Opinion
No. 06-924 L
12-02-2011
ROSEBUD SIOUX TRIBE, Plaintiff, v. THE UNITED STATES, Defendant.
Brian J. Leinbach, Los Angeles, CA, for plaintiff. Romney S. Philpott, United States Department of Justice, Washington, DC, with whom was Ignacia S. Moreno, Assistant Attorney General, for defendant. Anthony P. Hoang, United States Department of Justice, Environment and Natural Resources Division; Dondrae Maiden, Office of the Solicitor, United States Department of the Interior; and Rebecca Saltiel, Office of the Chief Counsel, Financial Management Service, United States Department of the Treasury, Washington, DC, of counsel.
Subject matter jurisdiction; 28 U.S.C. §
1500 (2006); Tohono O'Odham Nation,
131 S. Ct. 1723 (2011); RCFC 12(b)(1);
Indian trust claims; substantially the
same operative facts.
Brian J. Leinbach, Los Angeles, CA, for plaintiff.
Romney S. Philpott, United States Department of Justice, Washington, DC, with whom was Ignacia S. Moreno, Assistant Attorney General, for defendant. Anthony P. Hoang, United States Department of Justice, Environment and Natural Resources Division; Dondrae Maiden, Office of the Solicitor, United States Department of the Interior; and Rebecca Saltiel, Office of the Chief Counsel, Financial Management Service, United States Department of the Treasury, Washington, DC, of counsel.
OPINION AND ORDER
Merow, Senior Judge.
By statute this court lacks jurisdiction over any suit "for or in respect to" claims that are pending in another court. Defendant's Motion to Dismiss contends that plaintiff's previously-filed district court complaint shares substantially the same operative facts as this, the second-filed action. For the following reasons, because plaintiff's district court litigation was pending at the time the instant matter was filed, and was "for or in respect to the same claim," applying 28 U.S.C. § 1500 (2006) as recently clarified by United States v. Tohono O'Odham Nation, 131 S. Ct. 1723 (2011), defendant's Motion is GRANTED.
Plaintiff, Rosebud Sioux Tribe ("Rosebud") filed this action on December 28, 2006, alleging defendant had not properly managed its tribal trust assets and seeking damages for breach of trust. Nearly one year earlier, on December 30, 2005, Rosebud filed suit in the United States District Court for the District of Columbia against several federal officials. Rosebud Sioux Tribe v. Norton,No. 1:05CV02492 (D.D.C.). Rosebud's Amended Complaint in the district court filed on July 17, 2006, ECF No. 12, alleges the United States mismanaged tribal funds, land, natural resources and other assets and failed to render adequate accountings. Judicial review of management and record-keeping was requested, as well as an accounting and reconciliation of trust funds and assets.
Original named defendants were Gale Norton, Secretary ofthe Interior; Ross O. Swimmer, Special Trustee, Office of Special Trustee for American Indians, Department of the Interior; and John W. Snow, Secretary of the Treasury.
Pending before this court is defendant's Motion to Dismiss for Lack of Jurisdiction, ECF No. 36, filed June 13, 2011. Rosebud's Opposition, ECF No. 37, was filed on July 14, 2011. Defendant's Reply, ECF No. 40, was filed on August 1, 2011. Defendant's Notices of Supplemental Legal Authority, ECF Nos. 41, 42, 43 and 44 were filed on October 13 and 28 and November 7 and 29, 2011, respectively. Legal Standards
A. Jurisdiction
Litigation against the United States requires an explicit waiver of sovereign immunity. "The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969).
Whether the court has jurisdiction is a threshold requirement. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Rosebud has the burden of establishing subject-matter jurisdiction. Keener v. United States, 551 F.3d 1358, 1361 (Fed. Cir. 2009) (citing Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)). Absence of subject matter jurisdiction may be raised at any time, by any party or the court sua sponte, even initially on appeal. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) ("The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."); Diggs v. Dep't of Housing & Urban Dev., __ F.3d __, 2011 WL 5153618, at * 2, *4 (Fed. Cir. Nov. 1, 2011); see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh, 546 U.S. at 506)). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." RCFC 12(h)(3).
B. 28 U.S.C. § 1500
28 U.S.C. § 1500 precludes this court from exercising jurisdiction over a claim if at the time of filing the plaintiff "has pending in any other court" another suit against the United States (or against individuals acting under the authority of the United States) "for or in respect to" that claim.
The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
In Tohono, the Supreme Court recognized that § 1500 "effects a significant jurisdictional limitation" on the United States Court of Federal Claims ("CFC"), designed to "save the Government from burdens of redundant litigation." 131 S. Ct. at 1729-30. The Supreme Court explained that for the purposes of § 1500, "[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit." Id. at 1731. Procedural History
Rosebud's Complaint in the district court was filed on December 30, 2005, and the Amended Complaint was filed on July 17, 2006. Five months later, on December 28, 2006, Rosebud filed this CFC action, ECF No. 1. The Parties' Joint Motion for Temporary Stay of Litigation was granted on February 21, 2007. (Order, ECF No. 9.) The stay was renewed nine times at the joint request of the parties. (ECF Nos. 12, 20, 22, 26, 28, 30, 32, 35 and 39.)
When determining whether a claim is "pending" for purposes of section 1500, this court follows the longstanding principle that "the jurisdiction of the Court depends upon the state of things at the time of the action brought." Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (citations omitted). See Trusted Integration v. United States, 659 F.3d.1159, 1166 n.2. (Fed. Cir. 2011). Because Rosebud's Amended Complaint was pending in the district court at the time that Rosebud filed suit in this court, comparison is to the Amended Complaint.
The Joint Motion requested a temporary stay in part to pursue settlement negotiations. Recitations included a recognition that the two actions were similar.
Plaintiff filed this case on December 28, 2006. See Complaint, Doc. 1. Additionally, Plaintiff filed a companion case for declaratory and injunctive relief in the United States District Court for the District of Columbia, Rosebud Sioux Tribe v. Kempthorne, No. 1:05-cv-02492-JR (D.D.C.), on December 30, 2005. Plaintiff's allegations in both cases relate to the trust accounting and trust management duties and responsibilities allegedly owed by Defendant to Plaintiff.(ECF No. 8 at 1.)
Defendant's Motion to Dismiss, ECF No. 36, asserts that Tohono dictates dismissal because Rosebud filed its CFC Complaint for damages for alleged breaches of fiduciary duty and mismanagement of trust assets while its district court case, based on substantially similar operative facts, was pending. Under § 1500, the CFC case must be dismissed.
The Motion cites RCFC 12(b)(1), 12(h)(3) and § 1500.
Rosebud's initial objection in its Opposition, ECF No. 37, that defendant's Motion to Dismiss violates the Stay of Litigation is incorrect. As defendant observes, the parties' latest request for a stay, ECF No. 38, filed July 20, 2011 and subsequently granted, ECF No. 39, on July 22, 2011, extended the stay "[t]hrough January 25, 2012, except for the limited task of briefing and determining whether the Court has subject-matter jurisdiction over this case." Moreover, in the Parties' Joint Status Report filed July 20, 2011 in the district court action (the latest in a series of seven reporting on related litigation in the CFC, settlement attempts and other matters), the propriety of the consideration of the subject matter issues presented here was acknowledged:
Notwithstanding the briefing of the Section 1500 issue in the cases pending in the CFC, the parties have jointly requested that the CFC maintain a temporary stay of litigation in each of those cases, except for the limited task of having the Parties complete briefing on the application of Section 1500 so that the CFC can determine whether it has subject-matter jurisdiction over each case.(D.D.C., Parties' Joint Status Report 5, ECF No. 64.) As for the substance of the Motion to Dismiss, Rosebud denies there is a substantial similarity in operative facts. Discussion
The CFC's jurisdiction under the Indian Tucker Act, 28 U.S.C. § 1505, comprises a limited waiver of sovereign immunity which grants Native American tribes the right to bring suit in this court. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) ("[T]he Indian Tucker Act[] confers a . . . waiver for Indian tribal claims that 'otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe,' § 1505."). The Tucker Act grants the CFC jurisdiction over "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). Neither the Tucker Act nor the Indian Tucker Act grants any substantive rights; a plaintiff must establish an independent substantive right to money damages from the United States in order for the case to proceed. See generally United States v. Mitchell, 463 U.S. 206 (1983). In Indian trust cases, the substantive right must be found in statutes from which a trust relationship can be inferred and from which a money remedy for breach can reasonably be implied. Id. at 217-18.
Regardless of substantive causes of action, § 1500, when applicable, divests this court of jurisdiction, and as recently construed in Tohono, requires dismissal. The plaintiff in Tohono filed a district court action against federal officials alleging a breach of fiduciary duty with respect to the management of tribal trust assets and sought equitable relief including an accounting. 131 S. Ct. at 1727. One day later, the plaintiff filed a complaint in the CFC, asserting nearly identical breaches of fiduciary duties based upon the same tribal assets and sources of fiduciary obligations, but seeking money damages. Id. The CFC dismissed the case before it, holding that "Section 1500 divests this court of jurisdiction over plaintiff's claim because it arises from the same operative facts and seeks the same relief as the claim in district court."Tohono O'odham Nation v. United States, 79 Fed. Cl. 645, 659 (2007). The United States Court of Appeals for the Federal Circuit reversed, holding that § 1500 is applicable only if the claims in both forums "arise from the same operative facts" and "seek the same relief." Tohono O'Odham Nation v. United States, 559 F.3d 1284, 1288 (Fed. Cir. 2009) (quoting Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc) ("For the Court of Federal Claims to be precluded from hearing a claim under §1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief."). As the relief sought in the CFC action (damages) differed from that sought in the district court (an accounting), the Federal Circuit concluded § 1500 did not apply to deprive the CFC of jurisdiction.
"[A]lthough a pre-liability, stand-alone general accounting is unavailable in this court, after a presentation of sufficient evidence, an accounting is unavoidable here and will be coextensive with all the plaintiff's claims of breach. The accounting is necessary to establish the quantum of damages. Independent, therefore, of the monetary relief aspects of the two complaints, there is overlap in the request for an accounting. Both actions, in sum, seek a restatement of accounts, restitution, and disgorgement and both will require an accounting. There is plainly substantial overlap in the operative facts as well as in the relief requested. That being the case, unfortunately for plaintiff, section 1500 is a bar.
The Supreme Court reversed the Federal Circuit's Opinion in United States v. Tohono O'Odham Nation, 131 S. Ct. 1723 (2011). The Court observed that § 1500 "effects a significant jurisdictional limitation" on the CFC, to "save the Government from burdens of redundant litigation." Id. at 1729-30. Tohono held that any difference in requested relief was not determinative of whether two suits are "for or in respect to" the same claim within the meaning of § 1500. "The rule is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents." Tohono, 131 S. Ct. at 1727. The Court explained that "[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit." Id. at 1731. The Court held that the statute's use of the phrase "'in respect to' does not resolve all doubt as to the scope of the jurisdictional bar, but 'it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.' It suggests a broad prohibition, regardless of whether 'claim' carries a special or limited meaning."Id. at 1728 (quoting Keene, 508 U.S. at 213). The Supreme Court concluded, as the CFC had, that the plaintiff's two suits had "substantial overlap in operative facts" based upon the identity of the trust assets and the breaches of fiduciary duty alleged, and commented, "[i]ndeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect." Id. at 1731. Thus the CFC lacked jurisdiction over the claim until the district court case was either dismissed or "complete[d]" at which time the plaintiff would be "free to file suit again in the CFC if the statute of limitations is no bar." Id.See also Yankton Sioux Tribe v. United States, No. 2009-5027, 2011 WL 3873846, at *1 (Fed. Cir. Sept. 2, 2011) (unpublished disposition) ("[T]he Court of Federal Claims lacks jurisdiction if a suit based on substantially the same operative facts is pending in a district court regardless of whether the complaints seek overlapping relief."), aff'g Yankton Sioux Tribe v. United States, 84 Fed. Cl. 225 (2008).
The Supreme Court noted that any hardship its ruling would cause was "far from clear" because although the tribe's CFC case would have to be dismissed, an Indian tribe in the plaintiff's position could always bring a suit in the CFC after resolution of the district court case because the statute of limitations on Indian trust mismanagement claims would only begin to run once the government provided an "appropriate accounting." Tohono, 131 S. Ct. at 1731. Recognizing possible harsh results, the Court commented:
Even were some hardship to be shown, considerations of policy divorced from the statute's text and purpose could not override its meaning. Although Congress has permitted claims against the United States for monetary relief in the CFC, that relief is available by grace and not by right. . . . If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are dissatisfied, they are free to direct their complaints to Congress.
The Supreme Court explained that in the text of § 1500 the words "claim" and "cause of action" are used synonymously. 131 S. Ct. at 1728 (quoting Keene, 508 U.S. at 210). Because "cause of action" refers "simply to facts without regard to judicial remedies," the bar of §1500 applies to claims arising from the same operative facts. Id. at 1729. Precluding jurisdiction based on substantial factual overlap is "consistent with the doctrine of claim preclusion, or res judicata, which bars 'repetitious suits involving the same cause of action.'" Id. at 1730 (quoting Commissioner v. Sunnen, 333 U.S. 591, 597 (1948)). See also Trusted Integration v. United States, 659 F.3d. 1159, 1164 (Fed. Cir. 2011) (noting that the Supreme Court in Tohono "observed . . . that because § 1500 embodies principles of res judicata, determining whether two suits arise from substantially the same operative facts for purposes of that provision can be informed by how claims are defined for res judicata purposes.").
In defense of its filing sequence here, Rosebud explains that until the Supreme Court's recent Tohono decision, it was well-settled that the two actions do not present the same "claim" unless they both (1) arise from the same operative facts and (2) seek the same relief. See Loveladies, 27 F.3d at 1551-52; accord Harbuck v. United States, 378 F.3d 1324, 1328 (Fed. Cir. 2004). Accordingly, the two suits were relief-driven - each seeking a separate remedy - separate paths sanctioned by Loveladies. In any event, however, Rosebud argues its two cases are distinguishable from those in Tohono.
Defendant maintains that Rosebud's district court action and the instant action are based on substantially the same operative facts, thus precluding jurisdiction in this court under Tohono. In its Motion to Dismiss, defendant reserved the right to contest the jurisdiction of the district court. (Def.'s Mot. Dismiss 9, n.8, ECF No. 36.) Perhaps anticipating possible statute of limitations issues should this CFC case be dismissed followed by the dismissal of the district court litigation, Rosebud's CFC Complaint includes a section titled "Equitable Tolling/Delayed Accrual" with ten paragraphs identifying the statutory mandates for audit, reconciliation and an accounting of trust funds and requiring defendant to certify through an independent party, the results of the reconciliation of tribal trust funds, as well as legislation providing that "'the statute of limitations shall not commence to run on any claim concerning losses to or mismanagement of trust funds until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.'" (CFC Compl. ¶ 32 (quoting Pub. L. 101-512).) It is asserted that a report subsequently performed by the accounting firm of Arthur Andersen was inadequate and incomplete and fraudulently conceals fiduciary breaches, and in particular fails to attempt to audit prior to fiscal year 1988. Because of these deficiencies, it is claimed that the full extent of losses and damages could not be ascertained. For that reason Rosebud asserts, it commenced the district court action for an accounting.
Rosebud does not dispute that both suits allege breaches of trust by the United States, although the sources of that trust are the same; Rosebud does not contend there is substantial disparity in the trust assets underlying both actions—monies, lands, and natural resources. The differences, it is contended, are that the breaches alleged in the district court related to the government's duty to maintain records of account and to provide Rosebud with a full and complete audit or accounting with respect to all trust assets. In contrast, the CFC suit alleges breaches of trust in connection with specific trust transactions - e.g, leasing of real estate at less than fair market value, failure to invest funds prudently, although cautioning that lack of adequate accounting has prevented discovery of additional transactions that may have involved fiduciary lapses.
On December 28, 2006, Rosebud filed a complaint in the CFC alleging breach of fiduciary duty against the USA. The Tribe seeks monetary damages, with interest, due it resulting from the USA's past and present mismanagement of the Tribe's monetary and non-monetary trust assets. The CFC complaint delineates the duties owed by USA which include those duties set forth in 25 C.F.R. §§ 115.01 - 115.1001 and 25 U.S.C. § 177 to administer the trust assets with the greatest skill and care which include the duty to ensure that the Tribe's trust property and funds are(Pl.'s Opp'n Mot. Dismiss 4-5, ECF No. 37.)
protected, preserved and managed as to produce the highest and best use and monetary return (CFC Comp. ¶¶ 16-30). In the CFC, Rosebud seeks to analyze specific trust transactions to establish that the USA's management fell below the applicable standard of care for a prudent trustee . . . .
A year earlier, on December 30, 2005, Rosebud had filed a separate and different complaint in the District Court, Case No. 1:05-CV-2492-JR, alleging the government breached its narrowly defined duty to provide a historical accounting of trust activity. As stated earlier, the complaint was amended July 13, 2006. At paragraph 22 of the amended District Court complaint, it is stated that by the Act of December 22, 1987, pub. L. No. 100-202, 101 Stat. 1329, Congress imposed two requirements on defendant: 1) that they audit and reconcile tribal trust funds, and 2) that they provide an accounting of such funds. See also paragraphs 16 and 18 which generally describe the duty of defendant to provide an accurate, complete and timely accounting of trust activity.
Rosebud also insists that the fiduciary duties on which each case is based are independent of each other, and that the proof and trial evidence necessary to prevail in the two cases are different. The trial in the district court will be dominated by accounting issues presented by forensic experts on whether the government failed to provide an accounting that comports with fiduciary standards. In contrast, the trial in the CFC will be dominated by evidence relating to the handling of particular trust transactions and assets such as whether specific contracts for the sale of natural resources provided Rosebud with market value; whether leases required fair rentals; whether trust funds received the highest interest available, etc. Expert testimony as to the market value of timber, gravel, land leases, rights of way, etc. will be tendered concerning whether defendant breached its fiduciary duties to Rosebud and if so, the monetary or consequential damages suffered.
That certain facts may be needed to meet elements of proof of a legal theory articulated in one complaint but not the other does not prevent a finding that two complaints constitute the same claim for purposes of § 1500. As the Federal Circuit recently explained in Trusted Integration:
since Keene, it has been clear that the legal theories asserted before the district court and the CFC are irrelevant to whether the claims arise from substantially the same operative facts. See Keene Corp., 508 U.S. at 212, 113 S. Ct. 2035 (noting that § 1500 bars a subsequent suit even if 'the two actions were based on different legal659 F.3d at 1166 (alteration in original) (footnote omitted).
theories. . . . '). Because the same operative facts gave rise to both Count I of the CFC complaint and at least one of the counts in the district court complaint, the CFC correctly concluded that it lacked subject matter jurisdiction over Count I under § 1500.
While the respective complaints may detail different fiduciary failures, the underlying source and scope of the trust are the same. It is this substantial factual overlap rather than any difference in remedies, breaches, or requested relief that triggers § 1500. See Tohono, 131 S. Ct. at 1727 (answering affirmatively the inquiry "whether a common factual basis . . . suffices to bar jurisdiction under § 1500"). Analogous to cited res judicata principles, as well as proscriptions against claim splitting, these Indian trust cases simply do not lend themselves to differentiations sufficient to preclude application of § 1500. "The nature of Indian trust cases and the government's trust responsibility owed to Indian tribes does not lend itself to a simple delineation or separation of operative facts as they pertain to the government's various duties owed to Indian tribes." Ak-Chin Indian Cmty. v. United States, 80 Fed. Cl. 305, 320 (2008).
The assets and fiduciary duties and factual underpinnings in Rosebud's actions are the same. Rosebud has not identified sufficient operative factual differences to distinguish its cases from those in Tohono.While the breaches may differ, the trust relationship is the same. Despite some disparate requested relief, supporting legal theories and predicted difference in evidentiary proof, side-by-side parsing of the operative facts in the two Complaints in Appendix hereto, confirms substantial shared operative facts. That the accounting sought in the district court suit (required incident to fiduciary responsibilities as well as by statute) may be a predicate for at least proof of damages or identification of additional breaches in the CFC action, does not overcome the substantial shared operative facts.
In Tohono, the district court Complaint was an action to redress breaches of trust in the management and accounting of trust assets including funds and lands, and to compel an accounting of all trust assets. The history, source and nature of trust responsibilities was outlined, as were trust assets (including land and natural resources) and funds and Congressional actions to rectify federal breaches and failures in this regard) including the production of reports by government contractor Arthur Andersen, LLP asserted to be deficient such as to preclude the commencement of the statute of limitations). Count One sought a declaration that (1) the Arthur Andersen report was not adequate; (2) defendants failed to provide plaintiff with an adequate accounting; and (3) delineated the fiduciary duties and breach thereof. In Count Two, plaintiff sought injunctive relief requiring adequate accountings, appropriate equitable relief (e.g., disgorgement, equitable restitution, or an injunction directing action against third parties), and direction to conform to fiduciary responsibilities and trust breaches.
The CFC Complaint was an action for money damages for breaches of trust for defendant's mismanagement of plaintiff's trust property. The history, source and nature of the land and minerals estates on plaintiff's reservation, as well as the creation of trust funds derived therefrom, is outlined as are the sources of defendant's trust obligations and duties, including proper trust administration and accountings. The CFC Complaint asserted a variety of breaches of trust in the administration of trust assets and accounting therefore. Count One sought money damages for breach of fiduciary duty in connection with plaintiff's mineral estates, alleging failure to account and leasing for less than fair market value. Count Two sought monetary damages for similar breaches incident to plaintiff's non-mineral estates; Count Three, for management of judgment funds; and Count Four, for trust funds. Relief sought included damages.
The Supreme Court concluded there was a substantial overlap in operative facts in these two suits.
The two actions both allege that the United States holds the same assets in trust for the Nation's benefit. They describe almost identical breaches of fiduciary duty—that the United States engaged in self-dealing and imprudent investment, and failed to provide an accurate accounting of the assets held in trust, for example.
Other CFC cases have reached the same conclusion in similar cases. See Yankton Sioux Tribe v. United States, 84 Fed. Cl. 225 (2008) (holding, despite the plaintiff's contention that the operative facts were distinct in each suit, the plaintiff's federal district court and CFC suits presented substantially the same operative facts and dismissing under section 1500), aff'd, No. 2009-5027, 2011 WL 3873846 (Fed. Cir. Sept. 2, 2011) (unpublished disposition); Lower Brule Sioux Tribe v. United States, No. 06-9226, slip op. (Fed. Cl. Dec. 1, 2011); Prairie Band of Potawatomi Indians v. United States, No. 06-921L, 2011 WL 5925328 (Fed. Cl. Nov. 29, 2011); Coeur d'Alene Tribe v. United States, No. 06-940L, 2011 WL 5822177 (Fed. Cl. Nov. 18, 2011); Iowa Tribe of Kan. and Neb. v. United States, No. 06-920L, 2011 WL 5600535 (Fed. Cl. Nov. 17, 2011); Oglala Sioux Tribe v. United States, No. 05-1378L, slip op. (Fed. Cl. Oct. 27, 2011); Winnebago Tribe of Neb. v. United States, No. 06-913L, 2011 WL 5042385 (Fed. Cl. Oct. 25, 2011); Omaha Tribe of Neb. v. United States, No. 06-911L, 2011 WL 4793244 (Fed. Cl. Oct. 7, 2011); Cheyenne River Sioux Tribe v. United States, No. 06-915L, slip op. (Fed. Cl. Oct. 7, 2011) (unpublished order); Stillaguamish Tribe of Indians v. United States, No. 06-916L, slip op. (Fed. Cl. Oct. 7, 2011) (unpublished order); Red Cliff Band of Lake Superior Chippewa Indians v. United States, No. 06-923L, slip op. (Fed. Cl. Sept. 19, 2011) (unpublished order); E. Shawnee Tribe of Okla. v. United States, 82 Fed. Cl. 322 (2008), rev'd, 582 F.3d 1306 (Fed. Cir. 2009), vacated, 131 S. Ct. 2872 (2011); Ak-Chin Indian Cmty. v. United States, 80 Fed. Cl. 305 (2008). See also Stockton E. Water Dist. v. United States, __ Fed. Cl. __, 2011 WL 5154463, at *7 (Oct. 31, 2011) (applying Tohono to taking and due process claims).
Whether in connection with a request for an accounting (or a better accounting) or a determination of compensatory damages, in both cases the court would be presented with accounting and other record evidence together with testimony thereon, in considering issues in connection with the government's management and administration of tribal assets and funds. The nature of Indian trust cases and the government's trust responsibility does not substantially segment into distinct operative facts or trust duties, regardless of respective remedies sought.
Unlike regulatory disputes, suits brought by Indian tribes, claiming a breach of trust, do not neatly separate between the exclusively injunctive relief typical in a district court APA review of agency action on the one hand, and, on the other hand, a suit here for money damages flowing from the consequences of that agency action. In substance, the action for breach of trust in this court is an equitable proceeding that produces a monetary remedy. Thus while the court has jurisdiction because of the demand for money, the process for getting to that relief is fundamentally equitable, meaning that there is potential overlap of both the accounting and money aspects of the two complaints.Tohono, 79 Fed. Cl. at 657.
Moreover, it is not the case that jurisdiction for an equitable accounting in all instances rests solely with district courts. Instead, "'the court has the power to require an accounting in aid of its jurisdiction to render a money judgment on that claim.'" Id. at 653 (citing Klamath & Modoc Tribes v. United States, 174 Ct. Cl. 483, 490-91 (1966)). As the court observed in the original Tohono opinion, assuming the existence of a trust as well as a breach, then "[t]he United States, as trustee, would have to meet plaintiff's prima facie case of breach with a full accounting for its conduct. In short, assuming this action were to proceed in this court, and plaintiff satisfied its burdens of proof, what would ensue would amount to an accounting, albeit in aid of judgment." Id. at 653. While the scope of available accounting relief in the CFC is not before the court, it is sufficient to note the likelihood of substantial evidentiary overlap in this regard. See Tohono, 131 S. Ct. 1735 n.5 (Sotomayor, J., concurring).
Indeed, despite its contention that the district court suit will be dominated by accounting issues, Rosebud also requests declaratory and mandatory injunctive relief to compel the government to manage tribal assets and trust funds in "full compliance with all applicable law and with their duties as the Plaintiff's guardian and trustee." (D.D.C. Compl. ¶ 36, ECF No. 12.)
Accordingly, for the foregoing reasons, the court finds that Rosebud's district court complaint and its subsequently-filed CFC complaint involve substantially the same operative facts for purposes of the § 1500 jurisdictional bar.
As the court in Winnebago Tribe of Nebraska observed, the circumstances presented here are distinguishable from those recently addressed by the Federal Circuit in Trusted Integration:
In that case, the plaintiff alleged in the Court of Federal Claims that the United States Department of Justice breached a license agreement, while in federal district court it alleged that the United States Department of Justice breached an agreement to act as a joint enterprise. Id. at *7-9. The Federal Circuit held that the plaintiff was not "simply repackaging the same conduct into two distinct legal theories," but instead had "asserted two distinct claims, that involve[d] distinct agreements, whose breaches [gave] rise to distinct damages, and which require[d] distinct proofs." Id. at *10 .... Unlike the circumstances presented in Trusted Integration, Inc., however, resolution of the Tribe's claims in this court would require consideration of the facts alleged and conduct described in the Tribe's federal district court complaint. In other words, the Tribe has merely taken its allegations of the United States' conduct from its suit in federal district court and repackaged them in its Court of Federal Claims suit.2011 WL 5042385, at *5 n.3 (alterations in original).
CONCLUSION
Accordingly, for the above-stated reasons, defendant's Motion to Dismiss for Lack of Jurisdiction, ECF No. 36, filed June 13, 2011, is GRANTED. Rosebud's Complaint, ECF No. 1, is dismissed for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1500. The Clerk is directed to enter judgment accordingly.
It is so ORDERED.
James F. Merow
Senior Judge
APPENDIX A
INTRODUCTION, PARTIES, JURISDICTION, AND STATEMENT OF FACTS
+-----------------------------------------------------------------------------+ ¦ ¦COURT OF FEDERAL CLAIMS ¦ ¦DISTRICT COURT AMENDED COMPLAINT (ECF No. 12) ¦ ¦ ¦ ¦COMPLAINT (ECF No. 1) ¦ +-----------------------------------------------+-----------------------------¦ ¦ ¦"This is an action for money ¦ ¦ ¦damages, with interest, ¦ ¦ ¦against the Defendant, United¦ ¦ ¦States of America. This cases¦ ¦ ¦arises out of Defendant's ¦ ¦ ¦breaches and continuing ¦ ¦ ¦breaches of its ¦ ¦"[The action is] for an accounting and a ¦constitutional, statutory, ¦ ¦reconciliation of [Rosebud's] trust funds, for ¦regulatory, treaty, common ¦ ¦equitable relief, and for such other relief as ¦law and other legal, ¦ ¦the Court deems appropriate." ¦accounting, fiduciary, ¦ ¦ ¦administrative and management¦ ¦(D.D.C. Comp. ¶ 1.) ¦duties owed to [Rosebud] to ¦ ¦ ¦generate, invest and manage ¦ ¦ ¦[Rosebud's] tribal trust ¦ ¦ ¦assets and property in the ¦ ¦ ¦manner prescribed by ¦ ¦ ¦applicable law." ¦ ¦ ¦ ¦ ¦ ¦(CFC Compl. ¶ 1.) ¦ +-----------------------------------------------+-----------------------------¦ ¦ ¦"[Rosebud] is a federally ¦ ¦ ¦recognized Indian tribe, ¦ ¦ ¦under the protection of the ¦ ¦ ¦United States, . as a ¦ ¦ ¦sovereign Indian tribe with ¦ ¦"[Rosebud] is a federally recognized Indian ¦legal rights and ¦ ¦tribe, recognized by the United States as a ¦responsibilities. [Rosebud] ¦ ¦sovereign Indian tribe with legal rights and ¦has a governing body duly ¦ ¦responsibilities. [Rosebud] has a governing ¦recognized by the Secretary ¦ ¦body duly recognized by the Secretary of the ¦of the Interior. [Rosebud] is¦ ¦Interior. [Rosebud] is also recognized by the ¦also recognized by the United¦ ¦United State[s] as a tribe which is eligible ¦States as a Tribe which is ¦ ¦for the special programs and services provided ¦eligible for the special ¦ ¦by the United States to Indians because of ¦programs and services ¦ ¦their status as Indians, and because of ¦provided by the United States¦ ¦[Rosebud's] treaties and other agreements with ¦to Indians because of their ¦ ¦the United States." ¦status as Indians, pursuant ¦ ¦ ¦to [Rosebud's] treaties and ¦ ¦(Id. ¶ 2.) ¦agreements with the United ¦ ¦ ¦States, various Acts of ¦ ¦ ¦Congress and federal common ¦ ¦ ¦law." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 2.) ¦ +-----------------------------------------------+-----------------------------¦ ¦Defendants are the Secretary of the Interior, ¦ ¦ ¦"charged by law with carrying out the duties ¦ ¦ ¦and responsibilities of the United States as ¦ ¦ ¦trustee for the [Rosebud];" the Secretary of ¦ ¦ ¦the Treasury, "the custodian of [Rosebud's] ¦ ¦ ¦trust funds ... responsible for the ¦The defendant is the United ¦ ¦administration of those funds and for the ¦States of America. ¦ ¦preparation and maintenance of records in ¦ ¦ ¦connection with those funds;" and the Special ¦(Id. ¶ 3.) ¦ ¦Trustee for American Indians, with duties and ¦ ¦ ¦responsibilities "detailed in the Act of ¦ ¦ ¦October 25, 1994, Pub. L. No. 103-412, 108 ¦ ¦ ¦Stat. 4239." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶¶ 3, 4 & 5.) ¦ ¦ +-----------------------------------------------+-----------------------------¦ ¦ ¦"This Court has jurisdiction ¦ ¦ ¦over the subject matter of ¦ ¦Jurisdictional grounds include 28 U.S.C. §§ ¦this action under the Tucker ¦ ¦1331 and 1362 as well as treaties and other ¦Act, 28 U.S.C. § 1491 and the¦ ¦federal statutes governing the legal ¦Indian Tucker Act 28 U.S.C. §¦ ¦relationship with the United States. 28 U.S.C. ¦1505 in that this action ¦ ¦§ 1361 and 5 U.S.C. §§ 702, 704 and 706 are ¦involves claims brought by an¦ ¦also invoked to compel federal officers to ¦Indian tribe . . . for money ¦ ¦perform their duties. ¦damages arising under the ¦ ¦ ¦constitution, laws, treaties ¦ ¦(Id. ¶ 6,.) ¦and regulations of the United¦ ¦ ¦States, Executive Orders of ¦ ¦ ¦the President and federal ¦ ¦ ¦common ¦ +-----------------------------------------------------------------------------+
Difference in named defendants is not relevant. As the Supreme Court explained in Tohono, "the CFC bar [of § 1500] applies even where the other action is not against the Government but instead against a 'person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States . . . . A person acts under color of federal law in respect to a cause of action by claiming or wielding federal authority in the relevant factual context." 131 S. Ct. at 1728.
+-----------------------------------------------------------------------------+ ¦ ¦law governing the administration and management of property ¦ ¦ ¦and assets held by the United States in trust for ¦ ¦ ¦[Rosebud].... The Court also has jurisdiction over the subject¦ ¦ ¦matter under the Constitution of the United States and the ¦ ¦ ¦American Indian Trust Fund Management Reform Act of 1994, 25¦ ¦ ¦U.S.C. § 4001 et seq., which required the Defendant to provide¦ ¦ ¦[Rosebud] with a full and complete accounting of the holder's ¦ ¦ ¦funds to the earliest possible date. 25 U.S.C. ¦ ¦ ¦ ¦ ¦ ¦§4044." ¦ ¦ ¦ ¦ ¦ ¦(Id- ¶ 4.) ¦ +--------------+--------------------------------------------------------------¦ ¦"[Rosebud] is ¦ ¦ ¦a party to, ¦ ¦ ¦and'or the ¦ ¦ ¦successor in ¦ ¦ ¦interest to, ¦ ¦ ¦the ¦ ¦ ¦signatories of¦ ¦ ¦certain Indian¦ ¦ ¦treaties with ¦ ¦ ¦the United ¦ ¦ ¦States and it ¦ ¦ ¦is the ¦ ¦ ¦beneficial ¦ ¦ ¦owner of ¦ ¦ ¦certain monies¦ ¦ ¦currently or ¦ ¦ ¦previously ¦ ¦ ¦held in trust ¦ ¦ ¦for [Rosebud] ¦ ¦ ¦by the United ¦ ¦ ¦States, as ¦ ¦ ¦well as of ¦ ¦ ¦certain land ¦ ¦ ¦and other ¦ ¦ ¦trust assets, ¦ ¦ ¦title to which¦Rosebud is the successor-in-interest to signatories to certain¦ ¦is held in ¦treaties with the United States, is the beneficial owner of ¦ ¦trust by the ¦certain monies currently or previously held in trust by the ¦ ¦United States ¦United States, land valuable for grazing, agriculture and ¦ ¦for the ¦recreational uses, and other assets held in trust. Trust ¦ ¦benefit of the¦assets also include the natural resources on that land, ¦ ¦Tribe. ¦including water, timber, gravel and a variety of mineral ¦ ¦[Rosebud] is ¦reserves. Rosebud also holds off-reservation assets and ¦ ¦also the owner¦usufructuary rights also held in trust by the United States. ¦ ¦of the natural¦ ¦ ¦resources ¦(Id. ¶ 16. ) ¦ ¦located on ¦ ¦ ¦their land ¦ ¦ ¦held in trust ¦ ¦ ¦and managed by¦ ¦ ¦the United ¦ ¦ ¦States, ¦ ¦ ¦including, ¦ ¦ ¦among others: ¦ ¦ ¦water, timber,¦ ¦ ¦and a variety ¦ ¦ ¦of mineral ¦ ¦ ¦reserves. ¦ ¦ ¦[Rosebud's] ¦ ¦ ¦trust holdings¦ ¦ ¦also include ¦ ¦ ¦land which is ¦ ¦ ¦valuable for ¦ ¦ ¦grazing, ¦ ¦ ¦agricultural ¦ ¦ ¦and ¦ ¦ ¦recreational ¦ ¦ ¦use, and for ¦ ¦ ¦other ¦ ¦ ¦purposes." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 8.) ¦ ¦ +--------------+--------------------------------------------------------------¦ ¦Defendant has ¦ ¦ ¦"approved, ¦ ¦ ¦among others: ¦ ¦ ¦(A) agreements¦ ¦ ¦for the use ¦ ¦ ¦and extraction¦ ¦ ¦of natural ¦ ¦ ¦resources ¦ ¦ ¦which are or ¦ ¦ ¦were located ¦ ¦ ¦on [Rosebud's]¦ ¦ ¦trust ¦ ¦ ¦property, (B) ¦ ¦ ¦leases of ¦ ¦ ¦[Rosebud's] ¦ ¦ ¦trust lands, ¦ ¦ ¦(C) easements ¦ ¦ ¦across ¦ ¦ ¦[Rosebud's] ¦ ¦ ¦trust land, ¦ ¦ ¦(D) grazing ¦ ¦ ¦permits on ¦ ¦ ¦[Rosebud's] ¦ ¦ ¦trust land, ¦ ¦ ¦and (E) other ¦ ¦ ¦grants, to ¦ ¦ ¦third parties,¦ ¦ ¦of the ¦ ¦ ¦authority to ¦ ¦ ¦use certain of¦ ¦ ¦[Rosebud's] ¦ ¦ ¦trust lands ¦ ¦ ¦and natural ¦ ¦ ¦resources for ¦ ¦ ¦specific ¦"Defendant has assumed control and management over [Rosebud's]¦ ¦purposes . . .¦trust property and trust resources. ... Defendant has approved¦ ¦. [and] in ¦leases, easements, rights-of-way and other uses and ¦ ¦certain ¦conveyances of the property and the resources located therein.¦ ¦limited ¦Defendant has also approved various third party uses and ¦ ¦instances, ¦taking of said land and resources. In so doing the Defendant ¦ ¦conveyed title¦assumed responsibility for the collection, deposit and ¦ ¦... to third ¦investment of the income generated or which should have been ¦ ¦parties and ¦generated by such conveyances and use rights." ¦ ¦... approved ¦ ¦ ¦the use of ¦(Id. ¶ 20.) ¦ ¦certain of ¦ ¦ ¦[Rosebud's] ¦ ¦ ¦trust lands ¦ ¦ ¦for Federal ¦ ¦ ¦purposes. By ¦ ¦ ¦granting these¦ ¦ ¦rights, the ¦ ¦ ¦Defendant . . ¦ ¦ ¦. assumed the ¦ ¦ ¦legal ¦ ¦ ¦responsibility¦ ¦ ¦for the ¦ ¦ ¦collection of ¦ ¦ ¦fair and ¦ ¦ ¦equitable ¦ ¦ ¦compensation ¦ ¦ ¦for those ¦ ¦ ¦conveyances or¦ ¦ ¦uses ¦ ¦ ¦including, but¦ ¦ ¦not limited ¦ ¦ ¦to: royalty ¦ ¦ ¦payments, ¦ ¦ ¦grazing fees, ¦ ¦ ¦rents, ¦ ¦ ¦purchase ¦ ¦ ¦prices, and ¦ ¦ ¦such other ¦ ¦ ¦fees and ¦ ¦ ¦payments as ¦ ¦ ¦are or were ¦ ¦ ¦appropriate." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 12.) ¦ ¦ +-----------------------------------------------------------------------------+
Paragraphs five through fifteen generally describe the evolution of the Rosebud tribe, the various statutes and treaties establishing the trust duties alleged, and the formation of the Rosebud Sioux Reservation.
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+-----------------------------------------------------------------------------+ ¦"Under the terms of its treaties, and ¦ ¦ ¦under other applicable law, tribal ¦ ¦ ¦land held in trust and the tribal ¦ ¦ ¦resources located on those trust lands¦"Congress has granted the Secretary of¦ ¦are inalienable except as authorized ¦the Interior the authority to approve ¦ ¦by Congress, or by the terms and ¦certain limited conveyances of certain¦ ¦conditions of [Rosebud's] treaties ¦interests in [Rosebud's] trust lands ¦ ¦with the United States . . . . ¦and trust resources, including but not¦ ¦Congress has granted the Secretary of ¦limited to: leases, easements, ¦ ¦the Interior the authority to approve ¦rights-of-way, resource harvesting and¦ ¦conveyances of certain interests in ¦resource use agreements. Federal law ¦ ¦[Rosebud's] trust lands and trust ¦establishes the terms and conditions ¦ ¦resources, including but not limited ¦under which such conveyances, leases ¦ ¦to: leases, easements, rights of way, ¦and agreement may be made. Federal law¦ ¦resource harvesting and resource use ¦also generally requires that ¦ ¦agreements. Federal law establishes ¦compensation be paid to [Rosebud] for ¦ ¦the terms and conditions under which ¦the conveyance and/or use of its trust¦ ¦such conveyances may be made. Federal ¦lands and trust resources." ¦ ¦law also generally requires that ¦ ¦ ¦compensation be paid to [Rosebud] for ¦(Id. ¶ 17.) ¦ ¦the conveyance and the use of tribal ¦ ¦ ¦lands and tribal trust resources." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 9.) ¦ ¦ +--------------------------------------+--------------------------------------¦ ¦"Because the United States holds ¦ ¦ ¦[Rosebud's] trust lands, trust ¦ ¦ ¦resources and the proceeds generated ¦ ¦ ¦by or from the use, sale, or taking of¦ ¦ ¦said resources in trust, it has ¦ ¦ ¦assumed the obligations of a trustee .¦ ¦ ¦. . . As trustee, the United States ¦ ¦ ¦has a fiduciary relationship with ¦ ¦ ¦[Rosebud] and an obligation to ¦ ¦ ¦administer the trust with the greatest¦ ¦ ¦skill and care possessed by the ¦"Because the United States holds ¦ ¦trustee." ¦[Rosebud's] lands, resources and the ¦ ¦ ¦proceeds generated by and from the ¦ ¦(Id. ¶ 14.) ¦use, sale, or taking of said resources¦ ¦ ¦in trust, it has assumed the ¦ ¦"The trust obligation of the United ¦obligations of a trustee . . . . As ¦ ¦States includes, among other duties, ¦trustee, the United States has a ¦ ¦the duty to ensure that tribal trust ¦fiduciary duty to [Rosebud] to ¦ ¦property and trust funds are ¦administer the trust with the greatest¦ ¦protected, preserved and managed so as¦skill and care possessed by a trustee.¦ ¦to produce the highest and best use ¦The United States has charged itself ¦ ¦and return to the tribal owner ¦with a moral obligation of the highest¦ ¦consistent with the trust character of¦responsibility and trust in its ¦ ¦the property. Said duty requires the ¦conduct with Indian tribes and its ¦ ¦United States to further insure that ¦conduct should therefore be judged by ¦ ¦[Rosebud] is afforded its full rights ¦the most exacting fiduciary ¦ ¦to compensation." ¦standards.... This includes a duty to ¦ ¦ ¦insure that the tribal trust property,¦ ¦(Id. ¶ 15.) ¦funds and assets are protected, ¦ ¦ ¦preserved and managed in full ¦ ¦"Defendant and his predecessors have, ¦compliance with the Defendant's trust ¦ ¦when they took office, assumed the ¦duties and applicable law." ¦ ¦responsibility for the collection of ¦ ¦ ¦the payments.and.have assumed the ¦(Id. ¶ 21.) ¦ ¦responsibility for the investment of ¦ ¦ ¦the corpus of the trust, including the¦ ¦ ¦trust assets, the income that was and ¦ ¦ ¦is being generated by [Rosebud's] ¦ ¦ ¦trust lands, and trust resources and ¦ ¦ ¦by the other trust monies paid to ¦ ¦ ¦ ¦ ¦ ¦[Rosebud]." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 13.) ¦ ¦ +--------------------------------------+--------------------------------------¦ ¦"The trust obligations of the United ¦"The trust obligation of the United ¦ ¦States also include . the duty to: (A)¦States includes, among other duties, ¦ ¦collect the trust funds rightfully ¦the duty to insure that tribal trust ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦property and trust funds are ¦ ¦ ¦protected, preserved and managed so as¦ ¦ ¦to insure the highest and best use of ¦ ¦ ¦those assets and funds, and where ¦ ¦ ¦applicable, the highest revenue to the¦ ¦ ¦tribal owner consistent with the trust¦ ¦ ¦character of the property. Said duty ¦ ¦ ¦requires the United States to further ¦ ¦ ¦insure that [Rosebud] is afforded its ¦ ¦ ¦full rights to compensation for any ¦ ¦ ¦taking of trust assets as required by ¦ ¦ ¦the Constitution of the United States ¦ ¦ ¦and other applicable law, and that it ¦ ¦ ¦administers those duties with the ¦ ¦ ¦greatest skill and care possessed by a¦ ¦ ¦trustee." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 23.) ¦ ¦ ¦ ¦ ¦ ¦"The Defendant . . . also has ¦ ¦ ¦responsibility to: ¦ ¦ ¦ ¦ ¦owed to [Rosebud]; (B) create trust ¦
¦ ¦accounts to hold those funds[;] (C) ¦ ¦ ¦insure that the monies owed or paid ¦A. Provide adequate systems for ¦ ¦for the loss or use of tribal lands ¦accounting for and reporting trust ¦ ¦and trust resources are placed into ¦fund balances; ¦ ¦those accounts[;] (D) maintain ¦ ¦ ¦adequate records with respect to ¦B. Provide adequate controls over ¦ ¦[Rosebud's] trust property[;] (E) ¦receipts and disbursements; ¦ ¦maintain adequate systems and controls¦ ¦ ¦to guard against errors or dishonesty;¦C. Provide periodic and timely ¦ ¦(F) provide regular and accurate ¦reconciliations to insure the accuracy¦ ¦accountings to [Rosebud] as the trust ¦of accounts; ¦ ¦beneficiary; (G) refrain from ¦ ¦ ¦self-dealing or benefiting from the ¦D. Determine accurate cash balances; ¦ ¦management of the trust property; (H) ¦ ¦ ¦insure the Federal Government's ¦E. Prepare and supply account holders ¦ ¦compliance with the protections ¦with periodic statements of their ¦ ¦afforded [Rosebud] under the ¦account performance and with balances ¦ ¦Constitution of the United States and ¦of their account to be available on a ¦ ¦other applicable law [;]and (I) to ¦daily basis; ¦ ¦consult with [Rosebud] regarding the ¦ ¦ ¦management of its trust property." ¦F. Establish consistent written ¦ ¦ ¦policies and procedures for trust fund¦ ¦(Id. ¶ 16.) ¦management and accounting; ¦ ¦ ¦ ¦ ¦"Congress imposed two requirements on ¦G. Provide adequate staffing, ¦ ¦the Defendants: (1) that they audit ¦supervision and training for trust ¦ ¦and reconcile tribal trust funds, and ¦funds management and accounting; and ¦ ¦(2) that they provide the tribes with ¦ ¦ ¦an accounting of such funds. Congress ¦H. Appropriately manage the natural ¦ ¦reaffirmed these two mandates in ¦resources located both within the ¦ ¦subsequent statutes.... Congress ¦boundaries of Indian reservations and ¦ ¦further required that the Defendants ¦trust lands." ¦ ¦certify, through an independent party,¦ ¦ ¦the results of the reconciliation of ¦¦ ¦tribal trust funds." ¦ ¦ ¦ ¦(Id. ¶ 24.) ¦ ¦(Id. ¶ 22.) ¦ ¦ ¦ ¦"[T]rust obligations of the United ¦ ¦ ¦States include... the duty to (a) ¦ ¦ ¦exercise opportunities to obtain ¦ ¦ ¦monetary benefits from [Rosebud's] ¦ ¦ ¦trust land and resources, (b) enter ¦ ¦ ¦into reasonable contracts to advance ¦ ¦ ¦those opportunities, (c) timely ¦ ¦ ¦collect the trust funds rightly owed ¦ ¦ ¦to [Rosebud] and any penalties and ¦ ¦ ¦interest associated with income ¦ ¦ ¦generating transactions, (d) timely ¦ ¦ ¦create trust accounts to hold those ¦ ¦ ¦funds, (e) insure that the monies owed¦ ¦ ¦or paid for the loss or use of trust ¦ ¦ ¦lands and resources are placed in ¦ ¦ ¦those accounts in a timely manner, (f)¦ ¦ ¦maintain adequate records with respect¦ ¦ ¦to [Rosebud's] trust property, (g) ¦ ¦ ¦maintain adequate systems and controls¦ ¦ ¦to guard against errors or dishonesty,¦ ¦ ¦(h) provide regular and accurate ¦ ¦ ¦accountings to [Rosebud] as the trust ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦beneficiary, (i) refrain from self-dealing or ¦ ¦ ¦benefiting from the management of the trust ¦ ¦ ¦property, (j) insure the Federal Government's ¦ ¦ ¦compliance with the protections afforded [Rosebud] ¦ ¦ ¦under the Constitution of the United States and ¦ ¦ ¦other applicable law, and (k) consult with [Rosebud]¦ ¦ ¦regarding the management of its trust property and ¦ ¦ ¦the implementation of the Government's treaty ¦ ¦ ¦obligations." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 25.) ¦ +------------------------+----------------------------------------------------¦ ¦"Defendants have never ¦ ¦ ¦rendered a full, ¦ ¦ ¦accurate or timely audit¦ ¦ ¦or accounting to ¦ ¦ ¦[Rosebud] of its trust ¦ ¦ ¦assets, or provided ¦ ¦ ¦[Rosebud] with a clear ¦ ¦ ¦statement as to the ¦ ¦ ¦origin or use of all of ¦ ¦ ¦the funds in each of ¦ ¦ ¦those accounts.... ¦ ¦ ¦Defendants have kept and¦ ¦ ¦continue to keep ¦ ¦ ¦[Rosebud], who is the ¦ ¦ ¦trust beneficiary, ¦ ¦ ¦uninformed as to: (A) ¦ ¦ ¦the trust property, ¦ ¦ ¦trust funds and trust ¦ ¦ ¦resources it owns or ¦ ¦ ¦owned, (B) the income ¦ ¦ ¦and interest that ¦ ¦ ¦[Rosebud's] currently ¦ ¦ ¦owned and previously ¦ ¦ ¦owned trust property, ¦"For at least the past several decades, Defendant's ¦ ¦resources and funds have¦accounting for, management of, and exercise of other¦ ¦produced, and (C) what ¦fiduciary responsibilities and control over Indian ¦ ¦disposition-if any-has ¦trust funds has been thoroughly examined and highly ¦ ¦been made of that ¦criticized by private entities, various government ¦ ¦income; and (D) whether ¦agencies, Congress and the courts. Problems ¦ ¦the United States has ¦identified include, but are not limited to, the ¦ ¦properly managed ¦Defendant's inability to account for funds due to ¦ ¦[Rosebud's] trust ¦its loss of or failure to keep records, undue delays¦ ¦assets." ¦in making investments, and poor investment ¦ ¦ ¦decision-making, such as investing in failed ¦ ¦(Id. ¶ 18.) ¦financial institutions. The Defendant's continuing ¦ ¦ ¦widespread and well-documented Indian trust fund ¦ ¦"[Mismanagement ... has ¦mismanagement, and other breaches of trust have ¦ ¦resulted in losses to ¦affected and continue to affect [Rosebud's] trust ¦ ¦[Rosebud], a trust ¦assets and have caused and continue to cause ¦ ¦beneficiary. However, ¦monetary losses to [Rosebud]." ¦ ¦the extent of the losses¦ ¦ ¦is unknown to [Rosebud] ¦(Id. ¶ 27.) ¦ ¦at this time because the¦ ¦ ¦Defendants have: ¦"Defendant has failed to keep records of and/or has ¦ ¦ ¦failed to keep proper records regarding [Rosebud's] ¦ ¦
¦trust accounts and assets, and these failures ¦ ¦ ¦continue today. Defendant has never provided ¦ ¦(A) failed to provide ¦[Rosebud] with a full and meaningful accounting of ¦ ¦[Rosebud] with a full ¦its trust assets and trust funds. Indeed, before ¦ ¦and complete accounting ¦filing this action, [Rosebud] filed a complaint in ¦ ¦of the source of its ¦the United States District Court for the District of¦ ¦trust funds, ¦Columbia, ¦ ¦ ¦Rosebud Sioux Tribe v. Kempthorne[,] 1:05-CV-02492¦ ¦(B) failed to provide ¦[the district court action], demanding a full ¦ ¦[Rosebud] with an ¦accounting of its trust accounts, trust assets and ¦ ¦accurate accounting of ¦trust property. To date, the Defendant has failed to¦ ¦the amount contained in ¦provide that accounting or other sufficient ¦ ¦each of its accounts, . ¦information which would otherwise afford [Rosebud] ¦ ¦ ¦the ability to determine whether, and to what ¦ ¦(C) failed to provide ¦extent, it has suffered a loss as a result of the ¦ ¦[Rosebud] with a ¦Defendant's continual wrongdoing or other breaches ¦ ¦comprehensive statement ¦of trust." ¦ ¦of the use and ¦ ¦ ¦investment of its trust ¦(Id. ¶ 28.) ¦ ¦funds..., ¦ ¦ ¦ ¦"Defendant has failed to obtain and continues to ¦ ¦(D) failed to maintain ¦fail to obtain the maximum investment return ¦ ¦accurate books and ¦possible . . . on [Rosebud's] trust funds. This ¦ ¦records of [Rosebud's] ¦breach of fiduciary duty ¦ ¦account, ¦ ¦ ¦ ¦ ¦ ¦(E) lost and destroyed ¦ ¦ ¦relevant trust account ¦ ¦ ¦records, ¦ ¦ ¦ ¦ ¦ ¦(F) failed or refused to¦ ¦ ¦disclose known losses, ¦ ¦ ¦or unmade or incomplete ¦ ¦ ¦payments to [Rosebud]., ¦ ¦ ¦ ¦ ¦ ¦(G) failed or refused to¦ ¦ ¦reimburse trust ¦ ¦ ¦beneficiaries for losses¦ ¦ ¦to their trust funds, ¦ ¦ ¦and ¦ ¦ ¦ ¦ ¦ ¦(H) failed to properly ¦ ¦ ¦create certain trust ¦ ¦ ¦accounts and deposit the¦ ¦ ¦appropriate monies in ¦ ¦ ¦those accounts." ¦ ¦ ¦ ¦ ¦ ¦¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦has caused and continues to cause monetary ¦ ¦ ¦loss to [Rosebud]." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 29.) ¦ ¦ ¦ ¦ ¦(Id. ¶ 21.) ¦"Complaints voiced by tribal leaders and ¦ ¦ ¦other third parties led the Congress of the ¦ ¦"To date, the Defendants have ¦United States to undertake an investigation ¦ ¦failed to provide [Rosebud] with¦into Defendant's management and oversight ¦ ¦a full, accurate and timely ¦over tribal trust accounts. E.g. ¦ ¦accounting of its trust funds ¦Cobell [v. Norton, 240] F. 3d 1081 (D.C. ¦ ¦and have failed to meet their ¦Cir. 2001). Congress has recognized the ¦ ¦other statutory and legal ¦gross breaches of trust described herein, as¦ ¦obligation to [Rosebud] leaving ¦has the General Accounting Office and the ¦ ¦them in clear breach of their ¦Office of Management and Budget. The Office ¦ ¦trust responsibility." ¦of Management and Budget consistently placed¦ ¦ ¦the financial management of Indian trust ¦ ¦(Id. ¶ 26.) ¦funds, including those belonging to the ¦ ¦ ¦[Rosebud], as a 'high ¦ ¦ ¦ ¦ ¦ ¦risk liability' to the United States." ¦ ¦ ¦ ¦ ¦ ¦(Id. ¶ 30.) ¦ +-----------------------------------------------------------------------------+
Tohono O'odham Nation v. United States, 79 Fed. Cl. 645, 659 (2007) (footnote omitted), rev'd, 559 F.3d 1284 (Fed. Cir. 2009), rev'd, 131 S. Ct. 1723 (2011).
Id. (internal citations omitted). But see 131 S. Ct. 1735 n.5 (Sotomayor, J. concurring) ("The majority next suggests that Congress has tolled the statute of limitations governing the Nation's CFC claims. But the cited statute only applies to claims 'concerning losses to or mismanagement of trust funds.' It does not appear to toll the statute of limitations for claims concerning assets other than funds, such as tangible assets. Expiration of the 6-year statute of limitations governing claims in the CFC is a very real prospect in this and other cases; the Nation's District Court action has been pending for more than four years." (internal citations omitted)). In this regard, defendant reserved the right to contest the jurisdiction of the district court to grant the requested relief. (Mot. Dismiss 9, n.8, ECF No. 36.) See Trusted Integration, 659 F.3d 1159, 1166 n.2 (Fed. Cir. 2011) (applying § 1500 to circumstances at the time the CFC Complaint was filed, regardless of subsequent dismissal in the district court (citing Keene, 508 U.S. at 207 and Tohono, 131 S. Ct. at 1731)); see also oral argument in the Federal Circuit in Eastern Shawnee Tribe v. United States available at http://www.cafc.uscourts.gov/oral-argument-recordings/search (questioning counsel regarding possible consequences of lack of jurisdiction in the district court). On remand from the United States Supreme Court, the Federal Circuit recently affirmed Eastern Shawnee Tribe of Oklahoma v. United States, 82 Fed. Cl. 322 (2008). Eastern Shawnee Tribe of Okla. v. United States, __ Fed. Appx. __, 2011 WL 5317384 (Fed. Cir. Nov. 3, 2011) (unpublished). In analyzing § 1500, the CFC observed: "[w]hether another claim is 'pending' for purposes of Section 1500 is determined at the time at which the suit is filed in this court, not some later time." 82 Fed. Cl. at 326 (citing Loveladies Harbor, 27 F.3d at 1548). One ramification of lack of district court jurisdiction could be a transfer of the matter to the CFC pursuant to 28 U.S.C. § 1631.
Tohono, 131 S. Ct. at 1731 ("The CFC dismissed the action here in part because it concluded that the facts in the Nation's two suits were, 'for all practical purposes, identical.' [Tohono,] 79 Fed. Cl. [at] 656 [ ]. It was correct to do so."); see also Tohono, 79 Fed. Cl. at 648-51 (comparing complaints side-by-side).