Opposition Brief — Oglala Sioux Tribal Public Safety Department v. Babbitt

Dt enor eee ee

S) (2

Nos. 99-1239 and 99-1261) °

In the Supreme Court of the nited States |

OGLALA SIOUX TRIBAL PUBLIC SAFETY DEPARTMENT,

PETITIONER

v.

BRUCE BABBITT, SECRETARY OF THE INTERIOR

MICCOSUKEE CORPORATION, PETITIONER

Vv.

BRUCE BABBITT, SECRETARY OF THE INTERIOR

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

DAVID M. COHEN

KIRK T. MANHARDT

WILLIAM G. KANELLIS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Miccosukee Corporation and the Oglala

Sioux Tribal Public Safety Department, both tribal

organizations, were entitled to full funding of the

contract support costs associated with their provision of

services to their respective Tribes, where the statutory

and contractual provisions relating to payment of those

costs make payment subject to the availability of

appropriations, and where Congress specifically capped

appropriations for contract support costs at a level

insufficient to provide full funding.

(I)

TABLE OF CONTENTS

Page

Opinions DelOW ........sssssssscssesnsesneesseesnessnecsssssnneennennnecnnssnnecancnsensness 1

JUTISGICCION ..................cccscescceccssscscsesssssensenscessssssscssessnssensensesesensees 2

Beatene4nt ....0..rcccrrescrecserccesccocsescovsesrssssesscossnscecoeosesssassssoszoseocoscoossees 2

ALQUMENL ......cecsessessessnssneensennsenseneenesnsssnssneenscsnennecnncnncanecnscnssanenesee® 8

COMCIUBION. .....0000c0sccccccsscccccccccsecssscnssccasscsscosssssssecssnssensssssesscossescoosees 17

TABLE OF AUTHORITIES

Cases:

Bailey v. United States, 516 U.S. 187 PRINE: ssdevssbeniianislasian 10

Connecticut Nat'l Bank v. Germain, 503 U.S.

PAD (1992) ....rcccccoscecscscscssssessssssssccecevesecsensacssessssserssvsssnsereossesoes ~

Heckler v. Community Health Servs., 467 U.S. 51

(198A) c.ccccccccscccssiccessssesessssvccssssssnsnsesscsssssnensecsesnsersssscnseseesnesenens 16

Moskal v. United States, 498 U.S. 103 (1990) ........:sseseee 11

New York Airways, Inc. v. United States,

369 F.2d 748 (Ct. Cl. 1966) .........csesesessessereerenesesseessereres 7,14

OPM vy. Richmond, 496 U.S. 414 (1990) ....ceeeseseeeeeees 7,17

Ramah Navajo Chapter v. Lujan, 112 F.3d 1455

(LOth Cir. 1997) .......cscsscscscssssssssssseeserscsesssssesssensnsscsnenesesesnsnees 7,13

Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d

1338 (D.C. Cir. 1996) ........ccccosorrsccrcsccsssrssssesseerees 3, 7, 9, 12, 13

Rubin v. United States, 449 U.S. 424 (1981) ......cssssseseeees 8

South Carolina v. Catawba Indian Tribe, Inc.,

ATG U.S. 498 (1986) .......cccccescccsscsscsscsssssssscsesessensessesssssesasensens 16

United States v. Ron Pair Enters., 489 U.S. 235

(19BQ) ...ccccoscscscccccoseresesesecersssenecesesoserssseorsssnsnsssesscscssesonsesseneneneees 15

United States v. Winstar Corp., 518 U.S. 839

(1996) ....cecocccccsssocossssssesecsssscessssesnssrscsvcnsnssssnsesasonsoscssssensocsssnsoese 15

Varity Corp. v. Howe, 516 U.S. 489 (1996) ....--sssssseesseeees 11

West Virginia Univ. Hosps., Inc. v. Casey, 499 US.

BB (1991) ...cececcccccscvrvcessccssnsoessscesecesesnvocsncessssessesesosssssonsnsnsesosenees 16

(IIT)

IV

Case—Continued: Page

Yankee Atomic Elec. Co. v. United States, 112 F.3d

1569 (Fed. Cir. 1997), cert. denied, 524 U.S. 951

(1998) .....c.cccessccscsesesecseseseseseseossscsceceresesarssenensesorersesesesecneneneacaees 15

Constitution and statutes:

U.S. Const. Art. I, § 9, Cl. 7 (Appropriations

CRBRIIB) cceceocecvnccoovsscosncesosessverecsserevansntsnossousnvoenevensenansasnsoeneees aa 10

Indian Self-Determination and Education Assistance

Act, 25 U.S.C. 450 et seq.:

25 U.S.C. 450-450n (1994 & Supp. TV 1998) ......esesseee 2,8

25 U.S.C. 450 a(D) ......scsssscccsssssssscscesssereresenesssssenssssssessserees 2

2B U.S.C. 4508 .....cccccccsssccessssessssscnssssecenssvsssesssnsneresssoscsesooses 3

25 U.S.C. 450j(c) sie gusialas niedeaaeeieliisepsioiaeriaanalasneianh 9

DB U.S.C. A50j(C)2) ..ccsssssccosssscsnesessnsscsssnesecsnsssessnsscssnsocee 9,11

QB U.S.C. 450j-1 c.neccsssscscssssessseenessenencnrenensesensneneenenees 10, 11, 12

25 U.S.C. 450j-1(a) ...eesesessesseeenensensnenensesesneeeeneees 8, 9, 10, 11

25 U.S.C. 450j-1(a)(1) ..scscssssesecsesensesensnsenensnnensnsnseeneneasenenes 3

25 U.S.C. 450j-1(a)(2) ..eseseseseceessssneesseersessnseeseenensnenanenenens 3

25 U.S.C. 450j-1(D) ....eeeecseseseeseneesnessessnsnseeensnsnsnenenenees passim

25 U.S.C. 4501 (a) ......cccssesssscssccssssescessceecersscecsesesssssssssececeees 3, 11

25 U.S.C. 4501(C) ......sssersssceserercnesscsscesessesees 3, 4, 9, 11, 14, 15

Interior Appropriations Act of 1994, Pub. L. No.

103-138, Tit. 1, 107 Stat. 1379 ...ceccsessesenesesssesnensnensssnsanenees 4

107 Stat. 1391 ..........c.c.cccsosssscscsccecssssesessesersssssssvcssesssseesecees 4

Interior Appropriations Act of 1995, Pub. L. No.

103-332, 108 Stat. 2511.0... esssssseeeseesesssenenseensnsrsnensenenenenees 5

Miscellaneous:

58 Fed. Reg. 68,694 (1993) ......ssssesesssesesesnensensnnensansnsensnseens 5

59 Fed. Reg. 55,318 (1994) ......sessssssesssessesnesnenensenensnsensnsnsesenes 5

In the Supreme Court of the GAnited States

No. 99-1239

OGLALA SIOUX TRIBAL PUBLIC SAFETY DEPARTMENT,

PETITIONER

Vv.

BRUCE BABBITT, SECRETARY OF THE INTERIOR

No. 99-1261

MICCOSUKEE CORPORATION, PETITIONER

Vv.

BRUCE BABBITT, SECRETARY OF THE INTERIOR

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals in No. 99-1239,

Oglala Sioux Tribal Public Safety Department v.

Babbitt (Oglala Sioux) (Oglala Pet. App. A1-A21),' is

1 The petition for a writ of certiorari in No. 99-1239, Oglala

Sioux Tribal Public Safety Department v. Babbitt, is referenced

herein as “Oglala Pet.,” and the Appendix to that petition as

“Oglala Pet. App.” The petition in No. 99-1261, Miccosukee Corpo-

ration v. Babbitt, is referenced as “Miccosukee Pet.,” and the

Appendix to that petition as “Miccosukee Pet. App.”

(1)

2

reported at 194 F.3d 1374. The decision of the United

States Department of the Interior Board of Contract

Appeals (Oglala Pet. App. B78-B82) is reported at

IBCA No. 3680-97, 98-2 BCA (CCH) ¥ 29,833, available

in 1998 WL 347090 (June 24, 1998).

The opinion of the court of appeals in No. 99-1261,

Miccosukee Corp. v. Babbitt (Miccosukee) (Miccosukee

Pet. App. la-2a) is unreported. The decision of the

IBCA (Miccosukee Pet. App. 22a-74a) is reported at

IBCA Nos. 3463-3466 & 3560-3562, 98-2 BCA (CCH)

q 29,832 (Mar. 2, 1998).

JURISDICTION

The judgment of the court of appeals in Oglala Sioux

was entered on October 27, 1999, and the petition for a

writ of certiorari was filed on January 24, 2000. The

judgment of the court of appeals in Miccosukee was

entered on October 29, 1999, and the petition for a writ

of certiorari was filed on January 27, 2000. This Court’s

jurisdiction is invoked in both cases under 28 U.S.C.

1254(1).

STATEMENT

1. The Indian Self-Determination and Education

Assistance Act (ISDA), 25 U.S.C. 450-450n (1994 &

Supp. IV 1998), was enacted in 1975 to permit Indian

Tribes to contract with the Secretary of the Interior

(the Secretary) to administer programs that otherwise

would be controlled and operated by the Secretary.

The ISDA was intended to ensure “effective and mean-

ingful participation by the Indian people in the

planning, conduct, and administration” of federal ser-

vices and programs provided to the Tribes and their

members. 25 U.S.C. 450a(b). To advance that purpose,

the ISDA provides that, at the request of a Tribe, a

Tribe and the Secretary may enter into a “self-

3

determination contract” under which the Tribe or a

tribal entity takes over the administration of certain

federal programs for the Tribe. 25 U.S.C. 450f. See

Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338,

1341 (D.C. Cir. 1996) (“The ISDA directs the Secretary

* * * to turn over to that Tribe the direct operation of

its federal Indian Programs.”). Self-determination con-

tracts must incorporate the provisions of a model

contract contained in the ISDA itself. See 25 U.S.C.

450/(a) and (c).

The ISDA requires the Secretary to fund direct and

indirect costs in support of self-determination con-

tracts. Direct costs are those amounts the “Secretary

would have otherwise provided for the operation of the

programs” if the Secretary himself had retained opera-

tion of the programs. 25 U.S.C. 450j-1(a)(1). Indirect

costs, or contract support costs (CSCs), “consist of an

amount for the reasonable costs for activities which

must be carried on by a tribal organization as a con-

tractor.” 25 U.S.C. 450j-1(a)(2).° The provision of funds

to cover direct and indirect costs, however, is limited by

a succeeding provision of the ISDA, Section 450j-1(b),

which is entitled “Reductions and increases in amount

of funds provided.” Section 450j-1(b) declares that,

““{njotwithstanding any other provision in this subchap-

ter, the provision of funds under this subchapter is

subject to the availability of appropriations.” 25 U.S.C.

450j-1(b). Section 450/(c) incorporates that same limit

2 The indirect cost rate is a percentage determined by annual

negotiations between the contracting party and the Department of

the Interior’s Office of the Inspector General. The amount of

reimbursement for indirect costs is calculated by multiplying the

indirect cost rate by the total direct costs of the contracting party

for the relevant fiscal year.

4

into the model contract, declaring that the Secretary

shall “make available to the Contractor the total

amount specified in” its contract, “[sJubject to the avail-

ability of appropriations.” 25 U.S.C. 450/(c).

2. This case arises out of seH-determination con-

tracts the Secretary entered into with the Miccosukee

Corporation (Miccosukee), a tribal corporation con-

trolled by the Miccosukee Tribe of Indians of Fiorida,

and with the Oglala Sioux Tribal Public Safety Depart-

ment (Oglala), a tribal organization that handles public

safety for the Oglala Sioux Tribe in South Dakota.

a. Miccosukee operated 12 self-determination con-

tracts for services administered on behalf of the Micco-

sukee Tribe in the 1994 fiscal year. Miccosukee Pet.

App. 26a. The “Indirect Cost Negotiated Agreement”

signed by the Miccosukee Corporation in September of

1993, under the heading “LIMITATIONS,” declared

that “({u]se of the rates contained in this agreement is

subject to any applicable statutory limitations.” Micco-

sukee C.A. App. 69.

The Interior Appropriations Act of 1994, Pub. L. No.

103-138, Tit. I, 107 Stat. 1379, which governed funding

of ISDA contracts for the 1994 fiscal year, capped fund-

ing of CSCs at slightly over $91 million, a level inade-

quate to fully fund all CSCs. Miccosukee Pet. App. 26a.

In relevant part, the Interior Appropriations Act of

1994 stated as follows:

Provided Further, That not to exceed $91,223,000 of

the funds in this Act shall be available for payments

to tribes and tribal organizations for indirect costs

associated with contracts or grants or compacts

authorized by the Indian Self Determination Act of

Soe

107 Stat. 1391.

5

Soon after that appropriations Act was passed, the

Bureau of Indian Affairs (BIA), an arm of the Depart-

ment of the Interior, published a notice in the Federal

Register informing ISDA contractors that Congress

had limited the amount of funding for CSCs, and that a

shortfall of as much as $25 million was expected. See 58

Fed. Reg. 68,694 (1993). The Federal Register notice

also explained how available funds would be distri-

buted. Jbid.

Once the BIA determined the precise amount of the

shortfall in June of 1994, it informed tribal contractors

(including Miccosukee) that it would be able to fund

only 81.2106% of each contractor’s CSCs for the 1994

fiscal year. Miccosukee Pet. App. 27a. Miccosukee

requested a contracting officer’s decision to fully fund

all of its CSCs notwithstanding the notice, and the

contracting officer denied Miccosukee’s claim. Jd. at

28a.

b. Oglala operated a self-determination contract

during the 1995 fiscal year. Its indirect cost agreement,

like Miccosukee’s, stated that use of the negotiated

rates would be “subject to” applicable statutory limits.

Oglala C.A. App. 20. For the 1995 fiscal year, Congress

capped the appropriation for CSC payments at just

under $96 million. See Interior Appropriations Act of

1995, Pub. L. No. 103-332, 108 Stat. 2511. Because that

sum was insufficient to cover total CSC costs, the Sec-

retary again published a notice in the Federal Register

explaining how the Secretary planned to allocate avail-

able funds to pay indirect costs. See 59 Fed. Reg.

55,318 (1994). Ultimately, for the 1995 fiscal year, the

Secretary was able to pay 91.74% of CSCs. In Oglala’s

case, that left $108,506 in CSCs unpaid for that year.

Oglala sought full funding of its CSCs from the

6

contracting officer, and the officer denied Oglala’s

claim. Oglala Pet. 4.

3. Both Miccosukee and Oglala appealed to the

Interior Board of Contract Appeals (IBCA or Board).

The IBCA stayed Oglala’s claim pending resolution of

Miccosukee’s. On cross-motions for summary judgment

on liability, the IBCA granted Miccosukee’s motion,

finding that the ISDA entitled Miccosukee to full

funding of all CSCs. Miccosukee Pet. App. 22a-72a.

The IBCA then ordered the Secretary to show cause

why summary judgment should not be granted to

Oglala. After the Secretary submitted his argument,

the IBCA granted summary judgment to Oglala for the

reasons stated in its Miccosukee opinion. Oglala Pet.

App. C78-C82.

4. The Secretary appealed both decisions. On

October 27, 1999, the Court of Appeals for the Federal

Circuit reversed the IBCA’s decision in Oglala. Oglala

Pet. App. Al-A21. The court of appeals explained that,

under 25 U.S.C. 450j-1(b), any funds provided under an

ISDA contract are subject to the availability of appro-

priations. Oglala Pet. App. A6 (“The language of § 450)-

l(b) is clear and unambiguous; any funds provided

under an ISDA contract are ‘subject to the availability

of appropriations.’”). That straightforward reading of

the ISDA, the court explained, is consistent with other

provisions of the Act. Jd. at A6-A7. Moreover, the

court continued, the Court of Appeals for the District of

Columbia Circuit had construed the ISDA in an identi-

cal manner. See id. at Al0 (“{T]he D.C. Circuit found

the language of § 450j-1(b) as clear as we do.”) (citing

7

Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338

(D.C. Cir. 1996)).°

The court of appeals rejected Oglala’s reliance on

New York Airways, Inc. v. United States, 369 F.2d 743

(Ct. Cl. 1966). See Oglala Pet. App. A9-A10. In that

ease, the court of appeals explained, the government

had failed to meet an unqualified payment obligation

imposed by the contract. Jd. at A10. Here, in contrast,

the payment obligation was not unqualified. To the

contrary, both the ISDA and the contract itself made

payment contingent on the availability of appropriated

funds. [bid.

Finally, the court of appeals found that Oglala could

not have reasonably relied on the expectation that it

would receive full funding for CSCs in light of the

“subject-to-availability-of-appropriations” language in

the ISDA and the model contract. Oglala Pet. App.

Al2. In any event, the court of appeals continued,

neither naked reliance nor estoppel can by itself obli-

gate the federal government to pay money from the

Treasury absent an appropriation by Congress [bid.

(citing OPM v. Richmond, 496 U.S. 414, 423-424 (1990)).

On October 29, 1999, the court of appeals reversed

the IBCA’s decision in Miccosukee for the reasons

stated in the court’s October 27, 1999 opinion in Oglala.

Miccosukee Pet. App. la-2a. Because the court of

appeals decided the Miccosukee case and the Oglala

case on identical grounds, and because Miccosukee’s

3 The court of appeals also distinguished Ramah Navajo

Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997). That decision,

the court explained, did not deal with a shortfall caused by Con-

gress’s failure to appropriate funds and thus has no bearing on the

meaning of Section 450j-1(b) or the result in this case. Oglala Pet.

App. All.

8

and Oglala’s petitions rely on arguments that are sub-

stantially similar, we submit this consolidated opposi-

tion to both petitions for writs of certiorari.

ARGUMENT

Both petitioners contend that the Indian Self-Deter-

mination and Education Assistance Act (ISDA), 25

U.S.C. 450-450n (1994 & Supp. IV 1998), requires full

funding and payment of their contract support costs,

notwithstanding Congress’s decision not to appropriate

sufficient funds to cover the full amount of those costs.

The court of appeals, however, correctly rejected that

contention, and its decision does not conflict with any

decision of this Court or any other court of appeals.

Accordingly, further review is not warranted.

1. The provision of the [SDA governing contract

funding an indirect costs, 25 U.S.C. 450j-1(a) and (b), is

clear and unambiguous. Section 450j-1(b) states that,

“[njotwithstanding any other provision” of the ISDA

regarding contract funding and direct costs, “the

provision of funds under this subchapter is subject to

the availability of appropriations.” 25 U.S.C. 450)-1(b).

In reading that provision to bar payment where Con-

gress declines to appropriate funds, the court of appeals

properly applied the elementary axiom that “[wJhen the

words of a statute are unambiguous, then * * *

‘judicial inquiry is complete.’” Connecticut Nat'l Bank

v. Germain, 503 U.S. 249, 254 (1992) (quoting Rubin v.

United States, 449 U.S. 424, 430 (1981)).

The court of appeals’ construction is also consistent

with the structure of the ISDA as a whole. Section

450j-1(a), which is entitled “Amount of funds provided,”

establishes the amounts that must be provided to tribal

organizations under ISDA contracts. Because Section

450j-1(b) is entitled “Reductions and increases in

)

amount of funds provided,” and because it immediately

follows Section 450j-1(a), it is most logically read as

providing the conditions under which the Secretary

may pay less (or more) than the amount otherwise

provided by Section 450j-1(a).

Indeed, any ambiguity on that score is removed by 25

U.S.C. 450j(c) and 450/(¢). Section 450j(c) establishes

the duration of self-determination contracts, and it

declares that “(t]he amounts of such contracts shall be

subject to the availability of appropriations.” 25 U.S.C.

450j(c) (emphasis added). That the phrase “amounts of

such contracts” in Section 450j(c) means the amounts

payable under the contracts is made clear by 450j(c)(2),

which declares that the “amounts of such contracts may

be renegotiated annually to reflect change[s]” such as

“cost increases beyond the control of the tribal organi-

zation.” Section 450/(c), which establishes the terms of

the mode! contract, similarly states that “the Secretary

shall make available to the Contractor the total amount

specified in the” ISDA contract, “[s]ubject to the avail-

ability of appropriations.” 25 U.S.C. 450/(c).

Finally, the court of appeals’ reading is consistent

with the over-all function of the ISDA. The ISDA in

effect permits the Secretary and Indian Tribes, by

agreement, to substitute tribal organizations for the

Department of the Interior in the administration and

provision of various federal programs and services to

Indian Tribes. See Ramah Navajo Sch. Bd., Inc. v.

Babbitt, 87 F.3d 1338, 1341 (D.C. Cir. 1996) (“The ISDA

directs the Secretary * * * to turn over to that Tribe

the direct operation of its federal Indian Programs.”).

In so doing, the ISDA places the Tribe in many re-

spects in the same position the Secretary would occupy,

and subjects the Tribe to the same limits the Secretary

would be subject to, if the Secretary continued to

10

operate the particular program himself. For example,

the Secretary is required to pay the Tribes the amount

the Secretary would have expended in providing those

services himself. 25 U.S.C. 450j-1(a). Consistent with

that general purpose of substituting tribal

organizations for federal bureaucracy, Section 450j-1(b)

also imposes on ISDA funding a limit that likewise

applies to funding of programs directly administered by

the Secretary. In the context of programs

administered by the Secretary, the established rule,

mandated by the Appropriations Clause of the Consti-

tution, Art. I, § 9, Cl. 7, is that, where Congress refuses

to appropriate funds for the programs, funds are un-

available and may not be spent on the programs.

Section 450j-1(b) merely applies that same rule to the

same programs where tribal organizations have taken

over administration from the Secretary.

2. Petitioners nonetheless argue (Oglala Pet. 9-12;

Miccosukee Pet. 14-17) that the court of appeals mis-

interpreted the text of Section 450j-1. In particular,

they argue that Section 450j-1(a) mandates full fund »g

of CSCs. Section 450j-1(b), they contend, only claril +s

that the Secretary need not disburse funds that have

not been appropriated. In essence, they argue that

Section 450j-1(b), which states that “the provision of

funds under [the ISDA] is subject to the availability of

appropriations,” 25 U.S.C. 450j-1(b) (emphasis added),

should be read as declaring that “the distribution of

funds under the [ISDA] is subject to the availability of

appropriations.” Miccosukee Pet. 19 (emphasis added).

Petitioners’ reading asks this Court to depart from

the rule that a word in a statute ordinarily must “be

given its ordinary or natural meaning,” Bailey v.

United States, 516 U.S. 137, 145 (1995), and ignores the

plain import of Section 450j-1(b), which on its face

1]

places limitations on the payments to Tribes authorized

by Section 450j-l(a). See Varity Corp. v. Howe, 516

U.S. 489, 511 (1996) (noting that the canon that “the

specific governs the general” is “a warning against

applying a general provision when doing so would

undermine limitations created by a more specific provi-

sion”). Moreover, as petitioners concede (e.g., Micco-

sukee Pet. 20), the Secretary would be barred from

paying out funds on a program in excess of the amount

appropriated therefor even if Section 450j-1(b) did not

itself so provide. By interpreting Section 450j-1(b) as

doing no more than to restate that legal rule, peti-

tioners convert it into surplusage in contravention of a

fundamental canon of statutory construction. See

Moskal v. United States, 498 U.S. 103, 109-110 (1990).*

Finally, to the extent petitioners claim that Section

450j-1 distinguishes between the Secretary’s authority

to enter into contracts to obligate funds, and the

Secretary’s authority to distribute funds to satisfy the

contracts (see Miccosukee Pet. 18), the contention is

without merit. The restriction on payment in Section

450j-1(b), the provision that is at issue in this case, is a

required component of every ISDA contract the Secre-

tary enters into. See 25 U.S.C. 450/(a) and (c). It was,

moreover, incorporated into both contracts at issue

here. See Miccosukee C.A. App. 69; Oglala C.A. App.

20. It thus governs the provision of funds under the

ISDA contracts in this case.

4 Petitioners also ignore the canon of construction requiring

that similar statutory phrases be interpreted similarly. In Sec-

tions 450j-1(a) and 450j(c)(2), Congress used the phrase “amount of

funds provided” to refer to the amount of money the Secretary Is

required to pay under ISDA contracts. See pp. 8-9, supra. The

obviously parallel phrase “provision of funds” logically should be

given a similar construction.

12

3. Contrary to petitioners’ assertions, the court of

appeals’ reading of Section 450j-1 of the ISDA accords

with that of the only other court of appeals that has

considered the limits imposed by Section 450j-1(b). In

Ramah Navajo School Board, Inc. v. Babbitt, 87 F.8d

1338 (D.C. Cir. 1996), the court of appeals explained:

Congress clearly included [Section 405j-1(b)] to

make evident that the Secretary is not required to

distribute money [for ISDA CSCs] if Congress does

not allocate that money to him under the Act. * * *

Thus, if the money is not available, it need not be

provided, despite a Tribe’s claim that the ISDA

‘entitles’ it to the funds.

87 F.3d at 1345.

Notwithstanding the clear language of that opinion,

petitioners claim that it is not consistent with the

decision below. In particular, they characterize Ra mah

as distinguishing between the Tribe's right to payment

on the one hand, and the Secretary's authority to dis-

burse money on the other. See Oglala Pet. 15-16;

Miccosukee Pet. 20-21. The D.C. Circuit in Ramah,

however, did not adopt that distinction. To the con-

trary, it held that, “if the money is not available, it need

not be provided, despite a Tribe's claim that the ISDA

‘entitles’ it to the funds.” 87 F.3d at 1345 (emphasis

added). And while the D.C. Cireuit in Ramah also

stated that Section 405j-1(b) does not “excuse the Sec-

retary’s obligation to follow the mandates of the stat-

ute.” that assertion was made in rejecting the govern-

ment’s contention that the Secretary's allocation of

funds among contracting tribal organizations, in the

event of shortfalls like those here, was not judicially

reviewable. 87 F.3d at 1345. Thus, the D.C. Circuit in

Ramah nowhere held that the Secretary is legally

13

liable for breach of contract when reducing payments in

response to an insufficient appropriation. Rather, that

court simply rejected the claim that Congress “in-

tended that any time Congress underfunds [the pro-

gram] by even a small amount, the agency * * * has

virtually unfettered (and unreviewable) authority to

allocate [the appropriated funds] in any way the

Secretary sees fit.” /bid.

Finally, petitioners’ construction of Ramah is quite

difficult to reconcile with the result the court of appeals

ultimately reached in Ramah itself. There, the D.C. ~

Circuit ultimately faulted the mechanism by which the

Secretary had chosen to allocate reductions in CSC

payments, and suggested that the Secretary consider a

pro-rata reduction mechanism (like the one used here)

instead. See 87 F.3d at 1348-1350. But if petitioners

were correct that any CFCs not paid by the Secretary

could be collected through litigation, see Miccosukee

Pet. 16-17, the Secretary’s initial allocation of funds

among Tribes would have been of little moment; re-

gardless of the initial allocation, any organization

receiving less than full payment wouid (in petitioners’

view) be entitled to collect the difference from the

Judgment Fund in any event.

Oglala’s reliance (Pet. 15) upon Ramah Navajo

Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997), is

similarly misplaced. As the court of appeals recognized

here (Oglala Pet. App. All), the Tenth Circuit, in its

Ramah decision, was faced with an entirely different

issue. In particular, the Tenth Circuit was required to

decide whether it was proper, when calculating the

direct cost base for self-determination contracts, to

include state program funds. Nowhere did that decision

purport to address the meaning of Section 450j-1(b), or

14

the propriety of adjusting indirect cost payments in

response to Congress’s refusal to appropriate funds.

Petitioners also err in contending (Miccosukee Pet.

27-28; Oglala Pet. 17-18) that the court of appeals’

decision conflicts with prior decisions of the Federal

Circuit and its predecessor in this area. Relying on

New York Airways, Inc. v. United States, 369 F.2d 743

(Ct. Cl. 1966), petitioners contend that they are entitled

to full funding and payment of their CSCs notwith-

standing congressional appropriation limitations. See,

e.g. Miccosukee Pet. 16 (“[A] faiture by Congress to

appropriate sufficient funds does not limit the govern-

ment’s liability to pay the amounts specified in the

contract.”). The New York Airways case, however,

distinguishes itself. In that case, the government

entered into a private contract that did not limit the

plaintiff's right to payment in the event that Congress

failed to appropriate sufficient funds. Applying the

terms of the contract, the court held the government

liable, since the government had validly entered into a

contract that provided an unqualified obligation to pay.

369 F.2d at 748.

As the court of appeals observed here, the contract in

New York Airways is different from the ISDA funding

agreements at issue in this case. In New York Airways,

the government had an unqualified contractual obliga-

tion: neither the statute authorizing the contract nor

the contract itself limited the government’s obligation

to pay based on the availability (or unavailability) of

appropriations. Unlike the New York Airways con-

tract, the ISDA funding agreements incorporate provi-

sions that condition funding on the availability of ap-

propriations. See 25 U.S.C, 450/(c); Miccosukee C.A.

App. 69; Oglala C.A. App. 20. Moreover, the statute

authorizing the self-determination contracts expressly

15

conditions payment on the availability of appropria-

tions. 25 U.S.C, 450j-1(b).

The remaining cases upon which Oglala relies (Pet.

17-18) are distinguishable for similar reasons. Those

decisions address the relationship between the govern-

ment’s sovereign powers and its capacity to contract,

such as where Congress enacts legislation that abro-

gates the government’s pre-existing contractual obliga-

tions. See Yankee Atomic Elec. Co. v. United States,

112 F.8d 1569, 1573 (Fed. Cir. 1997) (legislation affect-

ing a prior fixed price agreement between the govern-

ment and a provider of uranium enrichment services),

cert. denied, 524 U.S. 951 (1998); United States v.

Winstar Corp., 518 U.S. 8389 (1996) Jegislation altering

prior accounting agreements between the government

and financial institutions). Here, the government’s

appropriations legislation did not abrogate any pre-

existing contractual obligations. Instead, both the

ISDA funding agreements themselves and the statute

that authorized them expressly anticipated the possibil-

ity of insufficient appropriations and provided that such

an insufficiency would affect the amount of payments

made. By funding CSCs up to the limit set by Con-

gress, the Secretary both satisfied the requirements of

the appropriations Acts and fulfilled his statutory and

contractual obligations.

4. Petitioners rely heavily on congressional testi-

mony and reports leading up to the passage of the

ISDA to argue that the legislative history of the ISDA

mandates that the government fully fund CSCs. Oglala

Pet. 6-13; Miccosukee Pet. 13-17. Because the language

of the ISDA is clear, the court of appeals properly

rejected petitioners’ attempt to rely on an imputed

ee intent. United States v. Ron Pair Enters.,

489 U.S. 235, 241 (1989) (Where “the statute’s language

16

is plain, the sole function of the courts is to enforce it

according to its terms.”) (internal quotation marks

omitted); West Virginia Univ. Hosps., Inc. v. Casey,

499 U.S. 88, 98 (1991) (statutory text is the “best evi-

dence” of congressional purpose). Moreover, the rele-

vant legislative history shows that Congress sought to

restrict the Secretary's discretion when Congress

provided sufficient funds; they do not show that Con-

gress sought to restrict its own authority to control the

federal fise by restricting appropriations, especially

since the text of the Act and of the model contract

shows that Congress preserved that latter power.

For similar reasons, the court of appeals properly

rejected petitioners’ invocation (see, e.g., Oglala Pet. 13-

14) of the Indian “Canon of Construction.” That canon

may be used to resolve ambiguities in treaties between

the government and Indian Tribes; it cannot be used to

create ambiguities that do not otherwise exist. See,

e.g., South Carolina v. Catawba Indian Tribe, Inc., 476

U.S. 498, 506 (1986) (canon “does not permit reliance on

ambiguities that do not exist”).

5. Finally, to the extent that petitioners claim that

they have been harmed by their reliance on an expecta-

tion that CSCs would be fully reimbursed, the court of

appeals properly found that such reliance would not be

reasonable. Heckler v. Community Health Servs., 467

U.S. 51, 59 (1984) (defining reliance as reasonable

where “the party claiming the estoppel did not know

nor should it have known” of the eventuality that

arose). The court of appeals reasoned that the plain

text of Section 450j-1(b) as well as the terms of the

model contract, 25 U.S.C. 450/(¢c)—which condition

funding on the availability of appropriations—negate

any argument that reliance was reasonable. Micco-

sukee Pet. App. 12a; Oglala Pet. App. Al2. Moreover,

17

this Court has refused to permit a claim of estoppel

where the award sought “would be in direct contraven-

tion of the federal statute upon which” the plaintiff’s

“ultimate claim to the funds must rest.” OPM v.

Richmond, 496 U.S. 414, 424 (1990). Accordingly, even

if petitioners’ reliance were reasonable, no recovery

could be had.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

DAVID M. COHEN

KIRK T. MANHARDT

WILLIAM G. KANELLIS

Attorneys

APRIL 2000