[00:00:18] Speaker 02:
Mr. Cardone.

[00:00:19] Speaker 06:
Good morning, Your Honors.

[00:00:21] Speaker 06:
May it please the Court?

[00:00:22] Speaker 06:
I'm representing my client, Tim LaBatt.

[00:00:24] Speaker 06:
He's a member of the Sistan Wapdun tribe of South Dakota, and he's president of the courtroom and council.

[00:00:31] Speaker 04:
Could I ask you a plenary question?

[00:00:32] Speaker 04:
Is this program set up as a result of the government settlement still one that exists?

[00:00:39] Speaker 04:
In other words, if you are today, I don't know if you had an original five-year term, but there was a provision for extensions

[00:00:47] Speaker 04:
Does the program still exist that someone could apply for relief under it?

[00:00:54] Speaker 06:
No.

[00:00:54] Speaker 06:
The purpose of the earlier case in the US District Court, I brought a motion to intervene individually on behalf of Mr. Labatt.

[00:01:04] Speaker 06:
And so the effort there was to address Mr. Labatt's rights.

[00:01:07] Speaker 04:
I don't think you're understanding my question.

[00:01:09] Speaker 04:
My question, there is a program that was set up

[00:01:13] Speaker 04:
pursuant to this settlement between the government and some plaintiffs.

[00:01:17] Speaker 04:
And it was a track A and track B, and there are administrators to decide these claims, right?

[00:01:23] Speaker 04:
Right.

[00:01:24] Speaker 04:
Does that program still exist?

[00:01:26] Speaker 06:
No, it's terminated a long time ago.

[00:01:28] Speaker 06:
Okay.

[00:01:29] Speaker 06:
And so that's why it terminated, and then we tried to intervene, and the U.S.

[00:01:34] Speaker 06:
District Court led to the D.C.

[00:01:36] Speaker 06:
Circuit opinion.

[00:01:37] Speaker 06:
And I guess, for my part, we think this is an important case,

[00:01:41] Speaker 06:
uh, because of a simple principle that we're borrowing from the, uh, Sakna Singh case in the D.C.

[00:01:47] Speaker 06:
Circuit.

[00:01:48] Speaker 06:
And that, uh, it's sort of simple, right?

[00:01:50] Speaker 06:
That the genus of cases under the duck drag is breach of contract.

[00:01:53] Speaker 06:
And there's a species called breach of settlement agreement.

[00:01:57] Speaker 06:
When a breach of settlement agreement is, uh, a claim is brought against any party, like a private party, in the Sakna Singh case, and the defendant raises the argument that, hey, look, there's a waiver

[00:02:11] Speaker 06:
and there's finality in the settlement agreement, the Sister Circuit, the D.C.

[00:02:15] Speaker 06:
Circuit said, well, wait a minute, and the D.C.

[00:02:19] Speaker 06:
Circuit, just like the Court of Federal Claims and this Court, do this jurisdictional inquiry at the beginning of the case, if there's a breach of settlement agreement claim, and the defendant's defense is finality in waiver arising from the settlement agreement, then it's not a jurisdictional defense, it's a substantive defense.

[00:02:40] Speaker 06:
And the D.C.

[00:02:41] Speaker 06:
Circuit said in its opinion in Sakna Singh, remand, and if there was a breach of the settlement agreement, then finality, waiver, the other defenses the defendant has raised from the settlement agreement don't apply and jurisdiction exists.

[00:03:00] Speaker 06:
If there was no breach of the settlement agreement determined, then there would be no jurisdiction.

[00:03:08] Speaker 06:
The page is 23 and 24.

[00:03:09] Speaker 01:
Can I just ask, what you contemplate if you get to go back to the Court of Federal Claims and reverse the jurisdictional ruling is that you would be asking the Court of Federal Claims to say there was a breach.

[00:03:28] Speaker 01:
If there had not been a breach, we would have gotten more informative declarations from Mr. Lake and or Mr. Hawkins.

[00:03:37] Speaker 01:
And had we been able to do that, then the Track B arbitration would have resulted in a certain damages award.

[00:03:46] Speaker 01:
We lost that because of the breach.

[00:03:48] Speaker 01:
The government has to pay them.

[00:03:50] Speaker 06:
Well, no, not quite, because the discrimination actually occurred.

[00:03:56] Speaker 06:
I mean, this is Mr. Labatt's life.

[00:03:59] Speaker 06:
He is the poster child for the Keeps Eagle case in the sense he was running a farm in the 80s.

[00:04:05] Speaker 06:
The 80s were tough on farmers.

[00:04:07] Speaker 06:
operational loans were made to white farmers in the same county.

[00:04:09] Speaker 04:
Let me see if I can help because I have somewhat the same question that Judge Toronto has.

[00:04:14] Speaker 04:
Let's assume that we agree with you that there was a breach of the agreement and that the government should have allowed its employees to sign these affidavits and submit them.

[00:04:24] Speaker 04:
The problem is at that point we're not sure what the claims administrator would have done and you say the program no longer exists.

[00:04:35] Speaker 04:
Is one alternative here to reconstruct that program?

[00:04:40] Speaker 04:
My recollection is that in other Court of Federal Claims cases where we've had a similar situation, I seem to recall one about a promotion board that we've said that the structure for the original decision-making should be reconstructed and that the claim should be submitted that way.

[00:05:01] Speaker 04:
Because, I mean, it's very difficult to know

[00:05:04] Speaker 04:
if you're the court of federal claims, how this would have come out if the government hadn't breached the agreement.

[00:05:12] Speaker 04:
So isn't there a possibility here of reconstructing the administration process and having the claim properly submitted with affidavits from the government employees to a reconstituted administration?

[00:05:29] Speaker 06:
Yeah, I mean, I attempted to answer the question.

[00:05:32] Speaker 06:
It's a fair question.

[00:05:33] Speaker 06:
I'm doing my best to respond.

[00:05:35] Speaker 06:
And so we were very careful in the complaint to explain what Mr. Labatt, who was following the case very closely because of the importance of it, not only for the money, but for his life, because he had lost his farm.

[00:05:47] Speaker 06:
He had lost his kid to suicide because of it.

[00:05:50] Speaker 06:
And so my client was really concerned about this case.

[00:05:54] Speaker 06:
And he was following it.

[00:05:55] Speaker 06:
And he thought he had a prototype case.

[00:05:56] Speaker 06:
So his understanding.

[00:05:58] Speaker 06:
of the settlement agreement is in the complaint.

[00:06:01] Speaker 06:
His understanding was that the government was laying down because they discriminated against us, Mr. Labatt.

[00:06:08] Speaker 06:
And so the breach for Mr. Labatt obliterated his understanding of the agreement.

[00:06:14] Speaker 06:
I mentioned in the... But I'm hypothetical.

[00:06:16] Speaker 04:
What we're saying is hypothetical.

[00:06:18] Speaker 04:
We agree with you.

[00:06:19] Speaker 04:
Let's hypothetically say we agree with you that the government breached the agreement.

[00:06:24] Speaker 04:
The question then becomes what's the relief

[00:06:27] Speaker 04:
that you should get as a result of that.

[00:06:30] Speaker 04:
And I think what we're suggesting to you is it becomes difficult for the Court of Federal Claims to know what the administrator would have done but for the breach.

[00:06:42] Speaker 04:
And I'm trying to explore with you ways to figure out what the relief would have been if there had been no breach.

[00:06:51] Speaker 06:
Mr., with respect to the remedy, it would have been

[00:06:54] Speaker 06:
We had an expert report calculating the loss, and it was $202,000.

[00:06:58] Speaker 06:
And then our relief that we'd seek in district court, sometimes our court of federal claims, would include because we had a non-judicial process guaranteed to us.

[00:07:09] Speaker 06:
I mean, Mr. LaVatte thought, that's over.

[00:07:10] Speaker 06:
We have a non-judicial process.

[00:07:13] Speaker 06:
The attorney fees are rising from it.

[00:07:15] Speaker 06:
Because when you get an agreement with the government that it's going to lay down, that is his expectation of the bargain, that he didn't have to do much

[00:07:24] Speaker 06:
because he had actual discrimination demonstrated in his presentation to the arbiter.

[00:07:30] Speaker 06:
So his presentation to the arbiter is no question demonstrates the discrimination, demonstrates the other similarly situated farmers who were getting the loans that he wasn't getting.

[00:07:41] Speaker 06:
And so that's it.

[00:07:44] Speaker 06:
The remedies are you get the money that he's entitled to, and then you get the attorney's fees.

[00:07:50] Speaker 06:
This whole thing, all these

[00:07:52] Speaker 06:
Round and roundabout.

[00:07:53] Speaker 06:
Now, the good thing is the consequences of your decision on the important question is that the next person that this happens to in one of these big Pigsford, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh, uh,

[00:08:22] Speaker 06:
Then when the government says you've waived and it's final, you know it's not jurisdictional.

[00:08:30] Speaker 06:
It's substantive.

[00:08:31] Speaker 06:
So Labatt 1, the DC Circuit opinion, Labatt 2 then will be the roadmap for future plaintiffs to bring their claims that the government has breached the implied duty of good faith and fair dealing under the settlement agreement.

[00:08:47] Speaker 06:
And so here I am.

[00:08:48] Speaker 06:
I didn't know what to do.

[00:08:50] Speaker 02:
Can I just move you on just another related question, I think.

[00:08:54] Speaker 02:
In the appendix at 173 and 174, it's the track B determination by the claims administrator in this case.

[00:09:03] Speaker 02:
Great.

[00:09:04] Speaker 02:
And what I'm taking jurisdiction off the table, but now you have to state a plausible claim for your relief.

[00:09:15] Speaker 02:
He seems to have found in the alternative.

[00:09:18] Speaker 02:
And it doesn't matter, I don't think, whether he was correct or incorrect, because his decision, I think we would all agree, is not reviewable.

[00:09:26] Speaker 02:
He concludes, first point is that the declarations came from federal officials, and that's a problem.

[00:09:34] Speaker 02:
But the second, he says, the final sentence on page 174 says further, the statements in that declaration, which were all the statements that the two people made,

[00:09:45] Speaker 02:
purporting to establish that white farmers received a benefit that you were denied lacked the specificity necessary to establish that those benefits were in fact received by the white farmers.

[00:09:58] Speaker 02:
What that leads me to conclude or to ask you to comment is if the claims administrator, even incorrectly, because we don't get to review that,

[00:10:10] Speaker 02:
said and based to finding in the alternative on the fact that even if I will accept those declarations, they still are not enough to sustain this claim.

[00:10:20] Speaker 02:
Why doesn't that just end your case on a failure to state a claim?

[00:10:24] Speaker 06:
Justice, truth.

[00:10:26] Speaker 06:
My client had submitted a declaration which documented the discrimination.

[00:10:33] Speaker 06:
had documented in detail and the white farmers received better funding.

[00:10:37] Speaker 04:
There's a reference here on 173 to the declaration.

[00:10:41] Speaker 04:
Is that your declaration?

[00:10:44] Speaker 06:
Yes, it refers to my declaration.

[00:10:46] Speaker 04:
Is that declaration that was before the claims administrator in the joint appendix in this case?

[00:10:58] Speaker 05:
I don't recall.

[00:11:01] Speaker 01:
I think it's attached to the registry.

[00:11:04] Speaker 01:
Supplemental appendix seven.

[00:11:06] Speaker 01:
That's your declaration.

[00:11:08] Speaker 04:
Is that the version that was before the client's announcement?

[00:11:16] Speaker 05:
Yes, that's the declaration.

[00:11:20] Speaker 02:
And did your declaration encompass all that was said and laid out by the two witnesses here?

[00:11:30] Speaker 02:
That's the way I understood it.

[00:11:33] Speaker 06:
Yes, this declaration laid out what I had discovered from Lake and Hawkins up to that point.

[00:11:41] Speaker 06:
And then there was a discontinuation because of the government's structure of cooperating with me.

[00:11:46] Speaker 01:
Just to be clear, I mean, I had come to this focusing on that same sentence, thinking that it was crucial to your argument that you say the Lake and Hawkins declarations, had there not been a breach, would have had more information in them than they did.

[00:12:04] Speaker 01:
So the insufficient specificity

[00:12:08] Speaker 01:
of what was actually given in the past to the track being neutral, is not a reason to conclude that had there been no breach, you would have had no case.

[00:12:20] Speaker 01:
Because you could have gotten more.

[00:12:22] Speaker 01:
I thought that's what you were saying.

[00:12:23] Speaker 06:
No, that's right.

[00:12:24] Speaker 06:
And so on page SAPPX10, you know, what Laika told Labatt and me, for example, was that these are the non-Indian farmers in the area, the white farmers,

[00:12:36] Speaker 06:
who are receiving loans in amounts that would have helped Mr. Labatt.

[00:12:40] Speaker 02:
No, I know, but that's why I said that whether or not the claims... But let me understand this.

[00:12:44] Speaker 02:
When you did the... Your allegation with respect to reliance on the settlement agreement in that provision, it deals with what the claims administrator did in this Track B analysis, right?

[00:12:59] Speaker 02:
Well, it happens.

[00:13:00] Speaker 06:
It happens, no.

[00:13:01] Speaker 06:
I mean, I have a career suing the government.

[00:13:04] Speaker 06:
and what I'm focusing on is government misconduct.

[00:13:07] Speaker 06:
I mean, in a general scheme of things, when the government settles a case... But you're saying the misconduct was what?

[00:13:12] Speaker 02:
That they didn't refuse to accept the declarations of these two people?

[00:13:16] Speaker 02:
What was the misconduct?

[00:13:17] Speaker 06:
The misconduct was that the BIA supervisors told these witnesses of my client, which the only way, because there's no appeal in this, no hearing in this process, that the only way my client could get his $250,000 was getting affidavits from these non-

[00:13:33] Speaker 06:
family witnesses, which he knew about before the settlement agreement.

[00:13:37] Speaker 06:
So when he agreed to the settlement agreement but not objecting out of the class, he knew exactly what he was doing.

[00:13:43] Speaker 02:
You're not responding to my question.

[00:13:45] Speaker 02:
Maybe I'm not being clear.

[00:13:47] Speaker 02:
He came up with the... I've understood the argument here and the claim against the government of lack of fear of dealing, etc., to be based on the fact that he got these two declarations from these employees and the government told them they couldn't sign those declarations.

[00:14:03] Speaker 02:
So all you have were unsigned declarations because of that provision in the settlement agreement that said employees couldn't participate.

[00:14:11] Speaker 02:
Am I wrong or right about that?

[00:14:13] Speaker 06:
And I'm sorry.

[00:14:13] Speaker 06:
I must not be communicating.

[00:14:15] Speaker 06:
But we can't look at the settlement agreement without looking at my client's mind.

[00:14:21] Speaker 06:
I mean, there's a meeting in the mindset.

[00:14:23] Speaker 02:
We're not disputing the settlement agreement here.

[00:14:25] Speaker 02:
Just what?

[00:14:27] Speaker 02:
Your client got declarations from these two people, right?

[00:14:32] Speaker 02:
And then the government said, you can't sign them because of the provision in the settlement agreement.

[00:14:38] Speaker 04:
Are you saying that if the government hadn't breached, we would have been able to get more information from these people?

[00:14:44] Speaker 06:
Absolutely.

[00:14:44] Speaker 06:
They're his friends.

[00:14:46] Speaker 06:
They're members of the System of the Wabin Trap.

[00:14:48] Speaker 06:
They witnessed the discrimination.

[00:14:49] Speaker 06:
They're full supporters of the Keeps Eagle case.

[00:14:52] Speaker 06:
It's so obvious that they'd be supporting a tribal member regarding this.

[00:14:56] Speaker 02:
No, but what I don't understand is I thought you went to Track B.

[00:15:01] Speaker 02:
And you gave the claims administrator the information you had gotten in the declarations.

[00:15:08] Speaker 02:
You included all of that information in your affidavit, right?

[00:15:14] Speaker 06:
Not all the information, because they cut me off.

[00:15:16] Speaker 06:
I wanted to meet with them and finish the declarations.

[00:15:19] Speaker 06:
And it didn't happen because they got the instructions from the BIA.

[00:15:23] Speaker 02:
So these declarations that you got that were unsigned do not represent the declarations that you would have gotten in the absence of the brief?

[00:15:31] Speaker 06:
That's correct.

[00:15:32] Speaker 02:
How is that?

[00:15:33] Speaker 02:
Because I thought, I don't know, I obviously misread the record, but I assumed you got these declarations, and then it was a matter of signing them.

[00:15:41] Speaker 02:
And because the government told them they couldn't sign them, you had the completed declarations, which you didn't have signed declarations.

[00:15:48] Speaker 02:
So am I wrong about that?

[00:15:50] Speaker 06:
Yeah.

[00:15:51] Speaker 06:
The D.C.

[00:15:51] Speaker 06:
Circuit, there was extensive questioning about this, and they became satisfied, yes, because I didn't have subpoena power.

[00:15:58] Speaker 06:
I didn't have the power to notice a deposition.

[00:16:00] Speaker 06:
I didn't have any power.

[00:16:01] Speaker 06:
This is a paper-only, no hearings, no appeal process, that I was stuck having to solicit from parties this.

[00:16:10] Speaker 04:
Now, they had made... But what you're saying is, to be clear, if I understand correctly, that if you had, if the government hadn't breached, you would have met with these people and you would have gotten more information from them, and the affidavits would have been more complete.

[00:16:25] Speaker 06:
Exactly.

[00:16:25] Speaker 06:
Like Mr. Labatt's declaration himself, because

[00:16:28] Speaker 06:
of the, this was publicly known, this discrimination throughout this period, and these were tribal officials, tribal members who knew about the discrimination, and they witnessed it.

[00:16:40] Speaker 06:
And so the whole point here is that Mr. Labatt has gotten in a situation where there's an important principle that we recognize from the Sakna Singh case, and if we can just get that principle in the Federal Circuit applied here,

[00:16:58] Speaker 06:
And that is that with respect to breach of settlement claims, when the government raises waiver or finality based on the breach of the settlement agreement, then what happens is it's a substantive matter, not a jurisdictional matter.

[00:17:14] Speaker 06:
And we've worked very hard to get to this position where this legal principle can be adopted by the Federal Circuit.

[00:17:20] Speaker 06:
And I just want to close with Associate Justice Louis Brandeis saying, if we don't, if we desire respect for the law,

[00:17:28] Speaker 06:
we first must make the law respectable.

[00:17:31] Speaker 06:
And so the point here is that I know this has been really a lot of work to go through the D.C.

[00:17:36] Speaker 06:
Circuit and get to the Federal Circuit, but this is an important principle, and the government has argued against that.

[00:17:43] Speaker 02:
And so we need to make sure we get that figured out.

[00:17:57] Speaker 03:
Thank you.

[00:17:57] Speaker 03:
Good morning, Your Honor.

[00:18:05] Speaker 04:
Turning to the questions that were just... It strikes me that the government's argument that the settlement agreement precluded the suit for breach of the settlement agreement is near-privilege.

[00:18:15] Speaker 04:
Why am I not correct about that?

[00:18:18] Speaker 03:
Because the settlement agreement

[00:18:20] Speaker 03:
included the finality and waiver provisions that said that the determinations were only.

[00:18:25] Speaker 04:
I didn't say you can't sue for breach of the settlement agreement.

[00:18:27] Speaker 04:
We have dozens of cases in which that's happened, where there's been a settlement agreement and a mechanism under the agreement, and the settlement is said to be final.

[00:18:35] Speaker 04:
But if there's a breach of the settlement agreement, people can sue.

[00:18:38] Speaker 04:
Isn't that right?

[00:18:39] Speaker 03:
There's normally, Your Honor, yes.

[00:18:40] Speaker 03:
Normally, that is the case.

[00:18:42] Speaker 03:
However, in the facts presented here, you have two specific issues that preclude judicial review.

[00:18:47] Speaker 04:
Where does the agreement say you can't sue for breach of the settlement agreement?

[00:18:51] Speaker 03:
The agreement includes the waiver that the claim determinations made are not reviewable by any court.

[00:18:58] Speaker 02:
That has nothing to do with the settlement agreement.

[00:19:00] Speaker 03:
Except that the alleged breach goes directly to the court would have to review the substance of the determination in order to grant any sort of relief, in order to exercise jurisdiction.

[00:19:12] Speaker 03:
Both the statement, Your Honor alluded to it earlier, which is the alternative rationale of the track being neutral is, okay, putting

[00:19:21] Speaker 03:
the procedural issues aside of whether you submitted these declarations.

[00:19:25] Speaker 03:
I've looked at the merits of what the content of the declarations, and I find that it's insufficient in order to award relief.

[00:19:32] Speaker 02:
Under the terms of this- But he seemed to be saying that he was constrained in terms of what he could do with respect to these employees.

[00:19:38] Speaker 02:
Now, we're not deciding the merits of the case.

[00:19:41] Speaker 03:
We're just seeing whether or not he said- Well, I'm looking at what the track being neutral said, which is, even if I was to, you know,

[00:19:50] Speaker 03:
even if you were to have submitted the declarations properly.

[00:19:53] Speaker 02:
I know, but I understood his response to my questions in that regard, or he would have done a lot more to get more information from these declarations, if not for the fact that the government stepped in and intervened.

[00:20:07] Speaker 03:
And all of that, Your Honor, is extra record evidence that simply the vermin of counsel, there's nothing

[00:20:12] Speaker 03:
in the record to support that.

[00:20:13] Speaker 03:
In fact, it's quite the opposite.

[00:20:15] Speaker 01:
Well, not quite nothing.

[00:20:16] Speaker 01:
We have the complaint.

[00:20:17] Speaker 01:
This is on 12B in paragraph 187 on page of the appendix 64.

[00:20:22] Speaker 01:
It talks about having presented the declarations for review, revision, and ultimately, perhaps, certainly, there could have been more said.

[00:20:31] Speaker 01:
But at the complaint stage, we really are going to conclude that getting better declarations

[00:20:42] Speaker 01:
was not part of what this complaint is saying was made impossible by the government's directive to Lake and Hawkins to stop talking to him?

[00:20:53] Speaker 03:
Because, Your Honor, the declarations that were submitted were offered as offers of proof.

[00:20:59] Speaker 01:
That's the message again.

[00:21:01] Speaker 01:
The question is, on the assumption that what you did was a breach, had you not breached, might they have gotten better declarations?

[00:21:12] Speaker 03:
I don't know whether they could have gotten better decorum.

[00:21:14] Speaker 03:
There's no evidence suggesting either way.

[00:21:15] Speaker 01:
Well, his question of evidence is on the complaint at the complaint stage.

[00:21:18] Speaker 03:
But a complaint's not evidence, Your Honor.

[00:21:20] Speaker 03:
A complaint's just an allegation.

[00:21:22] Speaker 04:
Well, we have to decide the case based on the allegation.

[00:21:25] Speaker 03:
Your Honor.

[00:21:25] Speaker 04:
That's the way it is.

[00:21:27] Speaker 03:
Your Honor.

[00:21:27] Speaker 04:
Look, if the government tells an employee, you can't testify in a proceeding, that's completely improper.

[00:21:35] Speaker 04:
Is it not?

[00:21:36] Speaker 04:
If it relates to something, at least, that happened before,

[00:21:40] Speaker 04:
the employee became an employee of the government?

[00:21:43] Speaker 03:
Not if the agreement that's at issue here specifically precludes federal employees from participating in this process.

[00:21:51] Speaker 04:
But normally that would be close to an obstruction of justice if an employer told an employee, I want you to shut up.

[00:21:57] Speaker 04:
You can't testify about facts that you know in a judicial proceeding, right?

[00:22:03] Speaker 03:
In other circumstances, that could well be the case.

[00:22:06] Speaker 03:
In this circumstance, the settlement agreement

[00:22:08] Speaker 03:
specifically stated that employees of the United States could not participate in the non-judicial claims process.

[00:22:14] Speaker 04:
Yeah, but the question is whether we should read that.

[00:22:16] Speaker 04:
It's meaning that they can't supply relevant information.

[00:22:19] Speaker 04:
That's so unusual, so unusual, and so improper in most circumstances.

[00:22:25] Speaker 04:
Why, in heaven's name, should we read the agreement is doing that?

[00:22:28] Speaker 03:
Because, Your Honor, the agreement is coming out of these

[00:22:31] Speaker 03:
This agreement took over.

[00:22:33] Speaker 03:
There was 10 years of discovery going up to it.

[00:22:36] Speaker 04:
Why would parties agree to something that said that the claims administrator can't get relevant information from government employees?

[00:22:42] Speaker 03:
Because, Your Honor, this all comes.

[00:22:44] Speaker 01:
Can I just add to that?

[00:22:45] Speaker 01:
Yes.

[00:22:46] Speaker 01:
The Department of Interior's 2E regulation at 43 CFR 2.82, what's it, C5, which says employees who voluntarily testify while on their own time

[00:23:00] Speaker 01:
or in approved leave status as private citizens, as defacts or events that are not related to the official business of the department that's excluded from an otherwise general rule about employees not testifying.

[00:23:15] Speaker 01:
Isn't that of a piece with the kind of general background principle that Judge Dyke is talking about?

[00:23:21] Speaker 01:
A current employee testifying in his private capacity, particularly about things learned as a matter of personal knowledge before he became a federal employee, is entitled to testify.

[00:23:33] Speaker 01:
Why would we read the settlement agreement to be contrary to a governing regulation and other more general principles?

[00:23:42] Speaker 03:
Well, Your Honor, the two employees

[00:23:45] Speaker 03:
were identified as Federal employees before in their draft declarations and in Mr. Cardall's declaration as well.

[00:23:52] Speaker 03:
He identified them as Federal employees.

[00:23:53] Speaker 03:
He did not state either in his declaration or before the Track B Neutral that we had asked these declarants to offer testimony in their personal capacity and not in their official capacity.

[00:24:06] Speaker 03:
In fact, a fair reading of that, because it was pointed out in the At Appendix 173 and 174,

[00:24:14] Speaker 03:
uh... the the track the neutral said since mister carlos declaration makes clear that you obtained information the declaration from the two federal officials named i think that is a fair reading of that is to show that the the track the neutral look at this and say wait a minute this there's a problem here federal employees are not even supposed to be involved in this process the reason for that i think it's a in in in official capacity or

[00:24:40] Speaker 03:
There was no evidence offered or no statement made that it was in any other capacity or that it was solicited in any other capacity.

[00:24:49] Speaker 01:
Was Hawkins the one who was not a federal employee at the time of the events?

[00:24:55] Speaker 03:
I believe so, yes.

[00:24:57] Speaker 01:
So if Mr. Hawkins is going to declare, file a declaration saying, here's what I knew at the time of these events, he could not possibly

[00:25:09] Speaker 01:
be testifying in his official capacity, because he didn't acquire the knowledge in his official capacity.

[00:25:15] Speaker 01:
Mr. Lake may be a different story, although I'm not sure under the Tuohy regulation whether that would actually be different.

[00:25:22] Speaker 01:
But Mr. Hawkins, he didn't even get the knowledge while he was a federal employee.

[00:25:26] Speaker 03:
Well, I think even if this case were to be remanded, we would contest the veracity of those claims, that they were instructed by the government to do that.

[00:25:37] Speaker 03:
But putting that aside,

[00:25:40] Speaker 04:
Let's assume hypothetically we conclude that a suit for breach of a settlement agreement is permissible and that, at least based on the complaint, that we conclude that the government breached the settlement agreement by not permitting the employees to sign declarations and cooperate with the plaintiff's counsel.

[00:26:03] Speaker 04:
Let's assume that.

[00:26:05] Speaker 04:
Then the question becomes, what's the remedy?

[00:26:07] Speaker 04:
And there are, I recall, claims court decisions where something was supposed to be submitted to a board.

[00:26:17] Speaker 04:
I recall one in particular, a promotion board case, and I can't identify it.

[00:26:22] Speaker 04:
But in which the relief was to reconstitute the board, or in this case, the claims process, and have a decision rendered without

[00:26:36] Speaker 04:
of the government breach affecting it.

[00:26:39] Speaker 04:
Is that a possibility here that the claims process could be reconstituted for that purpose?

[00:26:45] Speaker 03:
I don't think that's a possibility, Your Honor, because the purpose of the settlement agreement was to have the government not be involved in any way in the non-judicial claims process.

[00:26:57] Speaker 04:
That's not really an answer.

[00:26:58] Speaker 04:
I'm talking about a practical matter.

[00:27:00] Speaker 04:
Is the claims administrator who ruled on these Track B claims somebody who's still around?

[00:27:08] Speaker 04:
The program is over.

[00:27:10] Speaker 04:
Is that correct?

[00:27:10] Speaker 03:
I believe that the program is concluded.

[00:27:12] Speaker 03:
There may still be some SIPRE litigation going on.

[00:27:17] Speaker 04:
SIPRE litigation?

[00:27:19] Speaker 03:
Part of the remainder of any unused funds were to be distributed.

[00:27:23] Speaker 03:
By class action, SIPRE.

[00:27:26] Speaker ?:
Yes.

[00:27:27] Speaker 03:
Your honor, I don't think so without having the court literally step into the shoes of the administrator and make those determinations on its own.

[00:27:38] Speaker 04:
Well, that's the alternative, would be to have the claims court say, this is what I would have done if I were the administrator and there hadn't been a breach.

[00:27:44] Speaker 04:
I'm offering you a less drastic remedy, which would be reconstituting the claims process.

[00:27:52] Speaker 03:
I don't know of any way or circumstance in which that would be possible under the terms of this settlement agreement.

[00:27:58] Speaker 03:
I mean, the funds have been dispersed.

[00:28:01] Speaker 04:
Not under the settlement agreement, under the auspices of the claims court.

[00:28:05] Speaker 04:
In other words, trying to figure out what would have happened here if they had been able to get full information from the declarants and submitted those declarations to the claims administrator.

[00:28:19] Speaker 04:
Would the relief have been granted or not?

[00:28:24] Speaker 03:
calling in, suggesting that the claims administrator would be called in to testify to give some kind of advisory opinion?

[00:28:33] Speaker 04:
No, he would be given new declarations resulting from cooperation by the government employees, and he would decide what the relief was that would be appropriate under those circumstances under the construct of the settlement.

[00:28:52] Speaker 03:
I think that would be totally outside the bounds that would blow the settlement wing apart.

[00:28:57] Speaker 02:
So what's your solution?

[00:28:57] Speaker 02:
What's your solution?

[00:28:58] Speaker 02:
Take as a given that we were hypothetically to say there was a breach of the settlement agreement and therefore he has the right to rely on whatever declarations or whatever.

[00:29:10] Speaker 02:
And then how do we know where, I assume, the government's position is, and therefore we should automatically give him the amount he's requesting.

[00:29:17] Speaker 02:
I assume you're saying, well, that just means you should reconstitute or do something to re- So what's your suggestion?

[00:29:24] Speaker 03:
If you don't like Dutch diaspora.

[00:29:26] Speaker 03:
I don't think that you can, that there's any damages that are available in the event of a breach in this case, because those terms, the award of damages under the settlement agreement was given exclusively

[00:29:36] Speaker 03:
to the track being neutral whose decisions weren't reviewable.

[00:29:39] Speaker 01:
This would not be an award of damages under the settlement agreement.

[00:29:43] Speaker 01:
It would be an award of damages not from the funds set aside in the settlement agreement but from the judgment fund for the government's breach of the settlement.

[00:29:52] Speaker 03:
Because you have to assume that but for the breach, the administrator would have awarded some measure of relief.

[00:29:59] Speaker 01:
It would not matter of assumption.

[00:30:01] Speaker 01:
It would be a matter of

[00:30:06] Speaker 03:
then as part of the settlement process here, Mr. Labatt agreed to forgo both judicial

[00:30:18] Speaker 01:
uh... review of the claims to termination but also any any challenge otherwise on these discrimination claims he did not agree to forego any challenge to the government's breach of the settlement agreement there's no provision in this settlement agreement that says all claims arising out of

[00:30:38] Speaker 01:
This settlement agreement, including allegations of breach of a settlement agreement, are hereby waived or shall be.

[00:30:46] Speaker 01:
There's no provision for handling breaches of the settlement agreement.

[00:30:51] Speaker 01:
The DC Circuit decided that you couldn't go back to the DDC that issued the settlement agreement because it said very specifically when you could go back.

[00:31:04] Speaker 01:
But it did not say that if the government has breached it,

[00:31:09] Speaker 01:
there's no other remedy, and the settlement agreement doesn't waive remedies for that.

[00:31:16] Speaker 03:
Your Honor, the settlement agreement, in the settlement agreement, every claimant agreed to release the government from any liability, and the government did not concede any liability for the underlying discrimination claims.

[00:31:30] Speaker 04:
The process that you're envisioning... Okay, let's assume we reject that.

[00:31:33] Speaker 04:
Okay, you lose.

[00:31:34] Speaker 04:
We say

[00:31:35] Speaker 04:
at the end of the day, maybe there needs to be a hearing in the claims court.

[00:31:39] Speaker 04:
But we say there's no bar to breach the settlement agreement and the government breached the settlement agreement by not allowing the collection of information from these declarants and the submission of information to the claims administrator.

[00:31:55] Speaker 04:
At that point, you have a choice.

[00:31:57] Speaker 04:
The choice is either the claims court steps into the shoes of the claims administrator and decides what the claims administrator would have done

[00:32:05] Speaker 04:
Or you reconstitute the claims process.

[00:32:09] Speaker 04:
Which of those two more appeals to you?

[00:32:17] Speaker 04:
You want to think about it?

[00:32:19] Speaker 03:
No, you're right.

[00:32:21] Speaker 03:
I don't think you could reconstitute this claims process because it's concluded.

[00:32:25] Speaker 03:
The court would have to make an assessment on its own.

[00:32:28] Speaker 03:
However, again,

[00:32:33] Speaker 03:
I think that would just be blowing apart the terms of the settlement agreement.

[00:32:36] Speaker 02:
So you're telling us there's absolutely no relief.

[00:32:38] Speaker 02:
If you accept Judge Dyke's predicate, which is we find there was a breach of the settlement agreement, and you're saying too bad because this program has already expired because this litigation has taken so long?

[00:32:53] Speaker 02:
There has to be some relief, right?

[00:32:55] Speaker 02:
I mean, you would not say, because if we conclude there's a breach of the settlement agreement, you would not, the government would not say he's automatically therefore entitled to this $200,000 award, right?

[00:33:07] Speaker 03:
No, no, certainly not.

[00:33:09] Speaker 02:
Because the government would say that it's up to a claims administrator or someone to make that determination.

[00:33:16] Speaker 02:
So if that person doesn't exist, what are the options?

[00:33:20] Speaker 02:
It can't be that the only option is to say, too bad, too late, we've disbanded this claims administrator proceeding, and so you can't possibly get any relief because of that.

[00:33:33] Speaker 03:
I think the court would have to require some kind of testimony from the claims administrator and get the claims administrator to

[00:33:41] Speaker 03:
kind of issue an advisory opinion as to what its assessment would be.

[00:33:44] Speaker 02:
But to agree, the answer cannot be that if we were to find the first steps, that he gets no relief simply because there's no claim.

[00:33:51] Speaker 02:
The claims administration process is terminated.

[00:33:54] Speaker 03:
Well, I think you have to get to the first step.

[00:33:55] Speaker 03:
Did this constitute a breach in the first place?

[00:33:58] Speaker 02:
Yeah, I'm making assumptions when I'm asking you this question.

[00:34:00] Speaker 03:
Assuming that there was that constituted a breach, that certainly is one possibility.

[00:34:08] Speaker 03:
for the trial court to do.

[00:34:11] Speaker 03:
I don't know whether it can do that within the confines of this process.

[00:34:14] Speaker 02:
But you would agree that one possibility is not to say, too late, no more claims processes in existence, and therefore, you can't get your money, even though, except the hypothetical that we've concluded there was a breach of the settlement agreement.

[00:34:31] Speaker 03:
I think there would have to be some evidence in the record of what the amount that the claims administrator, the board, in the first instance would have granted.

[00:34:39] Speaker 02:
And how does one go about getting that?

[00:34:42] Speaker 03:
The only thing I can think of is to do just that, to call the administrator in and seek his testimony.

[00:34:49] Speaker 02:
But you're still not answering my question, which is it's not the government's position.

[00:34:54] Speaker 02:
Is it that because the claims administration process is no longer in effect, he should be foreclosed from getting any relief?

[00:35:01] Speaker 03:
That is not the government.

[00:35:03] Speaker 03:
That is not the government's position.

[00:35:05] Speaker 02:
So we just have to work together.

[00:35:06] Speaker 02:
Folks would have to work together and figure out what the best way to proceed.

[00:35:10] Speaker 03:
Assuming that the breach was established, which we don't.

[00:35:14] Speaker 03:
That's a big assumption.

[00:35:15] Speaker 02:
I understand that.

[00:35:17] Speaker 03:
I understand that.

[00:35:20] Speaker 03:
So if there's no further questions.

[00:35:22] Speaker 04:
Of course, there is another alternative, is that the government could settle and save everybody, a lot of them.

[00:35:32] Speaker 04:
future litigation?

[00:35:34] Speaker 03:
If the government saw, yes, the government, that is always a possibility that is always under consideration.

[00:35:41] Speaker 03:
Yes, Your Honor.

[00:35:41] Speaker 02:
Are there other claims similar to this that are in the pipeline?

[00:35:45] Speaker 03:
I'm not aware of any other claims in the Court of Federal Claims similar to this.

[00:35:48] Speaker 03:
However, there were numerous challenges made in the district court by similarly situated plaintiffs who did not receive the relief that they requested or thought that they were entitled to as part of the claims process.

[00:36:01] Speaker 02:
All of those cases.

[00:36:03] Speaker 02:
On the basis of the fact that their witnesses were foreclosed from testifying because they were federal employees?

[00:36:10] Speaker 03:
I don't know if it was specifically on that basis, Your Honor, no.

[00:36:14] Speaker 03:
I just know that there were lots of challenges that were brought up and all of them were essentially dismissed by the district court.

[00:36:23] Speaker 03:
So if there's nothing further, we ask that the decision be affirmed.

[00:36:25] Speaker 03:
Thank you, Your Honor.

[00:36:32] Speaker 06:
just briefly to return to where I left off of how the courts adjust themselves to kind of find this respectful law, the law respecting the people and their rights.

[00:36:46] Speaker 06:
And I think that one of the reasons why court of appeals will harmonize a law on a point like this is so people and their lawyers know what to do.

[00:36:57] Speaker 06:
And so when I was in the position with Mr. LeBatt, I had the experience of

[00:37:02] Speaker 06:
being involved with the government a lot, I knew that the government instructing a witness not to testify was wrong because I had done other cases.

[00:37:10] Speaker 02:
Can I interrupt your line of thought to just ask you a question before your time runs out, which is, on the point we were discussing earlier about what these, in the absence of the government's breach, if we were to conclude there was a breach, what more these employees would have done.

[00:37:25] Speaker 02:
And Judge Toronto certainly pointed to one paragraph in the settlement.

[00:37:29] Speaker 02:
The other two paragraphs in their complaint, I'm sorry,

[00:37:32] Speaker 02:
The other two paragraphs in the complaint that I'm focused on do specifically allege what the nature of the interference was.

[00:37:41] Speaker 02:
And they say because they prevented Hawkins and then the other gentlemen from testifying and providing evidence on behalf of LaBotte's claim.

[00:37:52] Speaker 02:
Did that go to helping and adding to and modifying the declaration, or is there something else that the government did?

[00:38:01] Speaker 02:
to preclude their participation?

[00:38:04] Speaker 06:
Well, obviously, it would have gone to more detail with respect to the instances.

[00:38:10] Speaker 06:
As we listed, there were a lot of witnesses to these events, but they were a long time ago, 20, 30 years ago.

[00:38:14] Speaker 06:
So if I could have communicated with them more, then it would have been more detailed with respect to the discrimination, with respect to the American Indian farmers versus the white farmers.

[00:38:23] Speaker 06:
which was what the... No, no, I'm talking about these two witnesses, though.

[00:38:27] Speaker 02:
These paragraphs are referring specifically to Mr. Lake and Mr. Hawkins.

[00:38:32] Speaker 06:
Yes, they would have provided more information as I alleged, because they're longtime friends of Mr. Labatt.

[00:38:39] Speaker 02:
More information in the declaration before they signed it?

[00:38:43] Speaker 06:
They would have provided more information before they signed it, because they were witnesses.

[00:38:47] Speaker 06:
And so this was very public.

[00:38:49] Speaker 06:
I just want to just get a nub of it.

[00:38:51] Speaker 06:
You know, basically the U.S.

[00:38:52] Speaker 06:
Department of Agriculture, this federal program, was saying that they'd only loan to people who own their land and feed.

[00:38:59] Speaker 06:
So that was public, right?

[00:39:00] Speaker 06:
And that meant that Indians couldn't get the loans.

[00:39:03] Speaker 06:
So this wasn't like hidden discrimination.

[00:39:06] Speaker 06:
This was public discrimination, and everyone knew about it, and American Indians weren't happy because American Indians were not getting business loans to keep their farms going, and white farmers weren't.

[00:39:17] Speaker 02:
Thank you.