 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 9, 2016                Decided April 4, 2017

                        No. 16-5117

 NAVAJO NATION, A FEDERALLY RECOGNIZED INDIAN TRIBE,
       NAVAJO NATION DEPARTMENT OF JUSTICE,
                     APPELLANT

                              v.

    UNITED STATES DEPARTMENT OF THE INTERIOR AND
   RYAN ZINKE, IN HIS OFFICIAL CAPACITY AS SECRETARY,
     UNITED STATES DEPARTMENT OF THE INTERIOR,
                        APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-01909)


     Steven D. Gordon argued the cause for appellant. With him
on the briefs were Philip Baker-Shenk and Jessica Farmer.

    John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Mark R. Freeman, Attorney.

   Before: KAVANAUGH and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
                               2

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

    Concurring opinion filed by Circuit Judge KAVANAUGH.

     SENTELLE, Senior Circuit Judge: The Navajo Nation
delivered a proposed funding agreement to the Bureau of Indian
Affairs, an agency within the United States Department of the
Interior, during a partial government shutdown. By law, the
BIA had 90 days after receipt to act on the proposal or it would
be deemed approved. The BIA did not consider the proposal
“received” until normal government operations later resumed,
and issued a partial declination 90 days after that date. The
Nation filed an action to enforce the proposal, contending that
the BIA’s declination was untimely. The district court granted
summary judgment to the DOI, holding that because the Nation
had remained silent when the BIA indicated its position on the
deadline, the Nation was equitably estopped from asserting an
earlier one. The Nation brought the present appeal. We reverse
the judgment.

                       I. BACKGROUND

     Congress enacted the Indian Self-Determination and
Education Assistance Act (“ISDEAA”) to help Indian tribes
assume responsibility for programs or services that a federal
agency would otherwise provide to the tribes’ members. 25
U.S.C. §§ 5301 et seq. The transfer of authority from the
Department of the Interior (“DOI”) to a tribe is memorialized in
a “self-determination contract.” The ISDEAA includes a model
contract specifying a multi-year term, with the funding amount
for each year to be determined during subsequent negotiations
and incorporated through annual funding agreements. Id.
§ 5329(c). When a tribe submits a proposed annual funding
agreement to DOI, “the Secretary shall, within ninety days after
                               3

receipt of the proposal, approve the proposal and award the
contract unless the Secretary provides written notification” to
the tribe that the proposal is declined for one of five reasons
provided by the statute. Id. § 5321(a)(2). “[T]he Secretary may
extend or otherwise alter the 90-day period . . . if before the
expiration of such period, the Secretary obtains the voluntary
and express written consent of the tribe” to do so. Id. “A
proposal that is not declined within 90 days (or within any
agreed extension . . .) is deemed approved . . . .” 25 C.F.R.
§ 900.18.

     In 2012, DOI Secretary Sally Jewell entered into a self-
determination contract under the ISDEAA whereby the federal
government would fund the Navajo Nation’s (“the Nation”)
judicial operations from January 1, 2012 through December 31,
2016. The contract requires the parties to negotiate a separate
funding agreement for each calendar year that it covers.

     On October 4, 2013, the Nation hand-delivered a proposal
to Raymond Slim, an ISDEAA Specialist in the Self-
Determination Office in the Bureau of Indian Affairs (“BIA”)
Navajo Regional Office. Slim marked it for intra-office mail
delivery to Jeanette Quintero, a BIA official that the BIA claims
is responsible for making award and declination decisions for
the Nation’s contracts under the ISDEAA. However, Quintero
was furloughed at that time pursuant to a partial government
shutdown caused by a lapse in congressional appropriations.
Quintero returned to work on October 17, 2013, when normal
governmental operations resumed, and apparently received the
proposal on that date.

     On October 21, 2013—two business days after normal
government operations resumed—the BIA sent a letter to the
Nation acknowledging its receipt of the proposal. The letter
stated that, due to the government shutdown, the BIA considered
                                 4

the proposal to have been received on October 17, 2013. The
letter asserted that the BIA had until “90 days after October 17,
2013 to approve, decline, or award the proposal,” and that this
“90-day period will end on January 15, 2014.” (emphasis in
original). The letter directed the Nation to contact Quintero or
her colleague Frances Price if it had any questions. The Nation
did not respond to this letter.

     On November 7, 2013, the BIA sent another letter to the
Nation, this time identifying substantial changes between the
proposal and the CY 2013 annual funding agreement, including
the fact that the Nation’s requested budget amount had increased
from about $1.3 million to over $17 million. The letter
requested that the Nation respond to the BIA’s concerns by
November 29, 2013, so that the BIA could complete its review
of the proposal, and stated that the BIA would “hold the
approval” of the proposal until the Nation submitted the
requested documents. The letter directed the Nation to contact
Quintero, Price, or their colleague Daniel Largo, Jr., if it had any
questions. The Nation did not respond to this letter.

     If the proposal was properly “received” on the date it was
hand-delivered (October 4), rather than on the date government
operations resumed (October 17), then the 90-day window for
the Secretary to act on it closed on January 2, 2014, rather than
January 15 as asserted by the BIA. But the BIA neither
approved nor denied the proposal by January 2, 2014, nor did it
ever receive the Tribe’s “express written consent” to an
extension of time within which to do so.

     On January 9, 2014, the BIA sent a letter to the Nation
requesting a 45-day extension to the 90-day window. The BIA
stated that it was requesting the extension so that the Nation
could have additional time to respond to the issues raised in the
BIA’s November 7 letter. Again, the letter directed the Nation
                                5

to contact Quintero, Price, or Largo with any questions. The
Nation did not respond to this letter.
     On January 15, 2014—according to the BIA, the last day of
the 90-day window—the BIA sent the Nation a letter partially
declining the proposal. The BIA authorized approximately $1.3
million in funding rather than the approximately $17 million
requested.
     On January 27, 2014, the Nation sent the BIA a letter
asserting that the 90-day review window had actually closed on
January 2, 2014—i.e., 90 days after the Nation delivered the
proposal to the Regional Office. The letter stated that the BIA’s
partial declination was therefore untimely and that the proposal
was automatically deemed approved as a matter of law.
     On February 7, 2014, the BIA sent the Nation a letter
explaining that the partial declination was timely because
delivery of the proposal to Slim did not constitute receipt by the
Secretary as Slim was only authorized to perform work for
contracts relating to road construction during the partial
shutdown. The BIA contended that during the partial shutdown
no BIA employee was authorized to receive or work on the
Nation’s proposal, so the 90-day review period did not begin
until the authorized employees returned to work on October 17,
2013.
    The Nation filed the instant action in November 2014
seeking to enforce the proposal. The district court denied the
Nation’s motion for summary judgment and granted the BIA’s
cross-motion for summary judgment, finding that because the
Nation was silent in response to the BIA’s letters announcing its
position on the deadline for action, the Nation was equitably
estopped from asserting an earlier deadline. The Nation
appealed.
                               6

                        II. DISCUSSION
    A. Receipt

     The BIA asserts that the Nation’s proposal was not
“received” by the agency on October 4, 2013, notwithstanding
that, on that day, the Nation hand-delivered the proposal to an
agency employee at the BIA’s Navajo Regional Office.
Although the district court did not reach this question, it is
nonetheless appropriate for this Court to resolve it. See Proctor
v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308, 325-26 (D.C.
Cir. 1982) (citing Singleton v. Wulff, 428 U.S. 106 (1976)).

     “Statutory construction must begin with the language
employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Mgmt.
Dist., 541 U.S. 246, 252 (2004) (internal quotation marks
omitted). The word “receive” is not defined in the ISDEAA.
Considering the plain meaning of the word, it is difficult to
escape the conclusion that Slim’s unconditional acceptance of
the Nation’s proposal hand-delivered to him on October 4, 2013,
constituted receipt on that day. See Webster’s Third New Int’l
Dictionary 1894 (3d ed. 2002) (defining “to receive” as “to take
possession or delivery of” or “to admit or accept in some
character or capacity”).

    DOI’s “Internal Agency Procedures Handbook for Non-
Construction Contracting Under Title I of the [ISDEAA]”
(“Handbook”) notes that the 90-day deadline for action begins
upon “receipt by the agency.” The Handbook defines “agency”
as “the individual operating divisions or bureaus of . . . the
DOI,” including “offices.” The Handbook, then, suggests that
a proposal’s arrival at any BIA office constitutes receipt. A
subsequent section titled “Receipt of Initial Contract Proposal”
also supports this straightforward reading by suggesting that
                               7

“receipt” immediately precedes the date-stamping of a proposal
upon “arriv[al] in any office.” Indeed, the Handbook notes that
the BIA is required to respond within 90 days of receipt even by
an office without the authority to process proposals. See Yurok
Tribe v. United States Dep’t of Interior, 785 F.3d 1405, 1410-11
(Fed. Cir. 2015) (rejecting the government’s argument that a
proposal must be sent to a particular office within the BIA).

    DOI asserts that Slim was legally incapable of accepting the
proposal on behalf of the Secretary during the partial shutdown
due to the Anti-Deficiency Act (the “Act”). The Act expressly
prohibits agencies from incurring obligations in excess of
appropriations, including the employment of federal personnel
during a lapse in appropriations, such as a shutdown. 31 U.S.C.
§§ 1341(a), 1342. Only excepted or exempted employees may
work during a shutdown. Excepted employees are employees
who are authorized to work on specific assignments to protect
human life and property. Id. § 1342. Exempted employees are
those whose salaries are paid out of a source of funding other
than annual appropriations and therefore are not implicated by
the Act. See Authority for the Continuance of Government
Functions During a Temporary Lapse in Appropriations, 43
U.S. Op. Atty. Gen. 293, 298 (1981); see also BIA Contingency
Plan Q&A Document (Sept. 27, 2013).

    According to DOI, there were no excepted or exempted
employees in the BIA’s Navajo Regional Office authorized to
receive or work on ISDEAA contracts during the government
shutdown. Slim, exempt from the Act because his salary was
funded from multi-year appropriations, was “specifically
authorized to receive or work on contracts related to road
construction” but could not “work on contracts such as the
Navajo Nation’s . . . .” DOI asserts that because no source of
appropriated funds was available for Slim to receive the
proposal on behalf of the Secretary during the partial shutdown,
                                8

it would have been a violation of the Act for him to do so. But
DOI concedes that Slim was permitted to engage in the “de
minimis non-exempt function[]” of “marking the CY 2014
proposal for intra-office mail delivery.” DOI does not explain
how he could have so processed a document not yet received.

      Nevertheless, DOI argues, Slim lacked the authority to
“receive” the proposal on behalf of the Secretary; thus, it
contends, his acceptance of the proposal did not trigger the
regulatory deadlines at issue in this case. However, while “the
Anti-Deficiency Act’s requirements ‘apply to the official,
. . . they do not affect the rights in this court of the citizen
honestly contracting with the Government.’” Salazar v. Ramah
Navajo Chapter, 132 S. Ct. 2181, 2193 (2012) (quoting
Dougherty v. United States, 18 Ct. Cl. 496, 503 (1883)). For
example, although the Act prohibits a government agency from
incurring obligations in excess of appropriations, if the agency
nevertheless obligates itself to spend in excess of appropriations,
it does not cancel the agency’s obligations nor defeat the rights
of other parties. Salazar, 132 S. Ct. at 2193 (citing Ferris v.
United States, 27 Ct. Cl. 542, 546 (1892)); see also Wetsel-
Oviatt Lumber Co. v. United States, 38 Fed. Cl. 563, 570 (1997)
(holding that the Act will not “shield the government from
liability where the government has lawfully entered into a
contract with another party”). Likewise, even if Slim violated
the Act by accepting the Navajo Nation’s proposal, the agency
is nonetheless bound by the consequences of him doing so. In
short, even if DOI’s position were otherwise correct, it would
prove at most that its employee should not have received the
document, not that he did not receive it.

    B. Equitable Principles

    DOI alternatively asserts two equitable principles that it
argues excuse any untimeliness. First, DOI argues that the
                                9

Navajo Nation is equitably estopped from disputing the
timeliness of the declination after remaining silent in the face of
the BIA’s repeated assertions of its position on the matter.
Second, DOI argues that equitable tolling of the 90-day deadline
is appropriate for the period of the government shutdown. We
disagree. Such equitable relief is inappropriate in this case.

     Equitable doctrines are grounded in fairness and justice,
Anglo-Am. Sav. & Loan Ass’n v. Campbell, 13 App. D.C. 581,
603-04 (D.C. Cir. 1898); In re Ionosphere Clubs, Inc., 85 F.3d
992, 999 (2d Cir. 1996), and their application implies the
occurrence of atypical circumstances. Equitable estoppel does
not arise in this case. The government itself has consistently
taken the position that estoppel does not apply against the
sovereign United States. It thus ill-behooves the government to
seek to impose such an uncommon action against another
sovereign, especially one to which it owes a “distinctive
obligation of trust.” Seminole Nation v. United States, 316 U.S.
286, 296 (1942). In its dealings with the Indians, the United
States government “has charged itself with moral obligations of
the highest responsibility and trust. Its conduct, as disclosed in
the acts of those who represent it in dealings with the Indians,
should therefore be judged by the most exacting fiduciary
standards.” Id. at 297.

     Nor does this case present the sort of “extraordinary
circumstances” that justify equitable tolling. See Menominee
Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016)
(holding that circumstances must be sufficiently “extraordinary”
to support equitable tolling). Government stoppages are hardly
unforeseeable. If the government believes it cannot “receive”
documents during a stoppage, it should instruct its employees
not to receive them, rather than expect its citizens and its courts
to “equitably” pretend it has not done so. There is no evidence
in the record that the BIA made any effort to prevent personnel
                               10

such as Slim from “receiving” proposals, or to inform tribes that
it would not “receive” proposals during the shutdown.

      DOI argues that the Court’s holding will lead to “absurd
result[s]”—for example, if a lapse in appropriations lasted
longer than 90 days, any proposals “received” at offices without
excepted or exempt employees authorized to decline them would
be automatically deemed approved during the lapse. Again,
DOI, not its clients, has the authority to instruct its own
employees on what they cannot do. Further, in this case, the
BIA lost only the first 13 of the 90 days it had to act on the
proposal. DOI concedes that the BIA had sufficient time to
review and respond to the proposal by asserting that “the BIA’s
declination analysis did not change after November 7” and the
BIA “could have issued its declination decision at any time after
November 7.” Yet, inexplicably, it failed to do so. The Court
will not reward DOI’s lack of diligence in the name of “equity.”

    C. Award Amount

     Finally, DOI argues that even if the proposal is deemed
approved, the Nation cannot be awarded funds in excess of the
“Secretarial amount.” When a proposal is deemed approved,
“the Secretary shall award the contract or any amendment or
renewal within that 90-day period and add to the contract the
full amount of funds pursuant to section 106(a) of the
[ISDEAA].” 25 C.F.R. § 900.18. DOI argues that because
§ 106(a) provides that the Secretary may decline a proposal if
the amount of funds proposed “is in excess of the applicable
funding level for the contract,” 25 U.S.C. § 5321(a)(2)(D), the
BIA cannot be required to award funding in excess of the
amount of funds the BIA would otherwise have expended on the
particular program or service for the tribe. In short, DOI seeks
to transform the funding floor into a ceiling. This argument has
been oft rejected. See Yurok Tribe, 785 F.3d at 1412 (noting
                                 11

that the statute, “by its clear terms, sets a floor, not a ceiling, on
the amount of money that a Tribe can receive in a self-
determination contract”); Seneca Nation of Indians v. United
States Dep’t of Health & Human Servs., 945 F. Supp. 2d 135,
150-51 (D.D.C. 2013) (noting that the § 106(a) or Secretarial
amount is not immutable and can be increased by the Secretary).
The cited portions of the ISDEAA do not “support the
government’s claim that self-determination contracts are limited
to funding for programs the government currently provides to
the requesting tribe.” Yurok Tribe, 785 3d at 1412-13.

                        III. CONCLUSION

    For the reasons set forth above, the district court’s decision
denying the Navajo Nation’s motion for summary judgment and
granting the BIA’s cross-motion for summary judgment is
reversed.

                                                        So ordered.
    KAVANAUGH, Circuit Judge, concurring: I join the
Court’s opinion. I add this brief concurrence to explicitly state
that equitable tolling may apply in certain government
shutdown situations. The doctrine does not apply on the facts
here, however, because the BIA had plenty of time after it
reopened on October 16, 2013, to meet the 90-day statutory
deadline at issue in this case.
