[00:00:07] Speaker 05:
The next case for argument is 16-2196, Lummi Tribe versus United States.

[00:01:11] Speaker 05:
Mr. Gillingham, good morning.

[00:01:12] Speaker 05:
May it please the court.

[00:01:14] Speaker 02:
Claimants ask too much of this statute.

[00:01:16] Speaker 02:
And to understand the mismatch between what they ask and what this statute provides, it's important to know what this claim is not.

[00:01:22] Speaker 02:
This is not a claim for work performed and not paid for.

[00:01:25] Speaker 02:
It's not a claim for work performed after which HUD required that the money be repaid.

[00:01:30] Speaker 02:
It's not a claim that from the bank accounts of the tribe they need to repay HUD for excess allocations that were in the line of credit.

[00:01:40] Speaker 02:
that HUD provided them.

[00:01:42] Speaker 06:
Did you argue the case in front of the 10th Circuit?

[00:01:44] Speaker 06:
I did not.

[00:01:46] Speaker 06:
If the government prevails in the 10th Circuit, where they argue that the proper remedy is in the court of claims because what is being sought by this precise type of claim is damages, if the government prevails there, then would the government not be judicially stopped from making the very argument you're making here?

[00:02:07] Speaker 02:
Well, we say there.

[00:02:09] Speaker 02:
Your Honor, is that no damages can be awarded because those funds that were appropriated for specific years have already been allocated and they're gone.

[00:02:16] Speaker 06:
No, what you're saying there is that by definition it's a request for damages because it's a request from prior years.

[00:02:24] Speaker 06:
And you expressly told the Tenth Circuit that the remedy is in the Court of Federal Claims.

[00:02:29] Speaker 02:
There's no remedy in this court, now or in any court, for damages.

[00:02:34] Speaker 04:
I think what the Justice Department was saying there was... Just to clarify, in the 10th Circuit, did you urge that the plaintiffs there need to file their claims in the Court of Federal Claims?

[00:02:51] Speaker 02:
I don't recall that that was our position at all, Your Honor.

[00:02:54] Speaker 02:
What we said is, we don't say here there is no jurisdiction in the District Court.

[00:02:58] Speaker 02:
The concern there was they were asking where a district court might have been empowered to issue an order for specific relief.

[00:03:06] Speaker 02:
As, for example, in the case of the Navajo tribe, the Navajo recognizing that once these funds are not apportioned to a particular tribe, they go into the pool and they go immediately out to other tribes.

[00:03:17] Speaker 02:
What the Navajo did was, in the relevant year, they asked the district court to enjoin HUD

[00:03:22] Speaker 02:
from sending those funds away so that they would be there so that the court could, should it agree with the plaintiffs in that case, it could simply order specific relief and say, now that money that we've set aside is ordered to put back into that fund for the use of this tribe.

[00:03:39] Speaker 06:
But that's not what's going on in the Tenth Circuit.

[00:03:41] Speaker 06:
I mean, I'm surprised that you're telling me you don't know what was argued in the Tenth Circuit because it was so precise and specific.

[00:03:49] Speaker 06:
and giving sight to you pages, but you said, if you're talking about funds that you say should have been awarded in prior years, then by definition, that is damages for prior harm and your remedy is in the court of federal claims.

[00:04:07] Speaker 06:
And that's exactly what they're talking about here, which you're now saying to us

[00:04:12] Speaker 06:
doesn't give rise to a claim for damages in the Court of Federal Claims.

[00:04:15] Speaker 02:
We said there is no claim for damages.

[00:04:17] Speaker 02:
There would be a claim for specific relief were the funds set aside timely by the district court.

[00:04:24] Speaker 02:
I think what the Justice Department's concerned with there was that was what the trial court would have had to do.

[00:04:31] Speaker 02:
That is what the trial court in Fort Peck did do.

[00:04:34] Speaker 02:
It basically said it basically ordered HUD from all available funds to make the plaintiff's

[00:04:40] Speaker 02:
and arguing under the APA's damages exclusion, the Justice Department argued that would be damages.

[00:04:47] Speaker 02:
And therefore, it's not cognizable there under this specific claim.

[00:04:50] Speaker 06:
So the government's position is, as I understand what you're saying, is that the only way the tribes could ever, assuming they are entitled to this fund money, and assuming that the government's failure to provide it to them or more discounting of what was owed was wrong, that the only way they could possibly recover

[00:05:10] Speaker 06:
is if they get to district court, essentially in time to know that the government is going to short them and get a mandamus relief or a specific performance relief within that year.

[00:05:24] Speaker 06:
Is that what you're saying?

[00:05:25] Speaker 02:
Essentially, what is more than a year, there's plenty of notice and plenty back and forth before these determinations are made, so the tribes have plenty of notice.

[00:05:33] Speaker 05:
But what's your position in the 10th Circuit?

[00:05:35] Speaker 05:
If not, it belongs in the court of federal claims, right?

[00:05:39] Speaker 02:
No.

[00:05:40] Speaker 02:
The district court would be precluded from awarding damages, which is how we characterize what the court there did by requiring HUD to go out and search for other funds and make them whole.

[00:05:50] Speaker 02:
That is a request for damages, but as we've explained here, damages is not a suitable remedy.

[00:05:55] Speaker 02:
It was not intended by Congress in the statute.

[00:05:57] Speaker 06:
But you did say on pages 64 through 68 of your brief in the 10th Circuit,

[00:06:02] Speaker 06:
that the remedy is in the Court of Federal Claims.

[00:06:05] Speaker 06:
You didn't tell them that if they went to the Court of Federal Claims, you would then argue that, no, they don't have a remedy.

[00:06:12] Speaker 06:
You expressly said, it's a damages remedy, and they need to go to the Court of Federal Claims for that.

[00:06:19] Speaker 06:
And if they had, you'd be arguing, no, they can't do that.

[00:06:22] Speaker 02:
As a general matter, it is true that this court, as the Court of Federal Claims and the jurisdiction over damages claims, what we're saying

[00:06:29] Speaker 02:
And we argue here is, in fact, they have not presented a damages claim that's cognizable under this statute.

[00:06:36] Speaker 02:
And they've gone at it in one of two ways.

[00:06:38] Speaker 02:
First, they have to show there is a money-mandating requirement.

[00:06:41] Speaker 02:
And there's no money-mandating requirement in the statute.

[00:06:44] Speaker 02:
There's simply a requirement that, to a future fund, a line of credit, a certain amount of money, be allocated.

[00:06:50] Speaker 02:
But that is necessarily controlled, limited, and subject to a host, a bevy, a dizzying array of regulations.

[00:06:57] Speaker 02:
That means the tribes themselves

[00:06:59] Speaker 02:
will never see that money.

[00:07:01] Speaker 02:
They will only process that money and use that money for the benefit of individual Indian residents who are beneficiaries of the fund.

[00:07:08] Speaker 02:
It will never go into their individual bank accounts.

[00:07:11] Speaker 02:
Whereas, if a court of federal claims judge issued a judgment for $2 million, say, that money would be paid by the judgment fund and it would go directly into the general fund of the tribes for which they could spend anything.

[00:07:23] Speaker 06:
No, I don't understand that.

[00:07:25] Speaker 06:
Why is it that the

[00:07:28] Speaker 06:
damages remedy couldn't contain the same strings attached requirements with respect to how the money has to be used.

[00:07:35] Speaker 02:
Because that would require a claims for a judge to attach strings to a judgment.

[00:07:43] Speaker 02:
If the claims court judges could do that, they could do that with any case and say, well, I'm going to give you this money, but you can only spend it on the following things, and I'm going to apply a special master to watch you.

[00:07:52] Speaker 02:
The court can't do that, simply issues a judgment for $2 million or whatever it is, and the Judgment Fund will send that, and it will be available to the tribes for whatever reasons they want to put it.

[00:08:02] Speaker 02:
It will completely leap over all of the purposes, the limits, and the conditions on the funds that NAHASDA requires.

[00:08:09] Speaker 06:
What's your authority for the fact that a court doesn't have any authority to award specifically directed funds?

[00:08:19] Speaker 02:
Because that is equitable relief, and the court has long been held to have no power to award.

[00:08:24] Speaker 06:
It has power to order equitable relief.

[00:08:28] Speaker 06:
as long as it is accompanying a damages award.

[00:08:32] Speaker 02:
In cases like the military pay cases where there was first of all a money-mandating statute and the court for example determines that a military officer was incorrectly passed over for promotion or arbitrarily passed over for promotion contrary to law,

[00:08:46] Speaker 02:
the judge will then issue orders making sure that consistent with that order, the paperwork demonstrating that the officer was passed over is removed.

[00:08:54] Speaker 06:
That's part of the... Well, why isn't that equitable relief that goes along with the damages award?

[00:08:59] Speaker 02:
It has long been held to be in aid of a money judgment.

[00:09:03] Speaker 02:
And here, you open a door that can never be closed.

[00:09:05] Speaker 02:
Here, this is clearly injunctive relief.

[00:09:08] Speaker 02:
It clearly requires the judge to step into the shoes

[00:09:11] Speaker 02:
basically provide APA review and tell HUD what to do.

[00:09:14] Speaker 02:
Tell HUD to put the money here and not there.

[00:09:16] Speaker 02:
Tell the planet to spend it only this way and not that way.

[00:09:19] Speaker 02:
That is unprecedented.

[00:09:20] Speaker 02:
We're aware of no such case.

[00:09:22] Speaker 02:
And this is not a novel idea.

[00:09:23] Speaker 02:
It stems from the fact that these statutes must be money mandated.

[00:09:28] Speaker 02:
To do that, we look at Congress's intent.

[00:09:30] Speaker 06:
And we say that, first of all, Congress's intent was to get this money to the recipients.

[00:09:35] Speaker 06:
And you're not even debating that

[00:09:38] Speaker 06:
that some of what HUD did was to withhold money that it shouldn't have withheld.

[00:09:44] Speaker 02:
Well, we are debating it.

[00:09:46] Speaker 02:
That's the mayor's question, which Judge Brugin will have to determine.

[00:09:49] Speaker 06:
But what we're saying is that... We're proceeding on the assumption right now that HUD withheld money that it shouldn't have withheld, and that there was a specific purpose that Congress wanted that money to be used for, and HUD didn't allow it to happen.

[00:10:03] Speaker 02:
We agree that there was a specific purpose, and that what Congress intended

[00:10:06] Speaker 02:
was not that that money be paid.

[00:10:08] Speaker 02:
It could have said, shall be paid, is entitled to, shall be made available to.

[00:10:13] Speaker 02:
All of the hallmarks of a money-mandating statute did not say that here.

[00:10:16] Speaker 02:
It said, shall allocate.

[00:10:18] Speaker 02:
It did not say, pay damages, or pay the money directly.

[00:10:22] Speaker 04:
So if the Court of Federal Claims is not the right court, then where could the Court of Federal Claims have transferred this action?

[00:10:31] Speaker 04:
To any federal district court?

[00:10:33] Speaker 02:
Well, there is something that could be done by a federal district court still, and that is, when this claim was filed, HUD desisted from capturing future money.

[00:10:45] Speaker 02:
This is all about a line of credit sitting in the treasury, which is available to the tribes.

[00:10:50] Speaker 02:
And when HUD recaptured the money, there was excess money there, is what Judge Berguing called it.

[00:10:56] Speaker 02:
HUD agreed not to recapture any further monies.

[00:11:00] Speaker 02:
And a district court could order it, under its APA jurisdiction, not to further recapture those monies.

[00:11:07] Speaker 02:
And they would not be recaptured.

[00:11:09] Speaker 02:
Now at this point, frankly, the sums are not substantial.

[00:11:12] Speaker 02:
I think one tribe was nothing is what the party stipulated below.

[00:11:15] Speaker 04:
I'm a little confused.

[00:11:16] Speaker 04:
There were past years where HUD withheld money from certain tribes.

[00:11:23] Speaker 04:
And now those tribes would like to get that money back.

[00:11:27] Speaker 04:
Right.

[00:11:27] Speaker 04:
And where can they go to get that money back?

[00:11:31] Speaker 02:
At this point, they cannot.

[00:11:33] Speaker 04:
Why not?

[00:11:34] Speaker 02:
Because.

[00:11:35] Speaker 04:
You say they can't get it here or through the Court of Federal Claims because this statute is not money mandated.

[00:11:42] Speaker 04:
Right.

[00:11:42] Speaker 04:
And you rely on Boeing and you rely on NCMS.

[00:11:46] Speaker 04:
Right.

[00:11:46] Speaker 04:
And you say this is best suited where this is most appropriately an action under the APA.

[00:11:53] Speaker 02:
Right.

[00:11:53] Speaker 02:
There was a time when it was.

[00:11:54] Speaker 02:
It would be no different than as the statute of limitations.

[00:11:57] Speaker 04:
Slow down.

[00:11:59] Speaker 04:
There was a time when it could be filed.

[00:12:03] Speaker 04:
And I'm just trying to understand better, why are you saying it like that?

[00:12:08] Speaker 04:
I guess you're saying the tribes are now foreclosed from being able to get that money back through an APA action.

[00:12:13] Speaker 02:
Right.

[00:12:14] Speaker 02:
They can present the case.

[00:12:15] Speaker 02:
As long as they're in the statute of limitations, they can present the argument that it acted arbitrarily and capriciously, and contrary to statute, when it did.

[00:12:23] Speaker 04:
Before you go into the abstract theory, explain to me just factually

[00:12:27] Speaker 04:
What's defective about their ability to go into district court?

[00:12:31] Speaker 04:
I mean, what blocks, sir, the Court of Federal Claims from transferring this case, this civil action, into district court?

[00:12:40] Speaker 02:
Well, the court could transfer it.

[00:12:42] Speaker 02:
And the question that could be entertained was whether HUD would be entitled to recapture any funds yet uncaptured.

[00:12:49] Speaker 04:
I don't know what that means, recapture funds yet uncaptured.

[00:12:53] Speaker 02:
I don't know what that means.

[00:12:54] Speaker 02:
I calculated that there was an improper overpayment to the tribes, and it began to recapture it after giving the tribes a notice and discussing how they would like to have that adjusted, and in all cases it was by adjusting future grants basically.

[00:13:08] Speaker 02:
And so at some point when this was filed, the government said,

[00:13:12] Speaker 02:
we will stop setting aside those monies.

[00:13:16] Speaker 02:
So we regard this as money you're going to owe, but we're not going to set it off in future years until we hear from the court.

[00:13:22] Speaker 04:
But right now, I'm just really focused on the money that HUD already has grabbed.

[00:13:29] Speaker 04:
So just focus on that.

[00:13:31] Speaker 02:
And what we say is the court could entertain that question, but in the end, it will be able to grant no remedy.

[00:13:36] Speaker 02:
And that's what we're saying in the 10th Circuit.

[00:13:40] Speaker 02:
To the extent money has been set aside, and to my knowledge it has not been.

[00:13:43] Speaker 04:
When you say money has been set aside, can you use active voice?

[00:13:48] Speaker 04:
I don't understand.

[00:13:49] Speaker 04:
Who is setting aside money?

[00:13:51] Speaker 04:
Who is taking money?

[00:13:52] Speaker 04:
Where is the money located?

[00:13:54] Speaker 04:
I can't follow.

[00:13:55] Speaker 02:
In the Fort Peck case, and in the Idaho case as well.

[00:13:58] Speaker 04:
No, just talk about the facts of this case in front of us.

[00:14:01] Speaker 02:
The tribes could have gone in.

[00:14:03] Speaker 02:
These tribes, these three tribes.

[00:14:06] Speaker 02:
could have gone in, could have asked a district court to enjoin HUD before the monies were transferred.

[00:14:13] Speaker 04:
When was the money re-transferred?

[00:14:16] Speaker 02:
Monies were transferred between, let me see, the debts were determined to be between 1988 and 2009, and in various years, partial payments were made.

[00:14:26] Speaker 04:
What do you mean, partial payments were made?

[00:14:28] Speaker 04:
Who made what payments?

[00:14:30] Speaker 02:
No payments were made.

[00:14:32] Speaker 02:
HUD deducted from the line of credit that's sitting at the Treasury for the tribes funds to account for the fact that they had it over allocated in prior years.

[00:14:43] Speaker 02:
They simply deducted from their line of credit.

[00:14:46] Speaker 02:
That's all that happens.

[00:14:48] Speaker 02:
However, 25 U.S.C.

[00:14:49] Speaker 02:
4151 says the Secretary must allocate any funds made available in the fiscal year.

[00:14:56] Speaker 02:
So once one tribe is determined not to be eligible for an FCAS set aside, the first part of the allocation formula, it then goes to other tribes.

[00:15:08] Speaker 06:
In other words, that money is... But what about the fact that the district court specifically found out in the 10th Circuit that HUD treats all of this money as fungible?

[00:15:16] Speaker 06:
In other words, that you keep trying to say it has to be in this particular year,

[00:15:21] Speaker 06:
And if you miss that window for your mandamus relief, you're done.

[00:15:26] Speaker 06:
And yet, HUD admittedly treats all this money as just one big grant pile, which is what Congress wanted it to do.

[00:15:36] Speaker 06:
And so why does it matter?

[00:15:39] Speaker 02:
I feel we disagree with that in the 10th Circuit.

[00:15:40] Speaker 02:
Perhaps what the district court was talking about, with which we would agree with him, is once those monies are allocated to a tribe, once the 98 money, the 99 money, the 2,000 money is allocated,

[00:15:51] Speaker 02:
It sits in a line of credit and fluctuates.

[00:15:54] Speaker 02:
And that money, and there's no requirement that the tribes remit that money.

[00:15:59] Speaker 02:
However, the principle of an appropriation is, it's only available in the year in which Congress appropriates it.

[00:16:05] Speaker 02:
And by law, HUD is required to send that money out to all eligible tribes.

[00:16:10] Speaker 02:
If one tribe's not eligible, it goes to the rest.

[00:16:13] Speaker 02:
So as a matter of congressional intent, that money is no longer available.

[00:16:15] Speaker 04:
You're saying at the end of every fiscal year, all the money is exhausted?

[00:16:19] Speaker 04:
There's no money left over that carries over into the next fiscal year?

[00:16:23] Speaker 02:
There is some lag.

[00:16:24] Speaker 04:
Is that what you're saying?

[00:16:25] Speaker 02:
Yes, basically, yes.

[00:16:27] Speaker 06:
Are you saying that you've never used money from subsequent fiscal years to pay to tribes underpayments, to make up underpayments?

[00:16:35] Speaker 06:
I think there was a specific finding of fact to that effect in the TensorFlow.

[00:16:39] Speaker 06:
That the HUD actually goes back and makes, from later years, allotments, pays back some underpayments.

[00:16:49] Speaker 02:
I'm not to my knowledge that those must be appropriated for the years in question based upon how the formula turns out that year.

[00:16:57] Speaker 02:
In this case, HUD adjusted down against balances that existed.

[00:17:04] Speaker 02:
I'm not aware, and I'll check with my agency counsel who's the expert here, of whether they've ever adjusted up.

[00:17:10] Speaker 05:
Can I just summarize therefore the government's view is

[00:17:15] Speaker 05:
that even though they said in the 10th Circuit this should go to the Court of Claims, they really didn't mean it.

[00:17:20] Speaker 05:
And therefore, it doesn't belong in the district court, but it also doesn't belong in the Court of Claims either, right?

[00:17:27] Speaker 02:
The Court of Claims can entertain damages cases for sure.

[00:17:30] Speaker 02:
But in this case, under this statute, Congress did not intend this to be money mandating.

[00:17:35] Speaker 02:
And therefore, the court could not award damages in this case.

[00:17:39] Speaker 05:
So the answer to my question is yes.

[00:17:41] Speaker 05:
That's the government's view.

[00:17:42] Speaker 06:
That there's nowhere to go.

[00:17:44] Speaker 06:
that can provide any relief.

[00:17:47] Speaker 05:
In the absence of them coming in for a preliminary injunction to district court in the first year while the appropriations are still available.

[00:17:55] Speaker 02:
In more than a year, it takes a while for these things to be, notices are given and it notifies.

[00:18:00] Speaker 02:
But yes, beyond that, yes.

[00:18:01] Speaker 02:
Then the district court can provide specific relief as against those funds.

[00:18:05] Speaker 02:
It can report that money, which is set aside, must be paid over.

[00:18:09] Speaker 02:
You can call that damages if you want.

[00:18:10] Speaker 02:
But that can be done.

[00:18:11] Speaker 06:
But only in that window.

[00:18:13] Speaker 06:
So you're saying we should send this to the district court because that's the one that has jurisdiction, but then the district court won't have any authority to give a remedy.

[00:18:20] Speaker 02:
But there is no statute of limitations that is run.

[00:18:33] Speaker 04:
Yeah, what do you mean by statute of limitations?

[00:18:35] Speaker 02:
I'm simply saying that as a general matter, we're making a distinction between what this court does versus what a district court does.

[00:18:41] Speaker 02:
Well, the district court can entertain these cases, could issue injunctions, could order remedies in the form of specific relief.

[00:18:49] Speaker 02:
Just because that has that power does not mean it has that power on this date analogous to a statute of limitations problem.

[00:18:56] Speaker 04:
So it's an analogy to statute of limitations.

[00:18:59] Speaker 02:
Only analogous.

[00:18:59] Speaker 02:
Here the problem is, because the time is run,

[00:19:02] Speaker 02:
And because in the time available, the tribes have not set aside this money as a fine at which the district court could aim specific relief.

[00:19:11] Speaker 05:
This seems pretty global, right?

[00:19:14] Speaker 05:
I mean, I don't know.

[00:19:15] Speaker 05:
We had the Bowen case, and we also had the more recent case on our court.

[00:19:18] Speaker 05:
I mean, there are thousands and thousands of statutory grant programs that are divvied up on an annual basis.

[00:19:26] Speaker 05:
Are there any limiting principles?

[00:19:28] Speaker 05:
Is your view that if there's a statutory grant allotment of money, then therefore it is not in the nature of the Court of Claims money-mandating statute and you can only go to the District Court?

[00:19:40] Speaker 05:
And since we're dealing with annual appropriations, the only way you can get relief in the District Court is if you get in there on a preliminary injunction or mandamus basis before the money is otherwise expended for that fiscal year.

[00:19:52] Speaker 02:
The deluding principle is not that if there is a grant, the Court of Claims has no jurisdiction.

[00:19:57] Speaker 02:
We have to examine the particular grant.

[00:19:58] Speaker 02:
In cases like Greenlee County, Chula Vista, Conomoto, those cases found that money was intended to be paid because those were clearly compensation.

[00:20:08] Speaker 02:
They used words like shall pay, or are entitled to, or it's compensation for.

[00:20:13] Speaker 02:
And so you examine the statutes.

[00:20:15] Speaker 05:
So here your assessment is the money was not intended to be paid?

[00:20:19] Speaker 02:
to be paid, to be deposited in the general account, which is where judgment fund damages will go, of the tribe.

[00:20:25] Speaker 02:
It must remain only in the account that is subject to all the controls over those funds that ensure that they are expended only for the beneficiary.

[00:20:34] Speaker 06:
But you didn't brief anything in your briefs about this question of the scope of the Court of Federal Claims authority with respect to a distinction between general fund damages or

[00:20:49] Speaker 06:
or payment of monies that could be paid consistent with the requirements of the statute.

[00:20:55] Speaker 02:
What we've said is that the funds that are available under this statute, through the Treasury line of credit, are basically funds with strings attached, subject to limitations.

[00:21:07] Speaker 02:
What we refer to as the damages claim is no strings money.

[00:21:11] Speaker 02:
A judgment fund simply paid for the account of $2 million.

[00:21:14] Speaker 06:
You made that factual distinction, but what I'm saying is you don't anywhere give us any legal authority for the proposition that there is no ability to allow the payments to be made consistent with the statutory scheme, even if they're characterized as damages.

[00:21:30] Speaker 02:
because that would really be a matter of injunction.

[00:21:33] Speaker 02:
It would be the court attaching strings to a judgment.

[00:21:37] Speaker 02:
And that would require enforcement by the court.

[00:21:39] Speaker 02:
It would require the appointment of some sort of a special master or someone to observe whether those strings were attached.

[00:21:44] Speaker 02:
That would open up a door that cannot be closed and would be dangerous.

[00:21:47] Speaker 06:
When you award the money on a yearly basis, do you have a special master that supervises the tribes to make sure that they go to the correct places?

[00:21:55] Speaker 06:
HUD does that.

[00:21:56] Speaker 02:
Well, right.

[00:21:57] Speaker 06:
HUD can do it, right?

[00:21:59] Speaker 06:
Why can't HUD do that the same way it does for every other award of money?

[00:22:04] Speaker 02:
Because the money would be written into, it would be free and clear money.

[00:22:08] Speaker 02:
A judgment is simply money in compensation for a past injury.

[00:22:10] Speaker 02:
It would be given to the plaintiff.

[00:22:12] Speaker 02:
The plaintiff could do everything anything you want with it.

[00:22:14] Speaker 02:
So you're asking the court to order to basically issue an injunction and say, OK, we're going to give you this money, but you must make sure it's deposited over in this account and instructing HUD to work with you to ensure it goes in an account where I can keep an eye on it.

[00:22:28] Speaker 04:
Is it the government's view in trying to figure out where cases should be filed that there are money damages cases and money damages cases are always filed in the court of federal claims and then there's specific equitable relief type cases where you're trying to get certain kinds of funds but they're characterized for whatever reason as specific equitable relief and then therefore those are APA actions.

[00:22:58] Speaker 04:
So is it always the case in the government's view that you can only file in one court and not the other?

[00:23:05] Speaker 04:
That you either have to figure out whether it's a money damages case or an equitable relief case.

[00:23:11] Speaker 04:
And if it's one, then it's in the federal claims.

[00:23:14] Speaker 04:
If it's the other, then it must be an APA action in district court.

[00:23:17] Speaker 02:
And I think this court has addressed that.

[00:23:19] Speaker 02:
Well, is the answer yes?

[00:23:23] Speaker 02:
You must figure out whether the Court of Federal Claims has jurisdiction.

[00:23:26] Speaker 02:
If it is money mandated, then you would get money as... Let me ask it a different way.

[00:23:32] Speaker 04:
Is there ever a situation where it would be permissible to file a claim in either court, federal claims or district court, because maybe on one hand it's considered equitable relief, on the other hand it could be considered a naked money judgment, and so therefore

[00:23:53] Speaker 04:
under certain circumstances, there is overlap in terms of jurisdiction between the federal claims and the district courts.

[00:24:02] Speaker 02:
Yes, I suppose.

[00:24:02] Speaker 02:
I mean, the plaintiff owns his complaint.

[00:24:04] Speaker 02:
And if the plaintiff needs equitable relief, it would go to district court.

[00:24:07] Speaker 02:
There's no question about it.

[00:24:08] Speaker 05:
Wait a minute.

[00:24:08] Speaker 05:
But I thought, doesn't the APA provide for relief because it's not available in any other court?

[00:24:14] Speaker 02:
It's available in the Court of... This is a question of bowing, which I don't want to oversell here, or begin to characterize what's damages and what's not.

[00:24:20] Speaker 02:
If there's a money-mandating statute and the plaintiff wants money, it can come to the Court of Federal Claims.

[00:24:25] Speaker 02:
If it wants equitable relief in order, for example, in future years to tell HUD to do certain things, it goes to the court and get that.

[00:24:31] Speaker 02:
That may have a money consequence, but that certainly is not a money-mandating claim resulting in the direct payment of money.

[00:24:37] Speaker 02:
The court has made that distinction clear over the years.

[00:24:40] Speaker 02:
So in theory, a plaintiff could need equitable relief.

[00:24:42] Speaker 02:
That might be more important to it.

[00:24:44] Speaker 02:
And it might go and seek that in the court.

[00:24:46] Speaker 02:
If it asks for what it characterizes equitable relief for money, then this court gets into the business of looking at the true nature of the complaint and seeing what is this really about, as this court did in NCMS, and it does all the time.

[00:24:59] Speaker 02:
And if it determines what the plaintiff really wants, it's simply money, basically for past injuries,

[00:25:05] Speaker 02:
and the statutes of money mandating, then the Court of Federal Claims has jurisdiction.

[00:25:08] Speaker 04:
So what would be the fact pattern where the government believes, okay, a certain plaintiff could file this case, well, given its true nature in either the federal claims or the district court?

[00:25:22] Speaker 04:
What would that fact pattern be?

[00:25:24] Speaker 02:
The Fort Peck claim that HUD arbitrarily and capriciously

[00:25:30] Speaker 02:
applied, either applied a void stat regulation, 318, which concerns allocation, or valid and misapplied it.

[00:25:38] Speaker 02:
We didn't say that the jurisdiction was proper in the district court.

[00:25:42] Speaker 02:
And that question could have been ironed out.

[00:25:44] Speaker 02:
And once it was, HUD, at least in the 10th Circuit, would have been bound by that finding, at least as to that claim.

[00:25:51] Speaker 04:
That claim could also have been filed in the Court of Federal Claims?

[00:25:55] Speaker 04:
That's my question.

[00:25:57] Speaker 02:
No, because I'm talking... So, no, again, because that would be... Right, so my... I don't know.

[00:26:02] Speaker 05:
I'm trying to... I thought the answer was that you can't file the same claim.

[00:26:06] Speaker 05:
I thought... I understood your answer to be that if you've got a different cause of action, one cause for prospective relief and the other for damages, one case involving parties, parts of it can go in the court of claims and part of it can go in the district court, but it isn't the cases that the precise claim what you're seeking

[00:26:26] Speaker 05:
can go alternatively to a district court into the court of federal claims, right?

[00:26:30] Speaker 02:
I think that's a metaphysical question that was left open by the Supreme Court in Bowen.

[00:26:34] Speaker 02:
However, no case can be here if the money-mandating statute is not cited.

[00:26:40] Speaker 02:
If the money-mandating statute is cited, money can be had here.

[00:26:43] Speaker 02:
There would be an adequate remedy, and therefore the APA would automatically be divested.

[00:26:48] Speaker 02:
of jurisdiction.

[00:26:48] Speaker 05:
Unless you were seeking some additional relief, like injunctive relief.

[00:26:53] Speaker 05:
We are way over time, but I think we need to talk a little about the illegal ex-action claim, because it's entirely unclear to me.

[00:27:00] Speaker 05:
I mean, you won that below, and now you're raising it here?

[00:27:07] Speaker 05:
I mean, firstly, is it

[00:27:10] Speaker 05:
Is that question on appeal before us?

[00:27:13] Speaker 05:
And if so, let's talk about the merits of that claim.

[00:27:16] Speaker 02:
Yeah, that's an interesting question.

[00:27:17] Speaker 02:
And the question, when does Court Command Serserari have cited a case called Yamaha, a Supreme Court case, and basically said any question cited in Judge Broody's September 30, 2015 order could be reviewed?

[00:27:30] Speaker 02:
Perhaps we took the bait, or in opposing our motion for petition for Serserari, the plaintiff raised this illegal exaction.

[00:27:38] Speaker 02:
question, and we addressed it up front, and perhaps we shouldn't later than the last couple of weeks.

[00:27:44] Speaker 05:
Well, you're not talking about a petition for certiorari.

[00:27:46] Speaker 02:
You're talking about a petition for analogatory appeal.

[00:27:49] Speaker 02:
And so it's unsettled in this district, in this court.

[00:27:52] Speaker 02:
This court cited the Yamaha case, and that basically says that when we were sort of going

[00:28:00] Speaker 02:
And in a final appeal situation, a party that does not file a notice of appeal cannot reduce the rights of its adversary, basically.

[00:28:08] Speaker 02:
And that's a lot different.

[00:28:10] Speaker 05:
But assuming it's properly before us, on the merits of the illegal exaction claim.

[00:28:15] Speaker 05:
Now, I understand this is a little different because the claim is for a violation of due process.

[00:28:20] Speaker 05:
But can you talk to us a little about the claim for illegal exaction?

[00:28:24] Speaker 05:
whether that claim exists, what the relationship is between whether or not the statute is money-mandating and whether there's a claim for a legal exception.

[00:28:33] Speaker 02:
So assuming that the failure to file a notice of appeal does not preclude that question, the answers are this.

[00:28:37] Speaker 02:
First of all, Judge Bruging said basically, this is superfluous at this point.

[00:28:41] Speaker 02:
If the money is not there, there's nothing to be exacted.

[00:28:43] Speaker 02:
He also did not cite cases I believe he was talking about.

[00:28:47] Speaker 02:
He would have been correct to talk about two general principles.

[00:28:50] Speaker 02:
First of all, in order to have a legal exaction, someone's money has to be exacted.

[00:28:54] Speaker 02:
So cases like Argentina, where the plaintiff was required to pay over its own money to a third party to house aliens seeking asylum.

[00:29:05] Speaker 02:
Or in the case of North Carolina, North California power, where the Bureau of Reclamation required payments to be made that it had no authority to make.

[00:29:20] Speaker 02:
other cases.

[00:29:21] Speaker 06:
Right, so he's destroying the distinction between payments that were withheld, as in this case, versus payments that were clawed back?

[00:29:32] Speaker 02:
Payments, basically we say the plaintiff had, the tribes had to have the money, have possession of the money, have legal rights to the money, and then the government forced them to pay it over to the government.

[00:29:42] Speaker 02:
It did not.

[00:29:43] Speaker 02:
Of course, the money that was sitting in their line of credit, when not properly allocated, simply went off to other tribes.

[00:29:49] Speaker 02:
No, the government doesn't have

[00:29:50] Speaker 02:
plaintiffs with the tribe's money in its pocket.

[00:29:54] Speaker 02:
Similar case.

[00:29:55] Speaker 06:
But it's not so much that the government doesn't have the tribe's money in its pocket, because that gets into the whole question about whether money is money and whether it's been treated as fundable by HUD.

[00:30:05] Speaker 06:
I thought that what the judge said was that the distinction is between, for instance, where you make a taxpayer pay money and the taxpayer is trying to get it back.

[00:30:18] Speaker 06:
that that would be a classic exaction versus a situation in which the government just didn't make a payment that it should have made.

[00:30:27] Speaker 02:
Right.

[00:30:28] Speaker 02:
So in the tax cases, those are the classic cases.

[00:30:31] Speaker 06:
But isn't that the distinction the judge drew?

[00:30:35] Speaker 02:
Judge Brugink

[00:30:36] Speaker 02:
was basically saying this was never their money.

[00:30:38] Speaker 02:
They would have to establish it was their money in the first instance, which takes us right back to the question of whether... No, that's not... He didn't say they didn't establish that they didn't have the right to the money.

[00:30:47] Speaker 06:
What they didn't establish was that they had the money in their pocket and were forced to hand it back.

[00:30:53] Speaker 02:
Well, the words he used, I think, were substantively entitled to it.

[00:30:57] Speaker 02:
In the tax cases, there's no question the money in the tax account is the taxpayers.

[00:31:01] Speaker 02:
taxpayers earned that money and simply been lodged on the taxpayers' behalf with the IRS.

[00:31:06] Speaker 02:
When the IRS refuses to return it, a repellent-style action under a theory of legal exactions is proper.

[00:31:12] Speaker 02:
Here, we say the money was never owned by the tribe, never paid over to the tribe.

[00:31:16] Speaker 04:
At best, there might have come a time when... Where did Judge Brugnick say that?

[00:31:21] Speaker 04:
I mean, you're saying that the court of federal claims below said that this was never money that belonged to the tribe, and so therefore,

[00:31:31] Speaker 04:
there can't be an illegal exaction.

[00:31:32] Speaker 04:
My understanding of what the judge below said was that it wasn't the loss of a procedural right that caused any illegal exaction.

[00:31:43] Speaker 04:
It was the substantive provisions of NAZDA that caused, or misapplication of the substantive provisions that caused illegal exaction.

[00:31:54] Speaker 04:
So that's what I saw his reasoning was.

[00:31:57] Speaker 04:
I didn't see any reasoning that suggested that

[00:32:00] Speaker 04:
this money doesn't ever belong to the tribes.

[00:32:05] Speaker 02:
Keith, the words he used on page 14 and 17 of the Joint Appendix in Lummi 4 was that, first of all, the tribe would have to show that it's substantively entitled to the money.

[00:32:18] Speaker 02:
And in Lummi, on JA5, he said the government only has the plaintiff's money in its pocket if 318, the allocation statute, was improperly applied.

[00:32:30] Speaker 02:
That gets to the second.

[00:32:31] Speaker 02:
So you have to have money to begin with, as yours has been taken, is the first element.

[00:32:36] Speaker 02:
The second element is whether the government has misapplied or misinterpreted the statute.

[00:32:41] Speaker 02:
And as a result of that misinterpretation or misapplication, the government then takes that money.

[00:32:54] Speaker 02:
then becomes the court's job to examine that particular law and see whether that particular law necessarily implies a money judgment.

[00:33:02] Speaker 02:
So the tribes here refer to two sorts of statutes.

[00:33:04] Speaker 02:
One is 4165.

[00:33:06] Speaker 02:
That's the one that talks about the hearing that we don't agree was due in this case.

[00:33:09] Speaker 02:
But nonetheless, we assume that it is due.

[00:33:12] Speaker 02:
There's nothing in 4165 that can be read as Congress's intent that if a hearing is in hell concerning these allocations in a line of credit,

[00:33:24] Speaker 02:
that necessarily then any money they would have claimed during that hearing must be returned to them, not only to the funds that are subject to all these controls, but must be put in their personal bank accounts.

[00:33:37] Speaker 02:
There's nothing in 4165 that suggests that.

[00:33:41] Speaker 02:
That is, it is not necessarily applied.

[00:33:43] Speaker 05:
So there's no relief for their failure to hold the hearing, even though it's statutorily required?

[00:33:48] Speaker 02:
There's no money remedy implied in the statute.

[00:33:50] Speaker 02:
There's no basis for an illegal exemption.

[00:33:51] Speaker 04:
What's the remedy then?

[00:33:54] Speaker 04:
Because the statute says the secretary is going to hold these hearings, or opportunity for a hearing.

[00:34:01] Speaker 04:
And then after that, if it concludes that there was some misallocation, then it shall do the withholding.

[00:34:10] Speaker 04:
So there is a condition to the act of the secretary withholding the money.

[00:34:16] Speaker 04:
And that condition is having an opportunity for the tribe to have a hearing.

[00:34:22] Speaker 04:
What's the remedy when the hearing doesn't happen?

[00:34:26] Speaker 02:
Again, you can go to a district court.

[00:34:28] Speaker 02:
Well, the proper rule here, the regulation, I believe it's 336, provides that the tribes can seek reconsideration by the assistant secretary.

[00:34:39] Speaker 02:
If the assistant secretary disagrees, that is final agency action and could be taken to the district court.

[00:34:48] Speaker 02:
Now, plaintiff states 4165 is their remedy.

[00:34:51] Speaker 02:
But the bottom line is this court would have to find in 4165 a necessary implication.

[00:34:56] Speaker 02:
The failure to hold a hearing requires the payment of $2 million, whatever the amount is they're seeking, let's say approximately $2 million, in cash into their bank accounts.

[00:35:05] Speaker 02:
There's nothing in the law that can possibly be suggested to say that.

[00:35:09] Speaker 04:
Does HUD have a normal practice now or a common practice of just never giving an opportunity for a hearing?

[00:35:16] Speaker 02:
No, not at all.

[00:35:17] Speaker 04:
So are you saying this was a rare, rare exception?

[00:35:20] Speaker 04:
that the Lummi Tribe here just only got a letter notifying them of this withholding, but without giving them an opportunity to be heard?

[00:35:30] Speaker 04:
Well, as Judge Weiss found... Is this a rare, rare exception to the very, very normal conventional practice of HUD to offer an opportunity for a hearing before they do the withholding?

[00:35:42] Speaker 02:
If there was a mishearing, I've not surveyed this, I would assume it would be HUD believed that it did the proper thing in this case.

[00:35:47] Speaker 02:
There was lots of back and forth as Judge

[00:35:50] Speaker 02:
as Judge Weiss found, went out with me too.

[00:35:54] Speaker 02:
And so when they first put it as just a failure to follow procedures, he basically said, look, you've agreed with all these things.

[00:36:00] Speaker 02:
What would be the purpose of having a hearing?

[00:36:02] Speaker 02:
He would also have to find that they requested a hearing under the regulation they claim here.

[00:36:08] Speaker 02:
And he found they had not requested a hearing.

[00:36:11] Speaker 02:
But it's hard for me to believe, honestly, that if they had requested a hearing,

[00:36:15] Speaker 02:
that HUD would simply say, we're not going to provide you a hearing.

[00:36:18] Speaker 02:
That is not at all in the tenor of all the correspondence that's gone back and forth, which shows, among other things, that if HUD received any sort of an explanation at all for the monies at issue, it simply allowed them to be counted in the FCATS formula.

[00:36:32] Speaker 02:
So I can't accept the premise that HUD has denied rights here.

[00:36:36] Speaker 02:
Let's just assume that there was a failure to apply by negligence or otherwise 4165.

[00:36:41] Speaker 02:
And I would have to assume, because I assume government officials act according to law and properly, that that statute would then have to provide as a necessary implication.

[00:36:53] Speaker 02:
The court would have to draw an indeluctable conclusion

[00:36:55] Speaker 02:
that Congress intended that the remedy to be, if you don't get this hearing, you get $2 million in cash-free money.

[00:37:02] Speaker 02:
That's our concern.

[00:37:02] Speaker 04:
Can you give us the sites to where the evidence is that it's clear that there was something that was going on in the back and forth between HUD and the tribes that shows evidence of something that's akin to a sufficient notice and opportunity to be heard?

[00:37:20] Speaker 02:
Judge Weiss found that in his 21

[00:37:26] Speaker 02:
decision.

[00:37:30] Speaker 02:
In the Louis 1 decision at page 599, this is 99, Fed claim 584,

[00:37:46] Speaker 02:
He said, it's difficult to understand how a plaintiff reasonably can assert that HUD failed to provide procedural protections when, in fact, they were given full notice of the government claims along with a meaningful opportunity to respond.

[00:37:56] Speaker 04:
Could you give me the site again?

[00:37:58] Speaker 04:
599, Fed claim.

[00:37:59] Speaker 02:
Yeah, so Lumi 1 is 99 Fed claims.

[00:38:03] Speaker 02:
584 is the opening page.

[00:38:05] Speaker 02:
599.

[00:38:06] Speaker 02:
That one's where I found that.

[00:38:08] Speaker 02:
Now, in Lumi 2,

[00:38:11] Speaker 02:
To be frank, Judge Weiss, after the complaint was refashioned to include the Civil Legal Exaction Claim, 141.65, he said that he held that a 41.65 hearing should have been held.

[00:38:28] Speaker 02:
However, he did not grant summary judgment on that.

[00:38:30] Speaker 06:
Right.

[00:38:30] Speaker 06:
I mean, he made that specific finding, that there was no hearing and that there should have been a hearing.

[00:38:35] Speaker 02:
Right.

[00:38:35] Speaker 02:
That's right.

[00:38:36] Speaker 02:
And we disagree with that.

[00:38:37] Speaker 02:
And there was never any conclusion as to what remedy would be required because the tribe didn't file motions for summary judgment indicating that as a result of that failure, they were therefore entitled to the money sought.

[00:38:50] Speaker 02:
Judge Brugging sort of obviated that.

[00:38:52] Speaker 02:
Well, it was presented to Judge Brugging when the tribe said, all right, Judge Weiss said that we're entitled to this hearing.

[00:38:58] Speaker 02:
We now say that as a matter of law per se, the failure to give that hearing, Judge Weiss said, which required automatically means we get the money.

[00:39:05] Speaker 02:
And Judge Bruggen said, that's not right.

[00:39:08] Speaker 02:
And in fact, an illegal transaction claim is not going to matter here.

[00:39:11] Speaker 02:
What's going to matter is whether you have a right to the substantive money your claim is having.

[00:39:14] Speaker 06:
Well, what Judge Bruggen actually said was that all of that still depends on whether the statute's money-mandating, that there may be some remedy for the failure to give a hearing, but only if the statute happens to be money-mandating.

[00:39:28] Speaker 02:
Right.

[00:39:28] Speaker 02:
He would have to find, I wouldn't use the term money-mandating, but I suppose it's a fair shorthand.

[00:39:33] Speaker 02:
What he would have had to have been saying was, by necessary implication, that statute requires the payment of money.

[00:39:42] Speaker 05:
OK.

[00:39:43] Speaker 05:
We've exceeded any bounds.

[00:39:45] Speaker 05:
So please don't listen in terms of time.

[00:39:47] Speaker 05:
But we'll restore a few minutes for rebuttal.

[00:39:49] Speaker 05:
And let's hear from the other side.

[00:39:51] Speaker 05:
I appreciate it, Your Honor.

[00:39:59] Speaker 00:
May it please the Court.

[00:40:00] Speaker 00:
Good morning.

[00:40:00] Speaker 00:
My name's John Fredericks.

[00:40:01] Speaker 00:
I represent the respondents.

[00:40:04] Speaker 05:
Are you involved in any of the other cases in the other circuits, the 10th or the 9th?

[00:40:09] Speaker 00:
I am, Your Honor.

[00:40:11] Speaker 00:
I was involved in the very first case, the Fort Peck case that was brought in the District Court.

[00:40:16] Speaker 00:
And I also represent 10 plaintiffs in the case that is currently pending before the 10th Circuit.

[00:40:24] Speaker 05:
And it's been pending for quite a while, right, before the panel?

[00:40:26] Speaker 00:
Yes.

[00:40:27] Speaker 00:
We brought the Fort Peck case in 2005, I believe.

[00:40:33] Speaker 00:
And we brought this case in 2008 after the NAHASTA was amended.

[00:40:42] Speaker 00:
And we brought this case under the amended version of the statute that allowed us 45 days to file a claim challenging the HUD's actions.

[00:40:55] Speaker 00:
So the act has a 45-day limit to filing a claim?

[00:41:00] Speaker 00:
In the amendment, yes.

[00:41:05] Speaker 00:
It basically changed the allocation formula in response to the district court's ruling in Fort Peck that HUD acted in violation of the original statute.

[00:41:16] Speaker 00:
So Congress amended the statute, but it also said that tribes that were aggrieved by prior misdeeds could bring an action.

[00:41:27] Speaker 00:
within 45 days of the amendment, and that's what we did here.

[00:41:32] Speaker 06:
So the government is saying that despite that 45-day window, there is no place that the tribes can go to get relief for prior actions?

[00:41:47] Speaker 00:
That's what the government's saying, Your Honor, but with all due respect to the government, I think they're clearly wrong.

[00:41:54] Speaker 00:
This case could clearly be brought in the

[00:41:57] Speaker 00:
Court of Claims, one, because the HASTA is a money-mandating statute, and two, because we asserted a claim for an illegal exaction, which is an independent basis for claims court jurisdiction.

[00:42:13] Speaker 05:
Well, before we get to the illegal exaction piece of this, we've got precedent in our court, namely the National Center for Manufacturing Sciences.

[00:42:21] Speaker 05:
We've also got the CATS case.

[00:42:24] Speaker 05:
Why are they distinguishable?

[00:42:26] Speaker 05:
from this case, because it seems to me the statute is similar in terms of what it provides and how it provides it.

[00:42:35] Speaker 05:
And so how would you distinguish the two?

[00:42:38] Speaker 00:
Well, in national manufacturing, the issue was not whether the court of claims had jurisdiction.

[00:42:44] Speaker 00:
The issue was whether the district court had jurisdiction under the APA.

[00:42:51] Speaker 00:
nowhere in the court.

[00:42:52] Speaker 05:
But it also reversed the district court's transfer of that case to the Court of Federal Claims.

[00:42:58] Speaker 05:
Right.

[00:42:58] Speaker 05:
And it said the question is whether this case properly belonged before the district court or before the Court of Claims.

[00:43:07] Speaker 00:
It did.

[00:43:08] Speaker 00:
And it decided that the district court was the proper forum because the complaint that the plaintiff filed did not request a bare naked money judgment.

[00:43:21] Speaker 00:
It also requested injunctive relief, prospectively, going forward.

[00:43:27] Speaker 00:
In our case, we're not asking for any type of prospective injunctive relief.

[00:43:31] Speaker 00:
We're just asking the court to issue a judgment for the money that were owed under the statute, and also to issue a judgment for the funds that were unlawfully retained or exacted.

[00:43:45] Speaker 04:
Now, in that national manufacturing case, as well as the Boeing majority opinion,

[00:43:50] Speaker 04:
They seem to characterize federal grant programs that the granting of these monies to subsidize future expenditures as not really being, if you're denied those grant monies, it's not something that is compensable as some substitute relief for some injury or loss

[00:44:18] Speaker 04:
or labor, but it's something that's more considered specific equitable relief when you're trying to get that money that you feel like you were unfairly denied in these federal grant programs.

[00:44:33] Speaker 04:
And so I guess the problem or one concern I have is how do we regard that as a money-mandating statute here when we've already said and described federal grant programs as or

[00:44:49] Speaker 04:
loss under a federal grant program is something when you're looking for relief, it's not necessarily money damages relief, but it's some kind of specific equitable relief.

[00:45:00] Speaker 00:
Well, I think that it all depends on how the plaintiff fashions the complaint and what the relief that the plaintiff asks for.

[00:45:10] Speaker 00:
Bowen simply recognized that there are certain cases where under the APA, a plaintiff could ask for

[00:45:19] Speaker 00:
monetary relief, but it didn't hold that that request for relief would somehow divest the claims court of jurisdiction in a case where it would otherwise have jurisdiction to award damages.

[00:45:35] Speaker 00:
What Bowen said was, and in fact what national manufacturers said is that they weren't convinced that

[00:45:46] Speaker 00:
mere money damages would give the plaintiff all the relief to which they were entitled and therefore the district court had jurisdiction under the APA.

[00:45:56] Speaker 06:
What is your response though to the argument from your friend on the other side that the real problem here is if we treat these prior years' misallocations as damages

[00:46:12] Speaker 06:
that instead of complying with the statutory provision that says that the grant amounts for the tribe go directly to the recipient, that in this case, the Court of Federal Claims would be forced to simply award monies from the general fund to the tribes.

[00:46:29] Speaker 06:
And there would be no ability to control how the tribes used the money.

[00:46:35] Speaker 00:
Well, I think we've got three responses to that, Your Honor.

[00:46:41] Speaker 00:
First, I would say in response that that issue is not relevant for jurisdictional purposes, that the issue is whether or not NAHASDA mandates the payment of money.

[00:46:51] Speaker 00:
We think clearly it does.

[00:46:55] Speaker 06:
Well, I mean, I know we're fighting and there was discussion about metaphysical arguments, whatever that means, but we're talking about jurisdiction.

[00:47:05] Speaker 06:
But I can't help

[00:47:07] Speaker 06:
but have a little bit of concern about saying, is this just a shell game?

[00:47:11] Speaker 06:
So the question is, what court should this go to?

[00:47:16] Speaker 06:
The government's response is, well, we can argue over which court it goes to, but it doesn't matter because they get nothing in either court, is what they're saying.

[00:47:24] Speaker 00:
Yes.

[00:47:26] Speaker 00:
And I hope that's not the law.

[00:47:30] Speaker 00:
I don't think it's the law.

[00:47:31] Speaker 00:
I would say that it's not the law.

[00:47:34] Speaker 06:
Well, what is the answer to your question?

[00:47:36] Speaker 06:
The big concern the government seems to have is whether or not, if we treat it as damages, that the ability of HUD to actually conform to the requirements of the statute that the money goes directly to the recipients is completely wiped out.

[00:47:53] Speaker 00:
Well, first of all, all the plaintiffs or the respondents in this case operate under an enabling ordinance.

[00:48:04] Speaker 00:
that restricts how they can spend the money.

[00:48:07] Speaker 00:
They're required to spend their money on affordable housing for low-income individuals.

[00:48:15] Speaker 00:
Secondly, if HUD has this concern, they certainly could have asked the court, or they can ask the court, and we would stipulate that any judgment would contain what I would

[00:48:33] Speaker 00:
consider ancillary or collateral relief that requires the money to be spent on affordable housing activities in accordance with NAHASDA.

[00:48:45] Speaker 06:
I think that's clearly... So as I understand it, you have two responses.

[00:48:48] Speaker 06:
One is that it really doesn't matter because it's not a question of the tribes getting money and being able to put in a casino.

[00:48:55] Speaker 06:
It's a question of this particular tribal organization that has to spend all of its money on affordable housing getting the judgment, right?

[00:49:03] Speaker 06:
And that secondly, you're saying that regardless of any limits on the court's authority to order strings attached, that as long as parties can agree to strings attached, then the court could implement that.

[00:49:20] Speaker 00:
Yes.

[00:49:21] Speaker 00:
And in fact, even if we didn't agree, I think that the court has the authority under either the Tucker Act or under

[00:49:32] Speaker 00:
the statute 28 USC section 1503 to require.

[00:49:39] Speaker 04:
The concern I have is that in both Bowen and in national manufacturing, one of the reasons why both those cases concluded that what was being sought was specific equitable relief was they were looking at the nature of the funds and the relationship between the federal government

[00:50:01] Speaker 04:
and the plaintiff in those cases, was an ongoing relationship where the federal government had a right to continue monitoring how the block grant money was being used by the plaintiffs there.

[00:50:15] Speaker 04:
And that's similar to what's happening here with these HUD funds in the sense that HUD, under the statute, has the right to continue monitoring everything

[00:50:28] Speaker 04:
And the tribes are restricted in how they're supposed to use the money.

[00:50:31] Speaker 04:
And HUD has the right, if it sees that the money is not being used for the restricted purposes, to then withdraw money or even terminate any future grants.

[00:50:45] Speaker 04:
And so in the end, because there's an ongoing relationship between the tribes and the federal government,

[00:50:53] Speaker 04:
which is akin to the ongoing relationships between the federal government and the plaintiffs and those other cases, that was in those cases a large part of the basis for why they found that what's going on here with these grants is specific equitable relief.

[00:51:11] Speaker 04:
So that's my concern with your case, that it seems to fall into that same kind of ongoing relationship bucket that in the other cases

[00:51:23] Speaker 04:
drove a conclusion that it was equitable relief that those plaintiffs were looking for.

[00:51:27] Speaker 04:
So why aren't we required to look at your situation as also looking for equitable relief, even though you want to characterize it as money damages?

[00:51:38] Speaker 00:
Well, again, I would say in response that the plaintiff is the master of his complaint.

[00:51:46] Speaker 00:
And the Tucker Act is very specific as to what claims are cognizable in the Court of Claims.

[00:51:56] Speaker 00:
I think the line to draw between Bowen and the National Manufacture case and our case is that in both of those cases, the plaintiffs were not simply seeking a naked money judgment.

[00:52:10] Speaker 00:
They were also seeking prospective injunctive relief that would require HUD to take the government

[00:52:16] Speaker 00:
take certain actions.

[00:52:18] Speaker 00:
Here, in our case, we're not asking for any type of prospective injunctive relief because the damage has already occurred.

[00:52:26] Speaker 00:
They denied my clients funding for homes that my clients had to maintain and operate.

[00:52:33] Speaker 04:
But any money that you would get from any court would not have no strings attached.

[00:52:40] Speaker 04:
There would always be strings attached under the statute.

[00:52:43] Speaker 04:
There would always be a monitoring that

[00:52:46] Speaker 04:
the federal government would be required to conduct over any funds that you would collect from the federal claims or from district court?

[00:52:56] Speaker 00:
Well, in the case where the Court of Claims would issue a money judgment, I think that it's an order saying that how these funds can be used is corollary or ancillary to the Court of Claims jurisdiction.

[00:53:11] Speaker 00:
I think clearly that the court has that jurisdiction to tell

[00:53:16] Speaker 00:
my clients how it can spend the money.

[00:53:17] Speaker 00:
My clients are going to spend the money in accordance with their charters.

[00:53:22] Speaker 00:
They have to.

[00:53:24] Speaker 00:
And again, you know, we would obviously stipulate that we would spend the money for affordable housing activities under NAHASDA.

[00:53:34] Speaker 00:
We're simply asking that the money that we weren't paid and the money that HUD took back be returned to us.

[00:53:42] Speaker 00:
And if

[00:53:45] Speaker 00:
You want to couch it as compensation, we can certainly do that because it's compensation for my clients spending the money to own or to maintain those units in those past funding years when they weren't funded for those units.

[00:54:01] Speaker 00:
That's the crux of the case.

[00:54:03] Speaker 05:
Why don't we turn to a legal exaction now and the arguments you want to make.

[00:54:07] Speaker 05:
I mean, the claim for legal exaction is really solely a due process claim, right?

[00:54:12] Speaker 05:
It's that you were deprived your right for a hearing.

[00:54:14] Speaker 05:
So where does that take you?

[00:54:16] Speaker 05:
How do we get from that to the damages, I presume, that you're seeking here?

[00:54:22] Speaker 00:
Well, our claim for an illegal exaction is based upon a specific violation of the regulations under Section 4165 of the NAASDA.

[00:54:32] Speaker 00:
And I want to note that the passage in Lummi 1 that counsel cited was actually vacated by Judge Weiss in Lummi 2.

[00:54:44] Speaker 00:
And Judge Weiss clearly said that HUD can't recapture funds outside of the confines of the regulatory scheme under Section 4165.

[00:54:56] Speaker 00:
And if they do, it's an illegal exaction of funds.

[00:55:04] Speaker 00:
It's not just a due process claim.

[00:55:07] Speaker 00:
If you look at the regulations under 4165, they're very specific.

[00:55:11] Speaker 00:
And they actually prohibit HUD from

[00:55:14] Speaker 00:
recapturing money unless HUD takes certain actions.

[00:55:19] Speaker 00:
And those actions are meant to give the housing authorities the right to correct a deficiency before they recapture funds.

[00:55:28] Speaker 00:
The deficiency in this case was the housing authority's failure to remove dwelling units from their formula current assisted stock that had been conveyed or

[00:55:42] Speaker 00:
in HUD's eyes were eligible for conveyance.

[00:55:44] Speaker 00:
There's a dispute as to whether they were eligible for conveyance or not, and that's going to be tried on the merits.

[00:55:50] Speaker 00:
But those regulations are very specific, and they prohibit HUD from doing what they did unless HUD complies with those regulations.

[00:55:59] Speaker 06:
Right, and that's the essence of an illegal exemption, is that the government has to comply with certain procedural requirements before they can either deny or recapture

[00:56:10] Speaker 06:
funds.

[00:56:12] Speaker 06:
Having said that, the mere fact that a procedural requirement isn't complied with, does that standing alone, is that enough if in fact upon analysis that even with the hearing the result would have ended up being the same?

[00:56:28] Speaker 00:
I think that under this court's case in Stanley that it is, that where regulation specifically prescribes an agency from taking money,

[00:56:39] Speaker 00:
And the agency does so anyway in violation of that regulation.

[00:56:42] Speaker 00:
The implicit remedy is the return of the funds.

[00:56:46] Speaker 04:
What was the facts of Stanley?

[00:56:49] Speaker 00:
Stanley was a case where the government, I think, took back unpaid taxes based on a procedure that the government wasn't authorized to use.

[00:57:04] Speaker 00:
We think the same applies in this case.

[00:57:06] Speaker 00:
And Judge Weiss, we think, correctly found that that's the case.

[00:57:10] Speaker 00:
And we certainly believe that whether or not Nasdaq's money mandating has nothing to do with our illegal exact claim that two are independent.

[00:57:25] Speaker 00:
I see a lot of time.

[00:57:43] Speaker 04:
So could you just go back to what are the mechanics of what a tribe needs to do to perfect an APA claim?

[00:57:57] Speaker 04:
They get the money withheld from them.

[00:57:59] Speaker 04:
And then what happens?

[00:58:00] Speaker 04:
What do they have to do in the government's view?

[00:58:04] Speaker 02:
They file a claim in district court alleging the action.

[00:58:06] Speaker 02:
About when?

[00:58:07] Speaker 04:
How soon?

[00:58:08] Speaker 04:
How soon does it have to be?

[00:58:09] Speaker 02:
Within the EPA statute of limitations?

[00:58:11] Speaker 02:
I'm sorry, I don't know that off the top of my head.

[00:58:13] Speaker 04:
Well, that's within six years.

[00:58:14] Speaker 02:
You said even the statute of limitations doesn't save you.

[00:58:17] Speaker 06:
You said even if you file within the statute of limitations, you still have no remedy if you don't get it during that actual year.

[00:58:29] Speaker 02:
Well, first of all, there is a remedy under the regulations to seek the secretary's agreement that the money is owed, and if it is, the money will be restored.

[00:58:38] Speaker 02:
And I want to correct something I said earlier.

[00:58:40] Speaker 02:
You asked whether the money could ever be adjusted upwards, and this is the regulation we say applies, and this is the one that the tribes were informed they could apply under.

[00:58:51] Speaker 02:
to the assistant secretary, and I believe Mr. Peoples actually wrote head correspondence with two different assistant secretaries under these provisions.

[00:58:58] Speaker 02:
In any event, 24 CFR 1000.336, and I'm looking at the one that was effective until May 21st, 2007, says, pursuant to resolution of the dispute, this is paragraph B2, little one, if the Indian tribe or TDHE, Tribally Designated Housing Entity,

[00:59:18] Speaker 02:
prevails an adjustment to the Indian tribes where TPHE's subsequent allocation for the subsequent year shall be made retroactive to include only disputed fiscal years.

[00:59:29] Speaker 02:
So if there was a dispute that in a past year the money was improperly... Right.

[00:59:34] Speaker 06:
So my point about the money being treated as somewhat fungible because you can take it from other years was correct.

[00:59:41] Speaker 02:
It would be made out of the current year, so the formula for the current year.

[00:59:44] Speaker 02:
So if the secretary decided in 2017 that he made a mistake in 2016, he could say, okay, for the 2017 formula, you get the FCAS amount, you get the need amount, and you get the upward adjustment.

[00:59:58] Speaker 06:
But from what you were saying, that still is coming out of a subsequent year.

[01:00:01] Speaker 06:
And what you said before means that you can't get it.

[01:00:04] Speaker 02:
This regulation says that in subsequent... Okay, so you were wrong.

[01:00:09] Speaker 06:
What you told us before was wrong.

[01:00:11] Speaker 02:
What I'm saying is the appropriation for the money has to be used in the current year.

[01:00:16] Speaker 06:
So the 2017 funds... You know, you say that, but the statute itself actually contemplates

[01:00:22] Speaker 06:
that the appropriations are not all used.

[01:00:24] Speaker 06:
I mean, the statute itself says you report at the end of every year to Congress about how much grant money is left over.

[01:00:31] Speaker 06:
So the notion that you're throwing it all out in any given year, and you're dividing it all up, and you never have another penny left that hangs over doesn't seem to make any sense, because the statute doesn't contemplate that.

[01:00:42] Speaker 02:
No.

[01:00:44] Speaker 02:
You're right.

[01:00:44] Speaker 02:
The tribes are not required to return that money.

[01:00:46] Speaker 02:
However, in a given year's allocation, it's that year's situation, that year's count

[01:00:51] Speaker 02:
assessment of need and assessment of the currently assisted housing stock that will make the determination for that year.

[01:00:58] Speaker 06:
As I said, the regulation also provides... But the statute also contemplates that money will not always be spent and there would be money left over.

[01:01:06] Speaker 02:
There can be money left over that is in the tribe's line of credit and they're not required to return it.

[01:01:13] Speaker 02:
So if they are given a million and they only spend eight hundred thousand,

[01:01:15] Speaker 02:
They have $200,000 going forward.

[01:01:17] Speaker 06:
That's a difference.

[01:01:18] Speaker 06:
That's the tribe's carryover.

[01:01:20] Speaker 06:
That's a different portion of the statute.

[01:01:22] Speaker 06:
I'm talking about the portion of the statute that says that HUD will report to Congress all the monies it didn't allocate.

[01:01:34] Speaker 06:
And so you're saying to me that you allocate every single penny and you're required to allocate every single penny doesn't seem consistent with the statute.

[01:01:41] Speaker 02:
There could be a mismatch in, for example, appropriation may not come out until January of the fiscal year.

[01:01:46] Speaker 02:
It's already six months late.

[01:01:48] Speaker 02:
Then the tribes have to actually submit their Indian housing plans.

[01:01:52] Speaker 02:
They could be late.

[01:01:53] Speaker 02:
So at the end of the given year, it could very well be that the money has not been spent yet.

[01:01:58] Speaker 02:
But the money is dedicated for that year.

[01:02:00] Speaker 02:
That's not to say one day after the year it could not be spent.

[01:02:04] Speaker 02:
4151 says all available funds.

[01:02:11] Speaker 02:
Yeah.

[01:02:12] Speaker 02:
So 4151, for each fiscal year, the Secretary shall allocate any amounts made available for assistance under this Act for the fiscal year in accordance with the statute.

[01:02:20] Speaker 05:
You started by reading off a CFR site.

[01:02:23] Speaker 05:
Why doesn't that change the calculation with respect to whether or not the statute is money-mandating, if indeed what I heard you saying is 10 years later they can go back and get relief in terms of damages for money that is owed to them?

[01:02:40] Speaker 02:
Not damages, though.

[01:02:41] Speaker 02:
What this says is the secretary has the power.

[01:02:43] Speaker 02:
If the secretary agrees that there an adjustment needs to be made, the secretary can make the adjustment retroactive to include only the disputed fiscal years.

[01:02:54] Speaker 06:
If the secretary says... So then you're saying that the district court could do that as an equitable matter, so that what you argued to the district court in the Tenth Circuit was wrong.

[01:03:06] Speaker 02:
could, if this, and this final agency actually, assistant secretary is deemed to be, I think it says final agency.

[01:03:14] Speaker 04:
Right, so the regulation says, or contemplates that the secretary has the power to refund money from a different appropriation year than the appropriation year where the secretary incorrectly withheld funds.

[01:03:30] Speaker 04:
Is that the understanding of that record?

[01:03:33] Speaker 04:
Okay.

[01:03:35] Speaker 04:
But you're saying a district court wouldn't have the power to do that.

[01:03:40] Speaker 04:
If the district court determined that the secretary has the power to do it, see regulation.

[01:03:44] Speaker 04:
District court doesn't have the power to do that.

[01:03:46] Speaker 02:
The district court could say the secretary acted arbitrarily and capriciously in failing to make the adjustment.

[01:03:52] Speaker 06:
But then how does that square with you telling the 10th Circuit that that would constitute money damages and so they can't award it?

[01:03:58] Speaker 02:
It would not be money damages.

[01:03:59] Speaker 02:
What the Department of Justice is reacting to there was an order by the district court to pay from all allowable funds.

[01:04:07] Speaker 02:
And that they thought was an award or called for the award of damages.

[01:04:12] Speaker 06:
But they were talking about allowable funds under this program, not allowable funds like out of the general fund.

[01:04:20] Speaker 02:
My understanding of the case was there was only a certain number of years for certain tribes had been set aside subject to an order of the court to order that money to be paid to the tribe.

[01:04:31] Speaker 02:
And so there was no question with respect to those funds, the court had jurisdiction.

[01:04:35] Speaker 04:
But those aren't the funds we're focused on in the 10th Circuit case.

[01:04:38] Speaker 04:
The funds we're focused on in the 10th Circuit case are the funds that, for the back money that the tribes wanted there that the government is refusing to give

[01:04:49] Speaker 04:
claiming that there's no right under an APA action, because in their view, the tribes are trying to get that money out of a different appropriation year than the appropriation year in which the money was withheld.

[01:05:01] Speaker 04:
That's the part of the case we're focused on.

[01:05:03] Speaker 02:
My understanding is that they're saying is that the money had been fully appropriated based on the needs of that year.

[01:05:08] Speaker 02:
I'm not aware that there's a case like this where the secretary had a 336 hearing

[01:05:13] Speaker 02:
And that was ruled to be arbitrary and capricious.

[01:05:15] Speaker 02:
And the money at issue in that hearing, as a result, the secretary was ordered to restore that money.

[01:05:22] Speaker 04:
This takes me back to understanding the mechanics of what a tribe needs to do when they believe that HUD has improperly withheld money in a given appropriation year based on HUD's miscalculation of something that occurred in prior appropriation years.

[01:05:41] Speaker 02:
They seek and order that the action is arbitrary.

[01:05:46] Speaker 04:
Start even earlier than that.

[01:05:47] Speaker 04:
What do they do?

[01:05:48] Speaker 04:
They file a lawsuit somewhere?

[01:05:50] Speaker 02:
They file a lawsuit in the district court of proper jurisdiction and proper venue.

[01:05:55] Speaker 04:
How soon do they have to file that lawsuit?

[01:05:58] Speaker 02:
Depends on the statute of limitations for an APA action.

[01:06:03] Speaker 04:
Let's assume APA statute of limitations is six years.

[01:06:07] Speaker 02:
They have six years?

[01:06:09] Speaker 04:
In 2004, a tribe feels like HUD has improperly withheld some money from a grant.

[01:06:18] Speaker 04:
They have until 2010 to file an APA action?

[01:06:22] Speaker 02:
Yes.

[01:06:24] Speaker 02:
It's a statute of limitations.

[01:06:25] Speaker 04:
What do they do?

[01:06:27] Speaker 04:
Do they say, we want recovery of those funds that were improperly withheld in 2004?

[01:06:36] Speaker 02:
Right.

[01:06:36] Speaker 02:
And so the problem is, and what's happening in the 10th Circuit case is, in the case where funds have been set aside because the tribes have first gone to district court and asked for an injunction to ensure that those funds are not appropriated to all other tribes, as required by 4151, they basically stop the allocation.

[01:06:55] Speaker 02:
And if they stop the allocation,

[01:06:57] Speaker 02:
So you're saying the statute of limitations is meaningless.

[01:07:01] Speaker 04:
Yeah, I don't understand.

[01:07:02] Speaker 04:
You just told me they have six years to file their action.

[01:07:05] Speaker 04:
Now you're telling me, no, they have to get in right away.

[01:07:08] Speaker 06:
They can file anything that they want as long as they don't want any relief.

[01:07:11] Speaker 04:
Because HUD might spend all the money and exhaust all the appropriation funds.

[01:07:15] Speaker 04:
So what would be the point of filing something in 2010?

[01:07:17] Speaker 04:
There wouldn't be, I'm simply saying as a matter of... There wouldn't be a point is what you just said.

[01:07:22] Speaker 04:
So what you just told me is a farce.

[01:07:27] Speaker 02:
The district court has the power it has.

[01:07:28] Speaker 02:
It's not a farce?

[01:07:30] Speaker 02:
The district court may not award damages.

[01:07:32] Speaker 02:
And if what they're seeking is damages, which is our view of what is being sought in that particular case in the 10th Circuit, then the court has no jurisdiction to award.

[01:07:39] Speaker 04:
What could they possibly get in 2010 if they file an action six years after the miss withholding in 2004?

[01:07:49] Speaker 02:
And I think we're saying they're nothing.

[01:07:52] Speaker 04:
OK, so it is a farce.

[01:07:54] Speaker 02:
It's not a farce.

[01:07:55] Speaker 02:
The law allows what the law allows.

[01:07:58] Speaker 04:
If they had gone in... My question to you was premised on an ability to actually recover money, not just to have a lark in filing an action.

[01:08:13] Speaker 04:
What would be the way for them to actually get the money back that they believe HUD

[01:08:19] Speaker 04:
inappropriately withheld in 2004.

[01:08:21] Speaker 02:
And what we've said is to get an injunction, a timely injunction.

[01:08:24] Speaker 02:
I don't know how long that would take.

[01:08:26] Speaker 04:
Well, let's start with the beginning.

[01:08:27] Speaker 04:
So do they file a lawsuit?

[01:08:29] Speaker 02:
They file a lawsuit.

[01:08:30] Speaker 04:
In district court.

[01:08:31] Speaker 04:
Under the APA.

[01:08:32] Speaker 02:
Under the APA.

[01:08:32] Speaker 04:
When?

[01:08:34] Speaker 02:
Before the money is allocated.

[01:08:36] Speaker 02:
So it's got to be within that year.

[01:08:39] Speaker 02:
It could be a year.

[01:08:40] Speaker 02:
I don't know.

[01:08:40] Speaker 02:
There's been a discussion between the tribes, and the decision is made.

[01:08:44] Speaker 02:
No, no.

[01:08:45] Speaker 04:
It's important to know when they need to get into court.

[01:08:49] Speaker 04:
Because you're telling me it's contingent on getting into court before the money from that appropriations year is exhausted by HUD.

[01:09:00] Speaker 04:
Yes.

[01:09:00] Speaker 04:
Okay, so when does that happen?

[01:09:03] Speaker 04:
In the very appropriation year?

[01:09:05] Speaker 02:
I understand it happens under 4151, 25-4051, the secretary must allocate all monies for the fiscal year.

[01:09:12] Speaker 02:
How fast that happens?

[01:09:14] Speaker 02:
I assume once tribes put in their Indian housing plans, once they submit their grant monies, I believe it happens pretty quickly.

[01:09:21] Speaker 02:
However, there are more tribes that are part of the appropriation form that may not get their actual grant applications in until a later date and that money is held for them.

[01:09:31] Speaker 02:
How long?

[01:09:32] Speaker 02:
I can't tell you.

[01:09:33] Speaker 06:
What was the effect of the 2008 amendment?

[01:09:35] Speaker 06:
Pardon me?

[01:09:36] Speaker 06:
What was the effect of the 2008 amendment?

[01:09:40] Speaker 06:
It seems to go back several years and contemplate recapturing.

[01:09:45] Speaker 02:
It adopted HUD's regulation, which was an issue in Fort Peck.

[01:09:49] Speaker 02:
So HUD basically said that as part of the formula, that we start with the number of assisted housing there was when the statute was passed.

[01:10:00] Speaker 06:
Right.

[01:10:00] Speaker 06:
It basically said you can't use that precise formula.

[01:10:04] Speaker 06:
You don't use that precise formula.

[01:10:06] Speaker 06:
and then said that as long as you file within 45 days, then you can go all the way back to several years before.

[01:10:13] Speaker 06:
So what was the point of allowing them to go back if there was nothing they could recapture?

[01:10:19] Speaker 02:
I don't know what Congress is thinking.

[01:10:20] Speaker 02:
I do know that if they had a cause of action for specific performance, they could have brought that, obviously, in a district court.

[01:10:25] Speaker 06:
But again, they would have had to do it even with this 2008 amendment.

[01:10:29] Speaker 06:
You're saying they would have had to do it during the original appropriation year?

[01:10:34] Speaker 06:
I mean, Congress keeps trying to get this money to the recipients, and it seems like you're trying to find every possible way not to let it happen.

[01:10:43] Speaker 02:
No, it goes to all the recipients.

[01:10:45] Speaker 02:
It doesn't go to one tribe.

[01:10:46] Speaker 02:
It simply goes to the other tribes.

[01:10:47] Speaker 02:
All of the money gets spent in that way.

[01:10:50] Speaker 02:
If you'd like further briefing on the exact timing, I'd be happy to provide that.

[01:10:55] Speaker 04:
OK, so when they file the action, is that enough to

[01:11:01] Speaker 04:
freeze certain funds, or do they have to actually file an injunction order?

[01:11:05] Speaker 02:
Injunction.

[01:11:05] Speaker 02:
So what was done in the Navajo case, and I can get you the site for that.

[01:11:09] Speaker 02:
In the Navajo case, the Navajo tribe asked that the secretary be enjoined from further distributing the funds so that there would be a target against which the district court could order specific relief by saying, you're ordered to provide those funds to the tribes.

[01:11:25] Speaker 04:
And did the district court in that case for Navajo grant the injunction request?

[01:11:30] Speaker 04:
The court did.

[01:11:31] Speaker 04:
The court did?

[01:11:32] Speaker 04:
Yes.

[01:11:32] Speaker 04:
OK.

[01:11:33] Speaker 04:
So that's the mechanics of how a tribe has to go about it in the government's view under the APA.

[01:11:41] Speaker 04:
You've got to get in early, really early, to protect yourself.

[01:11:45] Speaker 04:
And then you have to file some kind of motion for an injunction.

[01:11:50] Speaker 02:
You have to insure it.

[01:11:51] Speaker 04:
And then if it's granted, then you're safe.

[01:11:54] Speaker 04:
Then you can finally litigate your case.

[01:11:56] Speaker 02:
Then you can ask the court.

[01:11:57] Speaker 04:
Anything else?

[01:12:00] Speaker 04:
Tricks to the trade?

[01:12:02] Speaker 02:
I don't think there's any tricks.

[01:12:03] Speaker 02:
The court has the authority to issue specific relief, and that qualifies as specific relief.

[01:12:10] Speaker 02:
It may not reward damages, but none of this has to do with the district court's... But specific relief can't include

[01:12:20] Speaker 06:
the back year money that Congress was contemplating with the 2008 amendment?

[01:12:25] Speaker 02:
If that money was set aside to identify a specific fund that then becomes the target of the court's specific relief order, it can do that.

[01:12:34] Speaker 02:
That was what was decided.

[01:12:38] Speaker 04:
Why is it that HUD can withdraw money from a later appropriations year for a tribe?

[01:12:48] Speaker 04:
Why isn't it that

[01:12:49] Speaker 04:
if HUD believes there's been some kind of overpayment in a prior year, it ought to go back and get the money from the tribe for that very appropriations year in which they were overpaid, rather than taking it out of the tribe for a later appropriations year.

[01:13:07] Speaker 04:
I mean, that seems like a fungibility notion going on between appropriations years when it comes to those funds, and yet at the same time,

[01:13:18] Speaker 04:
When the tribe wants to do that, to go get money back that it believes was improperly taken from them, they can't try to do that through a different appropriations year.

[01:13:31] Speaker 02:
Because 4165 specifically provides the secretary with certain remedies, one of which is offsetting any overpayments.

[01:13:38] Speaker 02:
Well, in the case of 4165, we're talking about an improper payment extended by the tribe.

[01:13:43] Speaker 04:
Doesn't that contemplate a certain elemental

[01:13:46] Speaker 04:
fungibility to all these funds going across from one year to the next in the statute?

[01:13:52] Speaker 02:
It's a specific grant of authority to the secretary to do that, to offset against future funds.

[01:13:58] Speaker 02:
And that's exactly what happened in this case after discussion with the tribes.

[01:14:02] Speaker 02:
That's what they elected to do.

[01:14:05] Speaker 06:
Again, this was not a case where... So if the secretary has the authority to do that, one would think that under the APA, a district court could order the secretary to do that, even if it affects the payment of money.

[01:14:15] Speaker 02:
secretary has the authority to do is recover those funds.

[01:14:19] Speaker 06:
As I said, in this case, the secretary has agreed not to recover certain funds and a district judge could... But you've also said the secretary has the authority to go back for prior years where there were underpayments and to make those payments from later distributions.

[01:14:34] Speaker 02:
Under 336, the secretary can

[01:14:38] Speaker 02:
make an adjustment to the Indian tribes or the TDHB's subsequent allocation.

[01:14:44] Speaker 02:
So in the following year, the secretary has been given authority to make a retroactive payment following that.

[01:14:52] Speaker 06:
So a district court conceivably could order the secretary to do that for a lot of years going forward in order to make up for these payments that weren't made.

[01:15:03] Speaker 02:
This becomes final agency action.

[01:15:05] Speaker 02:
The final agency action is

[01:15:07] Speaker 02:
is subject to review.

[01:15:09] Speaker 02:
And I really haven't examined it beyond that.

[01:15:11] Speaker 05:
I'm sorry.

[01:15:12] Speaker 05:
I didn't hear what you said.

[01:15:13] Speaker 02:
That final agency action is subject to review.

[01:15:18] Speaker 05:
So if one challenged it in district court and said the secretary acted arbitrarily by not doing this, the relief could be that the secretary would do it, and then we'd be into this fungibility of funds in future years, right?

[01:15:32] Speaker 02:
We'd be ordering a specific relief that the secretary declined,

[01:15:36] Speaker 02:
to grant an adjustment of whatever it was.

[01:15:40] Speaker 05:
And the court would hold that as arbitrary and capricious, and the secretary would have to... Yes, so there is a way to do it, that the district court has authority to do it.

[01:15:48] Speaker 05:
It's just through the track of the statutory provision.

[01:15:53] Speaker 05:
Right.

[01:15:53] Speaker 02:
Okay.

[01:15:55] Speaker 02:
I just wanted to make clear that our reference to strings attached is found in our reply brief at page 7, and our opening brief at page 17 will refer to the terms used by this court.

[01:16:05] Speaker 02:
in NCMS, my reference to metaphysical, only observes that in Bowen.

[01:16:10] Speaker 02:
The court said it's not clear whether the court of claims would have had jurisdiction there, especially because the words were shall pay.

[01:16:16] Speaker 02:
It simply said in determining the district court's jurisdiction that it possessed that jurisdiction.

[01:16:21] Speaker 02:
It did not find the court of claims would not have jurisdiction, but found that that jurisdiction was doubtful.

[01:16:33] Speaker 04:
How does that help you?

[01:16:35] Speaker 02:
What we've drawn from Bowen is simply the fact that the court did not stop its analysis of the word chape.

[01:16:45] Speaker 02:
It looked further to see the true nature of the complaint reflecting on the fact that the adjunctions and other... Right.

[01:16:52] Speaker 06:
And it went out of its way to say it wasn't deciding whether the Court of Federal Claims would also have jurisdiction.

[01:16:57] Speaker 02:
That's right.

[01:16:58] Speaker 02:
It just said that the district court did.

[01:17:00] Speaker 02:
And so we don't need Bowen to win this case.

[01:17:02] Speaker 02:
It would be odd if NCMS and Bowen, which are very much like this,

[01:17:05] Speaker 02:
statute were to belong in one court, and in this case were to belong in the Court of Federal Claims.

[01:17:12] Speaker 06:
But both courts didn't actually say that it only had to be in one.

[01:17:18] Speaker 02:
Did not say exactly that.

[01:17:19] Speaker 02:
The court at NCMS did say that to be considered was also the jurisdiction at issue was the jurisdiction of the Court of Federal Claims.

[01:17:26] Speaker 02:
We're sort of examining it and so it has two sides of the same claim.

[01:17:30] Speaker 02:
And because these monies could not be spent other than for a certain purpose, as here,

[01:17:35] Speaker 05:
the court observed that this court would not have jurisdiction.