. [00:05:05] Speaker 04: that for a paid government employee to perform an additional service beyond what he or she is being paid for is not a violation of the Act. [00:05:14] Speaker 04: That's their theory of why there's a violation and it fails. [00:05:17] Speaker 04: Second of all, they're relying on the Anti-Deficiency Act to override the clear provisions of [00:05:24] Speaker 04: the uh... uh... the indian self-determination act and the anti-deficiency act is a limitation only on government employees not on private contractors who are engaged in contractual relationships with the government. [00:05:37] Speaker 02: Mr. Gordon, would it make a difference [00:05:39] Speaker 02: to either of your arguments if the BIA had posted on its website an announcement saying we are not doing any work of the enumerated work, this is the only work we're doing is work that's accepted from the shutdown, and also posted such a notice on the door of the relevant office. [00:06:03] Speaker 04: That would make it a more difficult case, Your Honor. [00:06:06] Speaker 02: How would you win if that were the case? [00:06:10] Speaker 04: Well, if that were the case, the argument would have to be that if notwithstanding that, Mr. Slimmer had accepted it, that the government had received. [00:06:26] Speaker 04: Now, there would also be an issue about whether the government could, in the first place, [00:06:37] Speaker 04: say that the deadlines didn't apply to say, we're not here, we won't accept anything, we won't receive anything, and therefore contractors with the government are left at their peril. [00:06:53] Speaker 02: Well, if they said, we're discontinuing our services, treat any day in which the government is shut down the same way that you would treat a weekend or a holiday. [00:07:05] Speaker 02: So you could put something in the mail, but it would only be received when the officials who were responsible for that came back to work. [00:07:14] Speaker 02: You could not go and give something to someone who happened to be [00:07:18] Speaker 02: So if they were clear about that, then it's your view that the receipt probably would be defeated if it were done away. [00:07:28] Speaker 04: Your Honor, I would say that it's a much more difficult case. [00:07:31] Speaker 05: How's that different from this case? [00:07:34] Speaker 05: The entire country knows that the government is shut down except for those positions that are specifically accepted and [00:07:47] Speaker 05: Well, the Navajo... I don't know how notice really gets you very far. [00:07:52] Speaker 05: Because everyone knows the government is shut down. [00:07:58] Speaker 04: The government's only partially shut down, Your Honor. [00:08:00] Speaker 04: It's not completely shut down. [00:08:02] Speaker 04: And the person who was delivering it for the Navajo Nation went to the BIA office, which was open, walked into the BIA office, [00:08:09] Speaker 04: met Mr. Slim, who is an ISDEAA specialist, gave him the proposal. [00:08:15] Speaker 04: Mr. Slim accepted it. [00:08:17] Speaker 05: They told you right after the government came back that it's only received as of October 17th. [00:08:25] Speaker 04: That's after the fact. [00:08:26] Speaker 04: Congress is specified in the Self-Determination Act two things. [00:08:32] Speaker 04: And they did this as a remedial purpose, because there had been a history of foot dragging before. [00:08:38] Speaker 04: Congress said that these proposals must be acted on within 90 days, and that the only way you can extend or alter, extend or alter, this is the statutory language, that 90-day period is with the written consent of the tribe. [00:08:55] Speaker 04: That's in the statute itself, cited in our appendix, addendum at page three. [00:09:02] Speaker 05: And in this case, when the BIA comes in, look at it from... Why didn't you all respond to the BIA and say, actually we disagree with that and we think January 2nd will be the deadline? [00:09:18] Speaker 04: Because we had no obligation to do so, Your Honor. [00:09:22] Speaker 06: Well, Your Honor, people often do things they don't have an obligation to do. [00:09:26] Speaker 04: Why didn't you in this case? [00:09:28] Speaker 04: The record does not show anything other than that the nation didn't respond. [00:09:32] Speaker 04: Right. [00:09:33] Speaker 04: And you were asked why, and you did not answer. [00:09:37] Speaker 04: Your Honor, I can't answer that because the record doesn't show it. [00:09:42] Speaker 04: And in any event, for purposes of equitable stopple, what does the intent matter? [00:09:48] Speaker 04: How about for equitable tolling? [00:09:50] Speaker 04: Doesn't matter for the tolling either. [00:09:51] Speaker 04: For tolling, what would be more relevant would be when, assuming you don't view this as a problem of the government's own creation, assuming that you would say that element is satisfied and then you're just concerned about diligence, what would be more important is when the shutdown happened. [00:10:08] Speaker 04: Suppose, for example, it was 90 days, as Your Honor was positive. [00:10:12] Speaker 04: Or suppose it happened at the tail end, so that you had a situation where perhaps the person was planning to do it by the deadline, and then they couldn't. [00:10:22] Speaker 04: That would be a more difficult case. [00:10:25] Speaker 04: I'll concede that would be a more difficult case. [00:10:27] Speaker 04: But this is a very easy case. [00:10:29] Speaker 02: But wouldn't it also be a more difficult case if the government shutdown went for, let's say, 80 days or 85 days or 88 days? [00:10:38] Speaker 04: Well, it would, except that you have to understand this. [00:10:43] Speaker 04: In terms of these proposals, [00:10:46] Speaker 04: It's very simple and it's very clear. [00:10:49] Speaker 04: When a tribe puts in a proposal, they are entitled to receive the same funding they got the year before. [00:10:54] Speaker 04: So that much has to be approved. [00:10:57] Speaker 04: To the extent they seek additional funding, the BIA has complete discretion to say no. [00:11:03] Speaker 04: And all they have to do with the stroke of a pen is say, that is decline. [00:11:07] Speaker 04: And this whole thing that's been suggested about, well, they wanted to encourage negotiations is a red herring because once they partially decline, which they could do with the stroke of a pen, they could then say to the tribe, [00:11:23] Speaker 04: We won't give you as much as you asked for, but we might consider a lesser amount. [00:11:27] Speaker 04: So why don't we talk, and then if they do have such negotiations, the tribe can come back with another proposal. [00:11:33] Speaker 04: They could come back the next week or the next month or two months down the road with another proposal with the agreed figure. [00:11:41] Speaker 04: all of the government has got a problem completely of its own creation here and is attempting to blame its failure to follow dictates the law on the Navajo Nation which did nothing other than properly submit [00:11:56] Speaker 04: its proposal. [00:11:57] Speaker 05: I think the theory is that the appropriations acts and the anti-deficiency act and common sense suggests that when there's a shutdown, a lapse in appropriations, various deadlines that otherwise would be in place have to be relaxed. [00:12:17] Speaker 05: I mean, that's the broad theory. [00:12:18] Speaker 05: I'm going to [00:12:20] Speaker 05: quiz the government about the broader ramifications of the decision against it here. [00:12:26] Speaker 05: But that's the way to think about this. [00:12:28] Speaker 04: Well, they want an implicit override in a situation where when Ms. [00:12:35] Speaker 04: Quintero comes back to the office, she's lost 13 out of her 90 days. [00:12:39] Speaker 04: And instead of doing what Congress has mandated, which is to ask the tribes, say, look, we lost 13 days here. [00:12:48] Speaker 04: We'd like an additional 13 days. [00:12:50] Speaker 04: Will you consent to that? [00:12:52] Speaker 04: Rather than do that, she wrote a letter unilaterally saying, we're giving ourselves a mulligan. [00:12:57] Speaker 04: We're taking another 13 days. [00:12:59] Speaker 04: Didn't ask for any response from the Navajo Nation. [00:13:03] Speaker 04: Now, how that can be proper conduct by the agency where Congress has gone to the trouble of setting this very specific 90-day rule. [00:13:14] Speaker 05: How are you all harmed in this case by the additional 13 or 15 days? [00:13:20] Speaker 05: 13 days. [00:13:22] Speaker 05: Because Congress has set up a system, Your Honor, which says... My question is, were you harmed in any way by the additional 13 days in this case? [00:13:30] Speaker 04: Well, we're harmed if we can't get our... if our proposal isn't deemed accepted, which is what Congress has said should happen. [00:13:37] Speaker 04: Other than that... What more harm should we need beyond that, Your Honor? [00:13:42] Speaker 05: I'm just asking, is there any other harm other than that? [00:13:46] Speaker 02: No. [00:13:46] Speaker 02: Mr. Gordon, you said that they could have denied it with a stroke of a pen. [00:13:50] Speaker 02: That's not an onerous burden. [00:13:53] Speaker 02: Why is the November 7th letter on page 96 of the appendix not enough to say, at least in part, that they're denying the request, which refers to the maintenance of existing courts and program facilities and points out that that's being dealt with under the Office of Justice Services and Facilities and Maintenance Program says, just take that out because that's not really appropriate. [00:14:17] Speaker 04: What they were saying, Your Honor, was this. [00:14:19] Speaker 04: It costs the Navajo Nation [00:14:21] Speaker 04: on the order of – it caused the Navajo Nation every penny of what they sought. [00:14:25] Speaker 04: The government's only been covering a small fraction of it. [00:14:29] Speaker 04: And what that letter was really saying is, you've asked for a large increase. [00:14:35] Speaker 04: We want you to take that request off the table. [00:14:38] Speaker 02: But they point to why they say it's inappropriate. [00:14:41] Speaker 02: I'm sorry? [00:14:42] Speaker 02: And the letter points to why it said it's being dealt with in another bucket of money, as I understand it. [00:14:48] Speaker 02: It's being addressed by Office of Justice Services and Office of Facility and Maintenance. [00:14:53] Speaker 02: So this shouldn't be part of a SAFA proposal, but submitted as separate. [00:14:58] Speaker 04: That's the bureaucratic gobbling book, Your Honor. [00:15:01] Speaker 02: That's why I want your help in translating it. [00:15:03] Speaker 02: I'll ask the government also. [00:15:04] Speaker 04: It's basically saying, you've got $1.3 million. [00:15:07] Speaker 04: Take your request for the additional funds off the table so that we don't have to decline We want you to withdraw your request rather than us having to decline and you know What we're just not going to do anything until you see the light and take it off the table That's what that letter says in plain English. [00:15:23] Speaker 02: How do you understand what it says in the preceding paragraph? [00:15:28] Speaker 02: pages one and two [00:15:30] Speaker 02: New Legislation Tribal Law and Order Act reflect activities beyond the current SOW and beyond the level of funding. [00:15:38] Speaker 02: I mean, here also they're saying, uh-uh, this, you know, we can't. [00:15:43] Speaker 04: As I said, the proposal saw a large increase in funding. [00:15:49] Speaker 04: And the BIA was entitled to say, we're not going to give you one additional dollar. [00:15:56] Speaker 04: So they're pointing out what is obvious, which is you're seeking a large increase. [00:16:00] Speaker 04: And we want you to withdraw. [00:16:02] Speaker 04: That is what that letter is saying. [00:16:04] Speaker 02: So you say that they wouldn't have been a problem if they had said, we will not fund in those two paragraphs. [00:16:08] Speaker 02: We will not fund anything that we think falls under. [00:16:10] Speaker 04: Then it would have been a partial declination, which is what they ultimately issued untimely in January. [00:16:14] Speaker 04: They could have issued the partial declination [00:16:17] Speaker 02: But once they do that, then there's no more negotiation, right? [00:16:21] Speaker 04: Well, there can be. [00:16:22] Speaker 04: That's my point. [00:16:23] Speaker 04: Because the tribe can submit a new proposal at any time. [00:16:26] Speaker 04: So you can decline, thereby satisfying the 90-day deadline, and then say to the tribe, all right, now let's talk about what lesser amount we might be willing to provide for you. [00:16:38] Speaker 04: But it's very simple. [00:16:40] Speaker 04: But rather than do it the way that the statute requires, they unilaterally gave themselves the additional 13 days. [00:16:47] Speaker 04: And then they demanded, what appears to be sort of a test of wills, that the nation take off at the table its request. [00:16:55] Speaker 04: And the nation was unwilling to do that. [00:16:57] Speaker 04: It didn't. [00:16:58] Speaker 02: Forgive my lack of familiarity with the context, but the whole thing seems a little [00:17:05] Speaker 02: shall we say fictional, where there is supposedly requesting and negotiating, but there's just a pot of money that's being given. [00:17:13] Speaker 02: And what leeway is there for getting more money or getting less money? [00:17:17] Speaker 02: I mean, at the end of the day, they say, we only have this much money, sorry. [00:17:20] Speaker 04: They can say that, Your Honor, anytime, as long as it's within 90 days. [00:17:28] Speaker 05: OK, we'll give you some time for rebuttal. [00:17:30] Speaker 05: Thank you very much. [00:17:39] Speaker 03: May it please the Court? [00:17:41] Speaker 03: I'm John Cappell from the Appellate Staff Civil Division, U.S. [00:17:44] Speaker 03: Department of Justice, and I'm representing the Appellee Department of Interior on this, is the appeal. [00:17:52] Speaker 03: I don't have a great deal to add to the colloquy between the Court and the plaintiffs and the District Court's decision in our brief. [00:17:59] Speaker 06: The Council of the Governor frequently comes over here and tells us that he's toppled his multiply against the sovereign. [00:18:06] Speaker 06: Isn't it a bit unseemly for you to be coming over here and telling us it applies [00:18:13] Speaker 06: government-over-trust relationship? [00:18:15] Speaker 03: No, Your Honor, I don't think it's inappropriate, because the estoppel doctrine that originated in this recent incarnation, most recently in the Federal Crop Incorporate, FCIC versus Merrill, and then in subsequent cases like OPM versus Richmond and Heckler and Schweiger versus Hanson, [00:18:36] Speaker 03: It was designed and crafted by the Supreme Court for the benefit of the federal government, and it was to protect the federal fisc and federal law. [00:18:48] Speaker 03: It did not establish any kind of [00:18:53] Speaker 03: freestanding or all encompassing principle of estoppel for any sovereign entity like the state or local government or an Indian tribe. [00:19:09] Speaker 06: I'm not sure why not. [00:19:12] Speaker 06: When you say that, that's an answer. [00:19:18] Speaker 03: Well, I would emphasize that this doctrine does not derive essentially from sovereign immunity or from sovereign status, which is what the tribe is attempting to argue. [00:19:35] Speaker 03: It's really to protect, again, the federal law and the federal fist and the constitutional system, which [00:19:47] Speaker 03: Congress's appropriations authority is supposed to be supreme. [00:19:53] Speaker 02: So it's significantly about money, but is it really exclusive? [00:19:56] Speaker 02: Is this strand exclusively about money? [00:19:58] Speaker 02: There's the dignitary interest as well, and I do think it's a bit unseemly. [00:20:02] Speaker 02: The tribe points it out in the October 21st letter. [00:20:06] Speaker 02: There's a high-handedness about that. [00:20:09] Speaker 02: As you are aware, the government was on shutdown. [00:20:11] Speaker 02: We have 90 days after October 17, 2013, to approve, decline, or award the proposal. [00:20:18] Speaker 02: The 90-day period will end on January 15, 2014. [00:20:24] Speaker 03: Well, Your Honor, I wouldn't characterize that as being high-handed. [00:20:28] Speaker 03: I think the government was simply setting forth its understanding of the significance of the shutdown. [00:20:35] Speaker 06: Did you consider, and perhaps this is [00:20:48] Speaker 06: You're stopping them because they didn't respond, but it doesn't ask for a response. [00:20:55] Speaker 06: It simply declares, this is the law, we're sovereign, we're declaring it. [00:21:01] Speaker 06: It does call for a response. [00:21:02] Speaker 06: But why didn't you send a letter calling for a response? [00:21:05] Speaker 03: Well, we didn't in that first letter, but in the second letter, which was issued, the November 7th letter, which was issued after the BIA had thoroughly analyzed the tribe's proposal, it did call for a response, not specifically on the date of... Not at all on the date. [00:21:23] Speaker 03: No. [00:21:23] Speaker 06: But it... You're asking them to be stopped by silence when you didn't ask them to stop. [00:21:29] Speaker 03: Now, it is true, the government did not ask them to speak specifically on this question. [00:21:34] Speaker 03: Why not? [00:21:36] Speaker 06: Wouldn't you have a better case for estoppel if you had asked for a response on that question? [00:21:41] Speaker 03: Well, it might seem more sympathetic, but under the Supreme Court's decision in Weiser versus Lawler, which the district court relied on, it's not required, because there can be. [00:21:52] Speaker 02: Weiser was a very different situation. [00:21:54] Speaker 02: Weiser was a bystander, and in that case, [00:21:59] Speaker 02: Well, it was a bystander, and here you have two parties where the default rule is clear. [00:22:05] Speaker 02: You get to extend the time with the written consent of the other party. [00:22:10] Speaker 02: So it seems the burden would be on the government to obtain that written consent, no? [00:22:15] Speaker 02: Certainly, at least to request it, as the government did only after the deadline in the January 9th letter is the first time I see in the record. [00:22:22] Speaker 02: Please provide your written consent. [00:22:25] Speaker 02: for an additional 45 days. [00:22:27] Speaker 02: Nothing like that within the time frame. [00:22:30] Speaker 03: No, there was nothing. [00:22:30] Speaker 03: There was no statement to that effect. [00:22:33] Speaker 03: But again, I would emphasize that the ISTA really does contemplate an ongoing negotiation between the government and the tribes. [00:22:46] Speaker 03: And that's replete. [00:22:48] Speaker 03: There are references throughout the statute to that. [00:22:51] Speaker 03: And that's the principle that the BIA was operating under here. [00:22:55] Speaker 02: But there are two background clear legal duties here. [00:23:00] Speaker 02: One is, if you don't act on it within 90 days, it's deemed granted. [00:23:04] Speaker 02: And the other is, you don't get more time unless you seek extension. [00:23:08] Speaker 02: And so it would seem that, and especially given Mr. Gordon's characterization of the [00:23:15] Speaker 02: The burden of denying, if it's up against the deadline, you could, you know, to protect the government fisc, the government should have just said, okay, we're denying this and move forward from there, no? [00:23:29] Speaker 03: Well, as Your Honor indicated, one could interpret the November 7th letter as a partial declination in and of itself. [00:23:38] Speaker 02: Although none of your briefing does that. [00:23:40] Speaker 03: You talk about declination later. [00:23:41] Speaker 03: No, but that is the... But again, here... [00:23:46] Speaker 03: The government was actually trying to, the BIA was actually trying to help the tribe and to work with the tribe by sort of by engaging in a back and forth. [00:23:57] Speaker 02: I don't doubt that, but the question is whether the timely misdemeanors were attended to. [00:24:02] Speaker 02: I also, I see in the record this [00:24:05] Speaker 02: this contingency plan fact sheet, which sort of spells that in quite brief form on app 114, what the BIA would and wouldn't be doing in the event of a shutdown. [00:24:16] Speaker 02: I know most agencies will post such a notice on their website in the event of a shutdown and I think are often required to do that. [00:24:25] Speaker 02: Was there any, I don't see anything in the record that there was any such notice on the BIA's website or publicly on the door or any such thing. [00:24:35] Speaker 03: Your honor, I don't believe that there was anything on the door. [00:24:42] Speaker 03: However, there were signs in the vicinity indicating that the, and this was the Quintero declaration makes this point, that indicated that the office was essentially closed due to the government shutdown. [00:25:03] Speaker 05: Is there a general rule that shutdowns cause deadlines, statutory deadlines, that apply against the government to be suspended, postponed? [00:25:21] Speaker 05: I'm worried in resolving this case in either direction, frankly, that it [00:25:28] Speaker 05: establishes some basic rule that's going to apply to all sorts of statutory deadlines that are out there, presumably, and that are affected during a shutdown. [00:25:39] Speaker 03: Well, there's no body of case law that actually that establishes that. [00:25:45] Speaker 05: Is it OLC? [00:25:46] Speaker 05: Are there OLC opinions on that question? [00:25:50] Speaker 03: I believe the OLC opinion, the civility opinion that we refer to in our brief, basically it [00:25:59] Speaker 03: It addresses, it establishes the principle that only accepted and exempted employees can act. [00:26:08] Speaker 05: But that doesn't, right, I understand that part of it, but that doesn't really tell you, do statutory deadlines, should they be generally relaxed? [00:26:19] Speaker 05: whether by an absurdity principle, by some kind of broad congressional intent, statutory interpretation mode, or some other reason that statutory deadlines should be considered relaxed during a shutdown, or delayed, suspended, whatever the term might be. [00:26:36] Speaker 03: I would point out that there is the, we cited the district court decision, I believe it's the Herman versus International Union of Bricklayers, which established, which relies on tolling to, to, to [00:26:50] Speaker 03: to reach that result in a case where the shoe was on the other foot. [00:26:55] Speaker 03: I mean, the private party was seeking to be able to enforce its rights, and the government was saying that the time had expired during the shutdown. [00:27:11] Speaker 05: As far as you're aware, at least in the case law in NOR and OLC, is there some general statement a shutdown in appropriation means that statutory deadlines that are affected are delayed or postponed? [00:27:28] Speaker 03: I don't think that there is any specific statement to that effect. [00:27:32] Speaker 03: However, the principles that we've relied on, the Appropriations Clause and the Anti-Deficiency Act, lead to that conclusion. [00:27:40] Speaker 03: Did Mr. Slim violate the law here? [00:27:43] Speaker 03: No, Your Honor. [00:27:43] Speaker 03: Mr. Slim did not violate the law because he could take the sort of, the de minimis action that he took of actually just of... Of relieving. [00:27:54] Speaker 03: Not officially, but informally. [00:27:59] Speaker 06: That was to distinguish what he did from receiving. [00:28:03] Speaker 03: uh... what if uh... if the government if the office had been had been up and running if it had been appropriated and he had he had uh... taken it and then put it then put it in a folder or an envelope to give to the to give to the appropriate official that would have that's certainly that's what he would have done with it after he received how do you distinguish his [00:28:32] Speaker 06: receiving the document from receipt within the meaning of the statute? [00:28:38] Speaker 03: Well, he couldn't receive it. [00:28:39] Speaker 03: He could not receive it for legal purposes because he couldn't do anything that could conceivably bind the government contractually to accept. [00:28:50] Speaker 02: That's a very strange test. [00:28:52] Speaker 02: Neither does the employee in our clerk's office who received it have any authority to do anything that binds the government. [00:28:59] Speaker 02: The people who do the receiving and the stamping of receipt or the forwarding, they don't have authority to act on the papers that they're receiving, do they? [00:29:10] Speaker 03: No, they don't. [00:29:12] Speaker 03: No, they virtually never do. [00:29:14] Speaker 03: But there's a presumption that they're acting in the normal course of business with appropriations. [00:29:20] Speaker 02: Where does that presumption come from, though? [00:29:21] Speaker 02: Where does that presumption come from? [00:29:23] Speaker 03: Well, it basically comes from the structure of the Constitution and the Appropriations Clause and the Anti-Deficiency Act, which requires the... So if we're relying on the Constitution, then if [00:29:35] Speaker 02: the same thing happened, and Mr. Duncan would go by and hand something to him, and Mr. Slim happened to be working on a weekend, then that would be distinguished from your rule, and the weekend days would count? [00:29:47] Speaker 02: Because there's no constitutional bar against Mr. Slim receiving something on a weekend. [00:29:53] Speaker 03: No, no, there certainly isn't. [00:29:55] Speaker 03: The key fact is that the government was in shutdown, that there was a lack of appropriated funds. [00:30:03] Speaker 03: We're not arguing this. [00:30:07] Speaker 06: If it's not the other party's fault [00:30:19] Speaker 06: The government was the one to cut itself down. [00:30:22] Speaker 03: But it's not the responsibility of the executive branch, either, and it's the responsibility of Congress. [00:30:27] Speaker 03: But the executive branch is basically being held accountable for that when that was beyond its control. [00:30:35] Speaker 06: I think the United States is being held accountable for that, which includes the executive branch. [00:30:48] Speaker 06: The tribe was not responsible for the shutdown. [00:30:51] Speaker 06: Isn't that a bit unfair? [00:30:53] Speaker 06: Did you stop them against them? [00:30:57] Speaker 03: Your Honor, I respectfully disagree. [00:30:59] Speaker 03: I don't think it was unfair to, under the circumstances of this case, to use estoppel against them. [00:31:06] Speaker 03: The district court clearly found that on this record, the tribe was acting in bad faith and it wasn't engaging in fair and honest dealing with the BIA. [00:31:20] Speaker 05: Just thinking of other statutory rule deadlines, there's a government loses a case in the Court of Appeals and it has a deadline to file a petition for rehearing in bank and in the middle of that period there's a government shutdown for three days. [00:31:36] Speaker 05: Does that automatically extend the period for filing the petition for rehearing in bank? [00:31:43] Speaker 03: Well, it may. [00:31:46] Speaker 05: If the government is not in a position to... That's the kind of question that I think could be, and there must be a thousand examples like the one I just gave, that could be affected by how we resolve this case. [00:31:58] Speaker 05: I'm just a little bit at sea as to what the general rule should be. [00:32:03] Speaker 03: We do cite a case in our brief in which the government was required to litigate an ongoing case in the district court during the shutdown because the court found that there was a need for speedy disposition. [00:32:21] Speaker 03: So again, we're not saying that there may not be, but that doesn't establish any sort of principle [00:32:27] Speaker 03: that employees are generally accepted or accepted. [00:32:32] Speaker 05: On your receipt, so I'm not hugely persuaded by the estoppel argument, I'll just tell you that, but the receipt argument and the equitable tolling argument I think are strong arguments for you, but the receipt argument strikes me as opening up a can of worms because if we start saying, well, we can't interpret a statutory term to mean what it otherwise says, [00:32:53] Speaker 05: Because of a shutdown, that principle could be used all over the place in ways that would create some confusion, I think, at least to me. [00:33:02] Speaker 05: Whereas the tolling, I guess where I'm funneling into is the tolling argument strikes me as at least the narrowest ground in your favor that makes some sense here. [00:33:13] Speaker 03: Yes, Your Honor, I would agree with that characterization. [00:33:17] Speaker 03: We believe strongly that all three grounds are valid here and that the district court was correct on estoppel, but we certainly have argued equally vigorously for affirmance both on the [00:33:30] Speaker 03: on receipt and the relevant, the Appropriations Clause and the Anti-Deficiency Act and equitable tolling. [00:33:39] Speaker 03: We believe that on any of those grounds. [00:33:41] Speaker 05: Tolling, let me just get your reaction to this, how I'm thinking about it. [00:33:44] Speaker 05: Tolling would not automatically say that in a shutdown all sorts of deadlines are suspended, postponed, what have you, but would say in the facts of particular cases the courts could look at. [00:33:59] Speaker 05: the situation and decide that the deadline properly is delayed, postponed? [00:34:07] Speaker 03: That is correct, Your Honor. [00:34:08] Speaker 03: Tolling, by its very nature, really invites that type of case-by-case inquiry and doesn't establish the broad principle it required. [00:34:20] Speaker 06: It normally requires the party asserting [00:34:26] Speaker 06: I'm not sure that I see that you offered any evidence of either of those. [00:34:40] Speaker 03: Well, Your Honor, again, I would respectfully disagree. [00:34:51] Speaker 02: And what extraordinary circumstance stood in the way of the BIA acting on this request by the shorter 90-day deadline, as originally calculated? [00:35:04] Speaker 02: There's no extraordinary circumstance standing in them. [00:35:06] Speaker 05: Why don't you answer Judge Santel's question, then answer Judge Pillard's question? [00:35:09] Speaker 03: All three of them. [00:35:11] Speaker 03: Let me make sure I get them straight. [00:35:15] Speaker 03: Judge Santel's question again was. [00:35:17] Speaker 06: Number one, what is the evidence that you diligently pursued [00:35:22] Speaker 06: Number two, what is the extraordinary? [00:35:25] Speaker 06: Well, actually, number two is just pillars and are pretty much at the same thing. [00:35:29] Speaker 06: So try to take them both stereotomy. [00:35:32] Speaker 03: OK. [00:35:32] Speaker 03: Well, the due diligence actually is reflected in the correspondence. [00:35:41] Speaker 06: The one that didn't ask them for any agreement or didn't ask for any extension. [00:35:47] Speaker 03: It didn't, but it made clear that the BIA was exercising its responsibilities. [00:35:52] Speaker 03: The first letter acknowledged receipt and basically said that the proposal would be processed. [00:36:01] Speaker 03: Excuse me? [00:36:03] Speaker 03: No, Your Honor, because the second letter, the November 7th letter actually [00:36:08] Speaker 03: made clear that the agency had analyzed the proposal and was doing exactly what it was supposed to do in processing a tribal proposal. [00:36:27] Speaker 03: Well, actually, it would have been assumed, because it's clear that they could have and would have even done it by January 2nd, if they had not been under this misapprehension that they were on the same page with the tribe. [00:36:46] Speaker 06: Is that clear to you that they would have done it by January 2nd? [00:36:50] Speaker 03: Well, yes, Your Honor, from this record. [00:36:54] Speaker 06: But before the shutdown, they would have done it by then. [00:36:57] Speaker 03: that's essentially what the Quintero declaration, excuse me? [00:37:05] Speaker 03: It is. [00:37:07] Speaker 03: On this record, we believe that it is clear. [00:37:10] Speaker 03: Did you get Judge Pillard's question answered? [00:37:13] Speaker 03: I was coming to that. [00:37:15] Speaker 03: I believe that was on the extraordinary circumstances. [00:37:18] Speaker 03: And that was the extraordinary circumstance was it was the shutdown, the loss of the 13 days, and the attendant [00:37:34] Speaker 03: both the government's attendant failure to process it prior, by January 2nd. [00:37:47] Speaker 03: The record is clear that it would have done so if it had not been deprived of those 13 days. [00:38:00] Speaker 02: But the Supreme Court quite recently said that the extraordinary circumstance prong is met only where the circumstances that cause the delay are both extraordinary and beyond the litigants' control. [00:38:14] Speaker 02: And the United States government caused the shutdown. [00:38:18] Speaker 02: And I mean, really, I think it would be one thing in the extraordinary circumstances [00:38:23] Speaker 02: claim if this were an 88-day shutdown, or even an 80-day shutdown, or that it happened at the back end. [00:38:30] Speaker 02: But it's a little harder to swallow in this circumstance, where the evaluation that is needed to act on this request is not anything that's going to take anywhere near the 90 days. [00:38:51] Speaker 02: using up of time was de minimis and early. [00:38:55] Speaker 03: It's a little bit hard to say this is an equitable tolling situation. [00:39:10] Speaker 03: I think that we're probably beating a dead horse on this, but the extraordinary circumstance really derives from the fact that the government lost the 13 days. [00:39:24] Speaker 05: The shutdown, it really depends on that, whether the United States as a whole [00:39:29] Speaker 05: suffers the consequences of that, or the executive branch and Congress are treated differently on that? [00:39:35] Speaker 05: That's correct, Your Honor. [00:39:37] Speaker 05: Let me ask you, how much money is at stake in this case? [00:39:43] Speaker 03: A lot of money, Your Honor. [00:39:44] Speaker 03: The difference was between less than $1.3 million and more than $17 million. [00:39:52] Speaker 03: So it's more than 13 times as much. [00:39:55] Speaker 03: It's more than $15 million. [00:39:58] Speaker 03: difference. [00:40:00] Speaker 03: And we believe that whichever ground one chooses, the district court sentiment that the tribe should not be allowed to profit [00:40:14] Speaker 03: in this fashion was justified. [00:40:19] Speaker 03: There are different ways of looking at it, but it was not, the district court clearly thought that the tribe was essentially trying to play a game of gotcha with [00:40:32] Speaker 03: with the United States here, and it shouldn't be allowed to have that windfall. [00:40:37] Speaker 03: And whichever basket one chooses, if it's a stoppile, official receipt, or equitable tolling, the result should be the same. [00:40:47] Speaker 03: The judgment should be affirmed. [00:40:48] Speaker 05: Okay, thank you very much. [00:40:49] Speaker 05: We'll hear two minutes for rebuttal. [00:40:59] Speaker 04: May it please the court? [00:41:01] Speaker 04: I want to address your point, Judge Kavanaugh, and say that in our view, this case is not a shutdown case. [00:41:10] Speaker 04: The shutdown is a sideshow. [00:41:13] Speaker 04: The shutdown is simply the explanation for why 13 out of the 90 days were lost. [00:41:18] Speaker 04: And the focus of this case is, in fact, on the 90-day provision, which Congress put in specifically to remediate an ongoing problem of the BIA and IHS not responding promptly to these tribal proposals. [00:41:35] Speaker 04: The tribal governments can't function if they don't know how much money they're going to get from the government. [00:41:41] Speaker 04: And Congress got sick and tired of the foot dragging, and it put in a very deliberate deadline. [00:41:49] Speaker 04: And the rule is that the proposal comes in, and if the government doesn't act, that proposal is accepted. [00:41:54] Speaker 04: This is not a windfall. [00:41:56] Speaker 04: This is not a windfall in any way, shape, or form. [00:41:58] Speaker 04: This is money that the Navajo Nation is already spending on its justice system. [00:42:03] Speaker 05: What if we knew that if it had been you [00:42:07] Speaker 05: If we knew that it wouldn't have been granted the proposal, and we know that, if it had been submitted by June or 2nd, then why isn't it a windfall? [00:42:18] Speaker 04: That doesn't make it a windfall. [00:42:20] Speaker 04: All that is is that the BIA failed to do what it was supposed to. [00:42:24] Speaker 04: The BIA is completely aware of the deadline. [00:42:27] Speaker 04: The BIA is completely aware of the written consent requirement. [00:42:31] Speaker 04: The BIA didn't do its job and now it wants to blame the Navajo Nation for that and it stands here rather nakedly and says, please save us from ourselves and blame it on the Navajo Nation. [00:42:44] Speaker 05: Well, the ultimate question, I take your point on the deadlines, and I agree with that sentiment as you expressed it as to what Congress intended with those deadlines. [00:42:53] Speaker 05: But what we don't know necessarily is how Congress intended that to mesh with the Anti-Deficiency Act in the context of government shutdown. [00:43:01] Speaker 05: That's what we're trying to sort out. [00:43:03] Speaker 05: If we didn't have the Anti-Deficiency Act, I don't think this would be as [00:43:07] Speaker 04: There's no violation of the Anti-Deficiency Act here, Your Honor. [00:43:12] Speaker 04: Look, there are tolling. [00:43:13] Speaker 04: I agree with the Court that you could construct other scenarios that would make a more compelling case for equitable tolling. [00:43:21] Speaker 04: I suggested one myself earlier. [00:43:23] Speaker 04: And we're not asking for a broad rule. [00:43:28] Speaker 04: We're saying in the context of this case, where 13 days were lost at the start of the 90-day period, [00:43:34] Speaker 04: that there is no excuse for the government giving itself – saying we can give ourselves a mulligan. [00:43:41] Speaker 04: We can extend that unilaterally. [00:43:44] Speaker 04: No. [00:43:44] Speaker 04: Ms. [00:43:44] Speaker 04: Quintero could have been on vacation. [00:43:46] Speaker 04: Ms. [00:43:46] Speaker 04: Quintero could have been sick for two weeks. [00:43:48] Speaker 04: Any number of things could have happened, and the government wouldn't dare open its mouth and make the argument it's made here. [00:43:54] Speaker 04: It's trying to use the shutdown to excuse its own dereliction. [00:44:00] Speaker 05: Do you think it was dereliction or just a mistake? [00:44:02] Speaker 05: It's not like they're foot dragging. [00:44:05] Speaker 05: It's that they think that they're correct on the law. [00:44:08] Speaker 05: It's not like, oh, they're sitting around and just ignoring deadlines. [00:44:12] Speaker 04: But let me ask this question, though. [00:44:16] Speaker 04: Do we believe, does anyone in this courtroom believe for a minute that before Ms. [00:44:20] Speaker 04: Quintero set that October 21st letter where she unilaterally said we've got another 13 days, that she consulted with lawyers at the BIA? [00:44:30] Speaker 04: Do we really think this is based on legal advice? [00:44:33] Speaker 04: Well, probably. [00:44:34] Speaker 04: Yeah, I guess I'd answer that yes. [00:44:36] Speaker 06: As you said in turn to another question, it's not in the record count. [00:44:40] Speaker 06: You're right, Your Honor. [00:44:42] Speaker 04: I mean, you're absolutely right. [00:44:43] Speaker 06: You're going to use that theory to stop from asserting this question. [00:44:46] Speaker 04: Yeah, you're right. [00:44:47] Speaker 04: You're right. [00:44:49] Speaker 04: Ow, ow. [00:44:50] Speaker 05: But really, I mean, the idea, I guess the tone of the government's doing something nefarious here. [00:44:58] Speaker 05: There are lots of cases where I would agree with that tone. [00:45:00] Speaker 05: I don't really agree with the tone in this case. [00:45:02] Speaker 04: It's not nefarious. [00:45:03] Speaker 04: Well, we're not suggesting this in the first – what I think it – what I do suggest that it is is this much more of sort of a power struggle where the BIA has said in the November 7th, take that request off the table, and the nation says – basically says through its silence, no, we're not going to take it off the table, either grant it or don't grant it. [00:45:24] Speaker 04: And the BIA then waits until mid-January to act. [00:45:30] Speaker 04: All right, interesting and challenging case. [00:45:32] Speaker 05: Thank you both for the arguments. [00:45:33] Speaker 05: The case is submitted.