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The United States Court of Appeals for the Federal Circuit is now open at this session.

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God save the United States in this honorable court.

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Good morning.

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We have five cases on the calendar this morning.

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One from the Board of Contract Appeals, three patent cases, and a veterans case.

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The last will be submitted on the briefs and not be argued.

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Our first case is New York Tribe versus the U.S.

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Department of the Interior, 14-1529, Mr. Nesbitt.

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Morning, Your Honors.

[00:01:12] Speaker 03:
May it please the Court, my name is Nate Nesbitt.

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I represent the Yurok Tribe.

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This appeal is about the Bureau of Indian Affairs' failure to approve or to decline the Tribe's Title I contract proposal within the 90 days set forth in the ISDA and its accompanying regulations.

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Pursuant to that act and its regulations, the Bureau's failure to decline the Tribe's proposal within that 90-day window resulted in the approval of... Council, suppose we accept your arguments and

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the contract is deemed approved.

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This is just argument purposes.

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What kind of relief are you looking for?

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Is there any relief available?

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Given that the statute talks about transferability of services and not raising any funding available under existing programs, what's the relief here?

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The relief is holding by the court that a contract exists

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per the terms of the tribe's contract proposal because the Bureau did not decline that proposal within 90 days.

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So in short, a contract.

[00:02:15] Speaker 04:
The relief would be... But it looks like the contract would give you zero, though.

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It's a contract for zero dollars.

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So I think your question gets to the issue of whether a contract could come into being notwithstanding that the Bureau was not at the time of the tribe's proposal providing directly to the Yurok Tribe,

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the programs or services that it requested.

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As to that issue, there's no requirement in the Act that the Bureau be directly providing the services that are the subject of the Title I proposal at the time of its proposal in order to give rise to a contract.

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The Self-Determination Act defines these contracts as those for programs or services, quote, otherwise provided to Indian tribes and their members pursuant to federal law.

[00:03:02] Speaker 05:
Correct.

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It would transfer over existing services.

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And I understand the argument that

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these services existed before at one time, and current funding can be traced back to a point where some of these law enforcement activities were transferred to the tribe.

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But what's left?

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I mean, they've already transferred all of these functions.

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There's no longer any money in the federal coffers to give you or to transfer.

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The statute does not allow

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raising funding above existing level, and if the existing level is zero, then funding can't be raised above zero.

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So the provision that I'm understanding, Your Honor, to mention is the secretarial amount provision, 451-J1A, I believe, in the statute.

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And the language there sets a funding floor in the circumstance of requesting tribes that is then the recipient of the programs or services that it is requesting.

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And so what that provision means is the BIA must provide at least that amount.

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That provision does not set a ceiling.

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The BIA is free to approve a proposal.

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They're not providing any amount, so they can't go above that.

[00:04:15] Speaker 03:
Well, as I say, the tribe is free to propose any amount in the contract that it likes, and the Bureau is free pursuant to one of the five exclusive declination rationales to decline a proposal that proposes funds

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beyond those that it would have otherwise provided.

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But that's precisely the issue in this case.

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The Bureau had the opportunity to do that, and it failed to do so within an hour.

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I understand, and I'm saying, assuming that we agree with you, and that there's a deemed contract.

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But what is it that you win?

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What is it that's going to be awarded?

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Under the statute, it's zero.

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So what we awarded is what the tribe requested, because the deemed approval mechanism set forth in the statute supplants

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the Bureau's agreement that it would otherwise have provided.

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What's your restriction properly in the Board of Contract Appeals?

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Doesn't the statute provide appeals to the federal district court?

[00:05:11] Speaker 03:
That is an alternative avenue that the tribe could have pursued, gone directly to the federal district court.

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Why is that alternative?

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Isn't that prescribed?

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I don't believe so, Your Honor.

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I think the Tribe can pursue directly in the Federal District Court or can also pursue a CDA claim, which is what the Tribe opted to do here.

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It also filed contemporaneously in the Interior Board of Indian Appeals.

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Am I right that the way that the jurisdiction goes is the Interior Board of Indian Appeals, if it's a pre-contract dispute and the CFC is if it is a post-contract dispute, is that fair?

[00:05:51] Speaker 03:
That's right.

[00:05:52] Speaker 01:
So why isn't this a pre-contract dispute?

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You have a deemed approval, but you don't actually have a contract yet.

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In fact, what you've asked us for in your remand is remand for the precise delineation of a contract.

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In fact, we do have a contract, not just the Act itself and its regulations speak in terms of the proposal being

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deemed approved and awarded within the 90-day period.

[00:06:19] Speaker 01:
No, it says deemed approved and a contract shall be awarded.

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I thought the statute actually afforded of two separate things.

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There is a deemed approval and then there is a subsequent award of a contract which would then take place pursuant to a deemed approval.

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Both the statute and its regulations provide that both deemed approval and award of the contract take place within that 90-day.

[00:06:39] Speaker 01:
Yeah, they didn't do it.

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They didn't award it within 90 days.

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So, you know, now we're, they didn't comply, but that doesn't mean it morphed into a contract.

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How does an approval morph into a contract when they haven't actually given you the contract yet?

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I mean, you acknowledge that the proposal isn't just rubber stamps, that it is conformed into a contract, that it is not, there's not even a signature line on the proposal for either party, and what you've actually asked for by way of relief is that we remand for the contract to be drawn up, created, and put into place.

[00:07:14] Speaker 03:
Well, I think what would take place on remand is any kind of gap filling that would be required.

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What we know are the terms of the TRIES proposal would become part of the contract as would, for example, the model self-determination agreement.

[00:07:27] Speaker 01:
But there are always conditions by the government that are added in as part of the contract, and that's what you're anticipating will occur as part of the actual articulation of the contract as opposed to the deemed approval of the proposal.

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I just, I'm struggling.

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I don't see how this case squarely belongs in the Court of Federal Claims.

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I'm glad that you had the foresight to file in both places so that you preserved your rights in either case.

[00:07:52] Speaker 03:
Well, I mean, I think it's important to be precise about the language in the statute and in the regulations and in BIA's own handbook on this point.

[00:07:59] Speaker 01:
I mean, BIA's own handbook says... Yeah, but who cares about the handbook?

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What does the statute say?

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Because that's what we have to follow.

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We don't follow a handbook.

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that both the deemed approval and the award take place in the 90 days.

[00:08:11] Speaker 01:
Yeah, but okay.

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And that happens as a matter of law.

[00:08:15] Speaker 01:
There's no... Where does it say it happens as a matter of law?

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Where does the statute say that?

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I have to reference... What precise statutory section are you talking about?

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900.18, I believe, of the statute of the regulations, excuse me.

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The proposal that is not declined within 90 days is deemed approved and the Secretary shall award the contract or any amendment or renewal within that 90 day period.

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But they didn't.

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I mean, they didn't.

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They clearly violated the regulation.

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If you're right, you've got a deemed approval, and they haven't awarded the contract within 90 days.

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So what we can force them to do is award the contract, except if there isn't actually a contract, we don't actually have jurisdiction over this.

[00:09:17] Speaker 01:
It would go to the Indian Bureau.

[00:09:21] Speaker 03:
The tribes' reading of that provision and the corresponding regulation, which I believe is 900.18.

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That's what I was reading.

[00:09:27] Speaker 01:
I'm sorry.

[00:09:27] Speaker 03:
I was reading 900.18.

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the approval and award of the contract take place as mandated by that language within the 90-day period.

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So there's no additional signature required, for example.

[00:09:42] Speaker 01:
But you recognize that there is an additional contract required, that the proposal doesn't delineate every precise term and that there will, in fact, be a contract.

[00:09:52] Speaker 01:
You expressly acknowledge that both in your briefing below and in your briefing to us, and the relief that you thought was a remand for the creation of that contract.

[00:10:02] Speaker 03:
Well, the relief that we're requesting is that the Board declare that a contract exists.

[00:10:06] Speaker 03:
We don't know all the contract terms, but we know the important terms, namely those included in the TRIs proposals.

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Those become part of the contract by virtue of BIS having waived its ability to decline the contract by failing to respond within 90 days.

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And what would take place on remand is, as you suggested, sort of gap filling in terms of the precise minor terms of the contract.

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Now, with these services that the

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BIA would otherwise provide.

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That's part of the authorization.

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These are services that the BIA is authorized to administer for the benefit of Indian tribes pursuant to federal law.

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So that language sets the ambit.

[00:10:54] Speaker 06:
But weren't the tribes doing it?

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I'm sorry, Your Honor.

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Weren't the tribes already performing these services?

[00:11:00] Speaker 03:
The tribe was performing these services, Your Honor.

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So it's not a service that the DIA was providing and would transfer to the tribe.

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The tribe was already doing it.

[00:11:15] Speaker 03:
The Bureau provides these types of services to Indian tribes and their members.

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They weren't providing them to the Yurok tribe at the time of the tribe's request.

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But that's not what the ISDA requires.

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The ISDA simply requires that the programs be those authorized, that the secretaries authorized to administer,

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for the benefit of Indians, in this case under the Snyder Act, which obligates the Bureau to provide for law enforcement and tribal justice services.

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And that's exactly what the tribe requested here.

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The legislative history is important to note on this point.

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The 1988 Senate report clarified that the tribes are eligible to contract for any program or function operated by the Bureau for the benefit of tribes

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regardless of whether such specific programs or functions are operated locally.

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That is, as long as BIA is providing these funds to Indian tribes and their members, they are the proper subjects of a Title I proposal.

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And BIA must respond within the 90 days and decline.

[00:12:12] Speaker 05:
So this goes back to my initial question to you.

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So at one point, the BIA was providing these services.

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Those services were transferred over to the tribe.

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And the tribe is now performing, they got one dispatcher, civil officer,

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and they're looking for more.

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So even if we were to say, okay, we agree with you, it's a deemed awarded contract, the contract's deemed awarded, then we look at what is it that the BIA is providing now and what funding?

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And the answer is zero.

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So what is it going to do with your contract?

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How does the BIA

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fulfill its obligation if its obligation is zero.

[00:12:59] Speaker 03:
Well, its obligation is not zero.

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I mean, the provision that we're talking about is the secretarial amount provision.

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And what that provision does is set a funding floor.

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It doesn't set a ceiling.

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If the BI wants to decline a TRI's proposal for an amount in excess of that which it would have otherwise provided for those programs or services, it must decline within the 90 days set forth in the act.

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otherwise the proposal is deemed approved.

[00:13:26] Speaker 05:
And I can see it.

[00:13:27] Speaker 05:
Let's say that the BIA was providing services at five million dollars or ten million dollars and we deem approved your contract, then you'd have five or ten million dollars to go against.

[00:13:40] Speaker 05:
We'd say we want part of all that money transferred over to us.

[00:13:44] Speaker 05:
But the BIA is not providing any services.

[00:13:47] Speaker 05:
There's zero dollars in right now.

[00:13:49] Speaker 03:
Well, I think we're

[00:13:52] Speaker 03:
Where I would differ is that if the tribe proposed a funding in the amount of $6 million, say, and the Bureau is providing $5 million, it couldn't provide less than the $5 million, but it could provide $6 million.

[00:14:06] Speaker 03:
And indeed, it would be obligated as a matter of law to do so if it failed to decline the tribe's proposal within the time period set forth in the Act.

[00:14:13] Speaker 06:
Mr. Nesbitt, you're into your rebuttal time, which you wish to save.

[00:14:17] Speaker 03:
I'll reserve the remaining time.

[00:14:18] Speaker 06:
Thank you.

[00:14:19] Speaker 06:
Fine.

[00:14:19] Speaker 06:
We'll save it for you, Mr. Ashman.

[00:14:32] Speaker 02:
May it please the Court, Your Honors, this case raises a pre-award contract dispute that the Civilian Board of Contract Appeals cannot... Why did you not argue that in your briefs?

[00:14:41] Speaker 01:
I was baffled.

[00:14:42] Speaker 01:
I went back and found that argument clear as day, presented below, argued effectively, and then the Board just didn't reach it, and then you didn't bring it up again.

[00:14:53] Speaker 01:
You argued it went to jurisdiction, which may or may not be correct.

[00:14:56] Speaker 01:
It might be failure state of claim.

[00:14:57] Speaker 01:
It might be jurisdiction.

[00:14:59] Speaker 01:
Why didn't you bring it back up in your brief to us, especially given your argument that it was a jurisdictional position?

[00:15:06] Speaker 02:
Your Honor, when the board's statement on its jurisdiction did state the general principle that all is necessary is a non-frivolous allegation of a contract.

[00:15:15] Speaker 02:
And when we reviewed it, we initially agreed with that.

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In this case, there is the statute 450F paragraph B that also applies.

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And it was a mistake for us not to identify

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and we apologize for the inconvenience, no doubt, caused the court.

[00:15:32] Speaker 05:
So you agree you went beyond, the 90-day period was triggered.

[00:15:38] Speaker 05:
So are you saying that the contract is deemed approved?

[00:15:43] Speaker 02:
No, Your Honor.

[00:15:44] Speaker 02:
As an initial matter, we don't agree that the 90 days was ever triggered.

[00:15:47] Speaker 02:
As we argued in our brief, the statute requires the 90 days to be triggered upon receipt of a proposal.

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And our position is there was never a

[00:15:58] Speaker 05:
legally sufficient proposal that was submitted to be a challenge that we never challenge the law provides you a 90-day period to come back and challenge this type of request or this type of a claim and if you think it's not legally sufficient you got 90 actually got two periods you can raise it up and have a 15-day period or and that's for clarity or you have 90 days in which to decline but you didn't do that

[00:16:26] Speaker 02:
That's correct, Your Honor.

[00:16:27] Speaker 02:
The BIA did not respond within 90 days.

[00:16:30] Speaker 05:
Do you agree that the statute's clear, that if you don't decline, and decline according to some of those five statutory criteria, that it's deemed approved?

[00:16:41] Speaker 02:
It is clear, Your Honor, that 90 days is triggered after the receipt of a proposal, and there has to be a declination within one of the five stated reasons in the statute.

[00:16:51] Speaker 02:
But the statute also says the 90 days is triggered on receipt of proposal.

[00:16:55] Speaker 02:
Now, BIA did respond to the tribe on October 28, 2011, saying the intent of their letter, their October 12, 2011 letter, was not clear and asked for further clarification.

[00:17:09] Speaker 05:
Now, there's... Which was kind of astonishing.

[00:17:11] Speaker 05:
The tribe's letter says Title I proposal on it, and then you're writing back and you're saying, we're not clear if this is a title, whether you see this as a Title I or Title IV proposal,

[00:17:25] Speaker 05:
And, but you never did come back and say, under the statute and pursuant to the regulations, we hereby decline your request, whether it's Title I or otherwise, pursuant to the following criteria.

[00:17:39] Speaker 05:
You didn't do that.

[00:17:40] Speaker 02:
That's correct, Your Honor.

[00:17:41] Speaker 02:
That was not, BIA did not, we did not make that.

[00:17:44] Speaker 05:
And had you done that, we wouldn't be here today, correct?

[00:17:46] Speaker 05:
That's correct, Your Honor.

[00:17:48] Speaker 05:
But we're here because you didn't do it.

[00:17:49] Speaker 05:
So can we, can, are we looking at a contract that's been deemed approved?

[00:17:54] Speaker 05:
under your own regulations?

[00:17:57] Speaker 02:
No, Your Honor, because there's the second aspect of this that was discussed earlier, is that a Self-Determination Act contract addresses existing programs or services.

[00:18:08] Speaker 01:
Why?

[00:18:08] Speaker 01:
The statute says, which the Secretary is authorized to administer for the benefit of the Indian.

[00:18:17] Speaker 01:
Isn't the Secretary authorized to administer police and judicial services for the benefit of Indians?

[00:18:22] Speaker 02:
Yes, Your Honor.

[00:18:23] Speaker 01:
So a self-determination contract can be granted on anything which the secretary is authorized to administer for the benefit of Indians.

[00:18:32] Speaker 01:
You acquiesce that they are in fact authorized to administer exactly these programs for Indians.

[00:18:38] Speaker 01:
And they do for other tribes, just not for this particular tribe.

[00:18:42] Speaker 01:
I don't understand.

[00:18:42] Speaker 01:
That's the statute.

[00:18:43] Speaker 02:
The statutory provision that we would rely on for making this point, Your Honor, is section 450J-1.

[00:18:52] Speaker 02:
Which deal, which addresses the amount of funding which was being discussed earlier?

[00:18:56] Speaker 01:
150 J, give me a second to get to it.

[00:19:01] Speaker 01:
J-1, the amount of funding under the terms of the self-determination contract entered into pursuant to this chapter shall be not less than the secretary would have otherwise provided for the benefit of the program thereof for the period of the contract without regard to any organization level.

[00:19:19] Speaker 01:
How do I know you wouldn't have provided?

[00:19:21] Speaker 01:
I mean, they're asking for a contract in the future for police and judicial services.

[00:19:27] Speaker 01:
And it says that what you can't give them is less than you would have otherwise provided.

[00:19:34] Speaker 01:
Doesn't say you can't give them more than what you would have otherwise provided, correct?

[00:19:37] Speaker 02:
That's correct, Your Honor.

[00:19:39] Speaker 02:
How we're relying on section 450J-1 paragraph A-1 is to inform our interpretation of ISDA what is a contract.

[00:19:50] Speaker 02:
So our position is Congress could not have intended a scenario where BIA could approve a contract but not have to fund it.

[00:19:58] Speaker 02:
So in this case, there would be nothing under the statute.

[00:20:02] Speaker 01:
I don't understand this argument.

[00:20:03] Speaker 01:
I mean, the statute, I mean approve but not have to fund it.

[00:20:07] Speaker 01:
Of course you have to fund it.

[00:20:08] Speaker 02:
Well, in this case, Your Honor,

[00:20:10] Speaker 02:
The BIA is not providing these programs or service.

[00:20:13] Speaker 01:
So this is 450... And that's why you had an obligation to act within 90 days.

[00:20:16] Speaker 01:
This would have been one of the five statutory criteria under which you could have declined the contract expressly under the statute.

[00:20:24] Speaker 01:
This funding is one of them.

[00:20:26] Speaker 01:
But you didn't do that.

[00:20:28] Speaker 01:
So go back to your piggy bank and find the money.

[00:20:32] Speaker 02:
Yes, Your Honor.

[00:20:33] Speaker 02:
We agree.

[00:20:33] Speaker 02:
We agree with what

[00:20:34] Speaker 01:
I just said, okay, wow.

[00:20:37] Speaker 01:
Are you sure you want to agree with what I just said?

[00:20:40] Speaker 01:
Piggy Bank Park doesn't cause you pause?

[00:20:42] Speaker 02:
It does, Your Honor.

[00:20:43] Speaker 02:
I apologize.

[00:20:43] Speaker 02:
To clarify, an issue is, was this a proposal for a contract?

[00:20:50] Speaker 02:
They were requesting a program or service that does not exist.

[00:20:54] Speaker 01:
But they were requesting a program or service which the Secretary has authorized to give them, and that's what the statute says.

[00:21:01] Speaker 01:
The statute doesn't say transfer an existing program.

[00:21:04] Speaker 01:
the secretary can make a self-determination contract for any program it would otherwise be authorized to give.

[00:21:13] Speaker 02:
So we do disagree on that interpretation, Your Honor, and we point to the Ninth Circuit's opinion in Los Coyotes, which they interpreted section 450J-1 to mean self-determination contracts address existing programs or services.

[00:21:28] Speaker 01:
But that's not, okay wait, but do you have 450F in front of you?

[00:21:31] Speaker 01:
I do.

[00:21:31] Speaker 01:
I would like you to pull it out.

[00:21:34] Speaker 01:
So part B is the part that's relevant to us, right?

[00:21:36] Speaker 01:
Big B, one big B. On 450A, Your Honor?

[00:21:40] Speaker 01:
450F, A, one, big B. That's the part that's relevant to us, right?

[00:21:49] Speaker 02:
Yes, Your Honor.

[00:21:50] Speaker 01:
Right.

[00:21:51] Speaker 01:
And it says, which the secretary is authorized to administer.

[00:21:54] Speaker 01:
So any self-determination contract can be granted for anything the secretary is authorized to administer.

[00:21:59] Speaker 01:
At least that's what the language says.

[00:22:01] Speaker 01:
You want me to limit it.

[00:22:02] Speaker 01:
to only things it's already administering, not things it's authorized to, correct?

[00:22:08] Speaker 01:
Yes or no?

[00:22:10] Speaker 02:
Yes, Your Honor.

[00:22:11] Speaker 01:
OK, now let's get to C. Look at C. Nobody raised C. But look at B, which says you can grant on anything the Secretary is authorized to administer.

[00:22:19] Speaker 01:
Then look at C, which says this kind of contract can only be authorized if it's currently being, quote, provided by Secretary of Health and Human Services.

[00:22:31] Speaker 01:
So why does that not draw exactly the statutory distinction that you want me to morph into B?

[00:22:38] Speaker 01:
Congress knew how to say when a contract could only be awarded if it is currently being provided by an agency.

[00:22:45] Speaker 01:
It did so expressly in C with regard to health and human services contracts.

[00:22:50] Speaker 01:
But with regard to B, it went broader and said anything which the secretary is authorized to provide, not which is already provided, just like C says.

[00:23:00] Speaker 01:
but which it is authorized to provide.

[00:23:03] Speaker 01:
Why isn't that important in the statutory interpretation, given that the section right under it says already providing, provided by?

[00:23:16] Speaker 02:
Your Honor, C does say provided.

[00:23:18] Speaker 02:
We don't necessarily read it as being provided to make that distinction.

[00:23:24] Speaker 02:
But we would also point out that there are programs and services that BIA provides to Indians for their benefit

[00:23:30] Speaker 02:
that they cannot transfer to Indians control because of the trust responsibility.

[00:23:35] Speaker 02:
And as we tried to point out in our brief, that authorized to provide that there's a distinction between there are things that BIA does for Indians for their benefit, such as land control.

[00:23:45] Speaker 01:
But even if that were true, that's not this case, right?

[00:23:48] Speaker 01:
This case isn't one of those unique situations where because of your trust responsibility, you can't turn something over to them, correct?

[00:23:54] Speaker 02:
That's correct, Your Honor.

[00:23:55] Speaker 01:
You're just trying to give me that as an example of why I shouldn't read the word authorized as broadly as I'm suggesting it needs to be read.

[00:24:02] Speaker 01:
I don't need to know.

[00:24:03] Speaker 01:
I'm understanding your argument, right?

[00:24:05] Speaker 01:
Yes, Your Honor.

[00:24:06] Speaker 01:
But I don't see how you can suddenly limit B to services that are already being provided by BIA when that's not what B says.

[00:24:15] Speaker 01:
It's clearly broader.

[00:24:16] Speaker 01:
And when C, in fact, limits it to services already being provided by HHS.

[00:24:21] Speaker 01:
I don't know.

[00:24:22] Speaker 02:
Our position, Your Honor, is that B has to be read in context with 450J-1.

[00:24:26] Speaker 01:
The one that says you can't award less than.

[00:24:30] Speaker 02:
Yes.

[00:24:30] Speaker 02:
And if it's a new program or service, you would have a situation in which... Well, guess what?

[00:24:35] Speaker 01:
He doesn't want less than what you gave him last year.

[00:24:37] Speaker 01:
He wants more than what you gave him last year.

[00:24:39] Speaker 01:
So I don't think that he would stand up here and suggest that he wants less or that anything he's doing would implicate the less than.

[00:24:46] Speaker 02:
Yes, Your Honor.

[00:24:48] Speaker 02:
If the court was to agree that this was a deemed to prove a contract and it went back to the board to work out the terms or to wherever to the secretary to work out the terms, right now the secretary is not obligated to provide under the statute to provide the tribe anything more than zero because that's what's being provided right now.

[00:25:04] Speaker 02:
That's the secretarial amount.

[00:25:05] Speaker 01:
Well, but if it's deemed, as Shajrena was saying earlier, I mean, if it's already deemed approved, there is a proposal that's deemed approved.

[00:25:13] Speaker 01:
Aren't you now on the hook for five million?

[00:25:16] Speaker 02:
Your Honor, the regulations state that the proposal does not become part of the contract unless the parties approve.

[00:25:23] Speaker 02:
And here the Secretary could take objection to this funding amount under the statute.

[00:25:27] Speaker 01:
He could have.

[00:25:29] Speaker 01:
Within the 90 days, he could have taken objection to the funding amount.

[00:25:32] Speaker 01:
Isn't this exactly what that 90-day period exists for?

[00:25:36] Speaker 02:
Your Honor, there's two steps to the process.

[00:25:38] Speaker 02:
There's the approval process, reviewing the proposal and approving it.

[00:25:42] Speaker 02:
And once it's approved,

[00:25:43] Speaker 02:
then it's the second step of working out the specific terms and issuing the contract.

[00:25:48] Speaker 02:
We're at that first step here.

[00:25:50] Speaker 05:
Is issuing the contract issuing the check?

[00:25:52] Speaker 05:
Is that the same thing?

[00:25:54] Speaker 05:
Under ISTA, it is, Your Honor, because it's... Let's go back to the... Now, my understanding that your interpretation, the government's interpretation of the statute and its own regulations is that the deemed approval process

[00:26:11] Speaker 05:
the deemed approved and the awarding of the contract process, it's all within that 90-day period, correct?

[00:26:21] Speaker 02:
Under the statute, it has to occur within that 90 days.

[00:26:24] Speaker 05:
That's your regulations and that's how you've interpreted that statute as well.

[00:26:29] Speaker 05:
Yes, Your Honor.

[00:26:31] Speaker 05:
That if you do not decline a request for a contract or a claim within the 90 days,

[00:26:40] Speaker 05:
It's not only deemed approved, and plus you have a contract.

[00:26:44] Speaker 05:
So anything that takes place after that is a post-award contract activity.

[00:26:51] Speaker 02:
No, Your Honor.

[00:26:52] Speaker 02:
It's deemed approved, and then the Secretary is commanded to take that second action of awarding the contract.

[00:26:59] Speaker 02:
But awarding the contract involves figuring out the contract's terms.

[00:27:03] Speaker 05:
Let me read, again, out of your handbook.

[00:27:05] Speaker 05:
And I know that your handbook's not lost.

[00:27:08] Speaker 05:
but it is your interpretation of your own regulations.

[00:27:11] Speaker 05:
It says, failure of an agency personnel to act within the 90-day period precludes the agency from asserting a declination issue and results in the award of a contract.

[00:27:22] Speaker 05:
Contract amendment, contract renewal, a successor AFA, or the grant waiver.

[00:27:28] Speaker 05:
So it results in the award of a contract.

[00:27:31] Speaker 05:
So it seems to me the only thing left here, if you agree that you didn't answer within the 90 days,

[00:27:38] Speaker 05:
and the contract is deemed awarded, the only thing left to do is to go to step two, and that is for you to issue a check.

[00:27:49] Speaker 02:
Generally, yes, Your Honor, but it's more complicated than just issuing a check.

[00:27:53] Speaker 06:
You're saying that contract isn't awarded on the 91st day as a matter of law, that something must occur, that the contract must be

[00:28:07] Speaker 06:
passage of papers, and then that didn't occur.

[00:28:13] Speaker 02:
Yes, Your Honor.

[00:28:13] Speaker 02:
So it's free.

[00:28:14] Speaker 02:
Yes.

[00:28:15] Speaker 02:
It's a free award.

[00:28:16] Speaker 02:
Yes, Your Honor.

[00:28:17] Speaker 02:
It's two steps.

[00:28:17] Speaker 02:
It's the approval of the proposal, but then there's the next step that if the 90 days passes, the Secretary no longer has discretion to decline the proposal, but the Secretary still has to make that second step.

[00:28:28] Speaker 06:
So you're saying it's still pre-apport award and your failure to raise it on appeal here doesn't matter because it's jurisdiction.

[00:28:38] Speaker 02:
Yes, your honor.

[00:28:43] Speaker 02:
Your honor, for these reasons, we respectfully request that the court remand the case to the CBCA with instructions to dismiss for lack of jurisdiction or in the alternative to affirm the board's decision.

[00:28:52] Speaker 02:
Thank you.

[00:28:53] Speaker 06:
Thank you, Mr. Ashman.

[00:28:55] Speaker 06:
Mr. Nesbitt has two plus minutes, two minus minutes.

[00:29:03] Speaker 03:
Just a few quick points in rebuttal, Your Honor.

[00:29:05] Speaker 03:
We've been speaking about the deemed approval and award process as a two-step process.

[00:29:09] Speaker 03:
At least that's been the subtext here.

[00:29:11] Speaker 03:
It's not a two-step process.

[00:29:13] Speaker 03:
The colloquy that I was having with the judge more earlier gets to this question.

[00:29:17] Speaker 03:
This is not a novel concept that the tribe is urging on the court.

[00:29:20] Speaker 03:
Courts have held this before.

[00:29:22] Speaker 03:
The Seneca case that we cite and discuss in our brief held that the BIA's failure to approve a proposal resulted in it being deemed approved and awarded as set forth by the tribe.

[00:29:34] Speaker 06:
So what's the paper version of the contract look like if it's just deemed approved?

[00:29:43] Speaker 03:
It looks like what the tribe proposed.

[00:29:46] Speaker 03:
And BIA's failure to decline amounts to its agreement to the terms of that proposal.

[00:29:50] Speaker 03:
The Cheyenne River Suitcase from South Dakota that we also cite in our briefs.

[00:29:54] Speaker 03:
Also, the same principle.

[00:29:56] Speaker 03:
Failure to decline results in it being deemed approved and awarded.

[00:30:02] Speaker 03:
The second point.

[00:30:04] Speaker 05:
The CBA ruled on the basis of a Toby 6 motion, correct?

[00:30:16] Speaker 03:
Yes.

[00:30:16] Speaker 05:
So it took jurisdiction.

[00:30:19] Speaker 05:
It didn't rule it.

[00:30:20] Speaker 05:
It did not have jurisdiction.

[00:30:21] Speaker 05:
It ruled it on a code B6.

[00:30:23] Speaker 03:
Correct.

[00:30:28] Speaker 05:
Is that because of an insufficiency of pleading of facts or because there's simply no relief to grant you?

[00:30:36] Speaker 03:
Well, what the board did is interpreted the regulations and held that there was no contract.

[00:30:43] Speaker 03:
No contract existed.

[00:30:45] Speaker 03:
Therefore, one of the prerequisites to bringing the claim was missing.

[00:30:48] Speaker 03:
but that was a misinterpretation of the statute that we've been discussing here today.

[00:30:52] Speaker 03:
I mean, a contract exists because it was deemed approved and awarded by operation of law, and so the board was wrong in that respect.

[00:30:58] Speaker 03:
Now, Mr. Ashman talked a fair amount about the proposal not being a valid proposal.

[00:31:04] Speaker 01:
Worth noting, very briefly, is that the proposal... Well, you want me to look at Seneca, but I don't see how Seneca supports your idea that the deemed approved

[00:31:13] Speaker 01:
proposal suddenly becomes the awarded contract, Seneca involved an already existing contract and a single line item amendment to that contract, which was the proposal.

[00:31:24] Speaker 01:
And in fact, what the court held was, because the contract and all of its provisions are clear, there was already a contract in place.

[00:31:31] Speaker 01:
All the provisions were clear.

[00:31:32] Speaker 01:
This is a single line item in the proposal.

[00:31:34] Speaker 01:
The court finds the nation's letter proposed amendment to the contract became effective when the secretary failed to respond within 90 days.

[00:31:42] Speaker 01:
Isn't that a different situation that we have here?

[00:31:44] Speaker 01:
We don't have a clear A, already existing contract, or B, fully delineated terms.

[00:31:49] Speaker 01:
There are still things that need to be flushed out in the contract writing here.

[00:31:54] Speaker 03:
I don't think that the principle underlying the Seneca case hinges on whether we're talking about an amendment to an already existing Title I contract or a proposal for an entirely new contract.

[00:32:05] Speaker 03:
The statute speaks

[00:32:10] Speaker 03:
between those two situations.

[00:32:12] Speaker 03:
That is, the deemed approval and award process is the same, whether it's an amendment or whether it's a new proposal.

[00:32:17] Speaker 03:
In the Cheyenne River suitcase, for example, the secretary purported to decline the proposal, but it did so insufficiently.

[00:32:25] Speaker 06:
And the court said deemed approved and awarded as requested by the tribe.