       In the United States Court of Federal Claims
                                      No. 17-359 L
                               (Filed: December 3, 2018)


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                                    *
WHITE MOUNTAIN APACHE TRIBE, *
                                    *
                  Plaintiff,        *
                                    *
            v.                      *
                                    *
THE UNITED STATES,                  *
                                    *
                  Defendant.        *
                                    *
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                               OPINION AND ORDER

DAMICH, Senior Judge.

         On March 15, 2017, Plaintiff, White Mountain Apache Tribe (“Tribe”), filed a
Complaint alleging that the Government breached fiduciary duties owed to the Tribe
through the mismanagement of trust funds, non-monetary trust assets, and dam
maintenance and repair obligations. On July 14, 2017, the Government filed a partial
Motion to Dismiss, alleging that portions of Count I – Mismanagement of Trust Funds,
and portions of Count II – Mismanagement of Non-Monetary Trust Assets, were time
barred, and that Count III – Mismanagement of Dam Maintenance and Repair, failed to
state a claim upon which relief could be granted.

        On January 5, 2018, this Court issued an Opinion and Order granting-in-part and
denying-in-part the Defendant’s Motion to Dismiss. ECF No. 22. As relevant here, the
Court denied the Government’s Motion to Dismiss for failure to state a claim relating to
Count III, holding that the Indian Dam Safety Act of 1994 (“IDSA”), “created mandatory
duties on the part of the Government through the Secretary of the Interior regarding
maintenance and repair of the dams” on Plaintiff’s Reservation. In addition, the Court
denied the Government’s Motion to Dismiss Count I, granted-in-part the portion
concerning forestry mismanagement and grazing of Count II, and denied-in-part the
Motion as to the remaining portions of Count II.

        On February 2, 2018, Plaintiff filed a Motion for Reconsideration concerning the
Court’s partial dismissal of Count II. On June 19, 2018, the Court granted-in-part
Plaintiff’s Motion for Reconsideration concerning dismissal of the forestry
mismanagement portions of Count II, and denied-in-part reconsideration relating to other
aspects of Count II.

       On October 4, 2018, nine months after the Court denied the Government’s Motion
to Dismiss for failure to state a claim relating to Count III, 1 the Government filed a
Motion to Certify Interlocutory Appeal, seeking certification of two issues concerning
Count III raised in the Court’s January 5, 2018 Order:

   1. Whether the Indian Dam Safety Act of 1994 (“IDSA”), 25 U.S.C. §§ 3801–3804,
      creates a mandatory duty to repair all dams located on Indian reservations by a
      date certain; and
   2. Whether a breach of any mandatory duty imposed by the IDSA to repair all dams
      located on Indian reservations is compensable through money damages.

United States’ Motion to Certify Interlocutory Appeal, ECF No. 43, at 1 (Oct. 4, 2018)
(“Def. Mot.”). 2 On October 30, 2018, Plaintiff filed a Response. Pl.’s Resp., ECF No.
46. On November 20, 2018, the Government Replied. Def.’s Reply, ECF No. 47. This
matter is now fully briefed and ripe for decision.

        For the reasons set forth below, the Court DENIES the Government’s Motion to
Certify Interlocutory Appeal.

       I.       DISCUSSION

       Section 1292(d)(2) of Title 28 governs interlocutory appeal and provides, in
relevant part, that:

            [W]hen any judge of the United States Court of Federal Claims, in
            issuing an interlocutory order, includes in the order a statement that a
            controlling question of law is involved with respect to which there is
            a substantial ground for difference of opinion and that an immediate
            appeal from that order may materially advance the ultimate
            termination of the litigation, the United States Court of Appeals for
            the Federal Circuit may, in its discretion, permit an appeal to be taken
            from such order, if application is made to that Court within ten days
            after the entry of such order.



       1
         This Court notes that the Motion for Reconsideration, which was decided on
June 19, 2018, did not concern Count III.
       2
          In the Joint Proposed Litigation Schedule filed on July 30, 2018, ECF No. 42,
the parties advised that the Government was considering requesting interlocutory appeal
of aspects of the Court’s January 5, 2018 Order and that the litigation schedule adopted
by the Court on February 26, 2018, ECF No. 31, remained unchanged.


                                               2
The decision whether to permit an interlocutory appeal is committed to the “sound
discretion” of the judge who entered the order. See Starr Int’l Co. v. United States, 112
Fed. Cl. 601, 603 (2013) (quoting Petro-Hunt, LLC v. United States, 91 Fed. Cl. 447, 452
(2010)). Courts have long understood that “[i]nterlocutory appeals are reserved for
exceptional or rare cases and should be authorized only with great care as to avoid
unnecessary and piecemeal litigation.” Id. (quoting Jaynes v. United States, 69 Fed. Cl.
450, 460 (2006) (internal citations omitted)); see also Caterpillar Inc. v. Lewis, 519 U.S.
61, 74 (1996) (“[r]outine resort to [section 1292] would hardly comport with Congress’
design to reserve interlocutory review for ‘exceptional’ cases while generally retaining
for the federal courts a firm final judgment rule.”). 3

         Accordingly, to succeed in its motion, the Government must convince the Court
that: (1) there is a controlling question of law; (2) there is a substantial ground for a
difference of opinion on the controlling question of law; and (3) termination of the
litigation might be materially advanced by an immediate appeal. 28 U.S.C. § 1292(d)(2).

               A. Controlling Question of Law

        Under section 1292, “[q]uestions are ‘controlling’ when they ‘materially affect
issues remaining to be decided in the trial court.’” Marriot Int’l Resorts, L.P. v. United
States, 63 Fed. Cl. 144, 145 (2004) (citation omitted); Sokaogon Gaming Enterprise
Corp. v. Tushie-Montgomery Associates, Inc., 86 F.3d 656, 659 (7th Cir. 1996) (“A
question of law may be deemed ‘controlling’ if its resolution is quite likely to affect the
further course of the litigation, even if not certain to do so.”).

        The Government believes that the Court’s holding that “through the IDSA
Congress created mandatory duties on the part of the Government through the Secretary
of the Interior regarding maintenance and repair of the dams on the Reservations,” is
controlling because “[d]ismissal of the dam safety claim would fully and finally resolve
one of Plaintiff’s claims, which plainly would affect the course of the litigation and
accelerate its disposition.” Def.’s Mot. at 5.

        Broadly speaking, as the Court of Appeals for the Federal Circuit might dismiss
Count III, the Government is correct. But, looking at the questions specifically proffered
by the Government for interlocutory appeal, this Court believes that the Government
mischaracterizes the Court’s holding in its January 5, 2018 Order. In that order, the
Court merely decided that the Plaintiff had adequately pled the dam maintenance claim
so as to survive a motion to dismiss. The Court did not, as the Government contends,
hold that “a breach of any mandatory duty imposed by the IDSA to repair all dams


       3
          The language of section 1292(d)(2) “is virtually identical to 28 U.S.C. § 1292(b)
. . . which governs interlocutory review by other courts of appeals.” United States v.
Connolly, 716 F.2d 882, 883 n. 1 (Fed. Cir. 1983) (en banc). “Because the operative
language is identical, the legislative history and case law governing the interpretation of
section 1292(b) is persuasive in reviewing motions for interlocutory appeal under section
1292(d)(2).” Abbey v. United States, 89 Fed. Cl. 425, 429 (2009).
                                              3
located on Indian reservations is compensable through money damages,” and certainly
did not hold that IDSA “creates a mandatory duty to repair all dams located on Indian
reservations by a date certain.” See Def.’s Mot. at 1 (emphasis added).

        Despite the deficiency of the questions proffered by the Government, one of the
Government’s arguments in its supporting brief does seem to have some merit.
According to the Government, any mandatory duties imposed by IDSA cannot be
fiduciary ones because an award of money damages would enrich the Tribe, but would do
nothing to improve the safety of dams on Indian reservations. See Def.’s Mot. at 13–14;
Def.’s Reply at 15–19. In other words, should the Plaintiff ultimately prevail, it is highly
unlikely that the damage award would be used to conduct repairs on the dams, even if
permitted by the Government. But Plaintiff may be able to identify other damages once
discovery is complete. In its claim relating to the improper repair of the Davis Dam, for
example, Plaintiff alleges other damages, namely, lost tourism revenue, lost income from
the sale of hunting and fishing permits, and mitigation costs. Compl. at 18–19.

        Furthermore, the mere fact that a damage award may not directly effectuate a
statute’s purpose does not mean that the statute is not money-mandating. In spent nuclear
fuel cases, for example, Congress provided that the United States Government would
dispose of radioactive nuclear waste generated by utility companies during the energy
production process. See Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101–10270.
Due to the Government’s inability to comply with this mandate, utility companies receive
periodic damage awards for housing the waste at their facilities. See e.g., Dairyland
Power Co-Op. v. United States, 645 F.3d 1363 (Fed. Cir. 2011). Clearly such an award
does little, if anything, to compel the Government to effectuate the safe disposal of
nuclear waste.

        In any event, there is no need to address the Government’s concern in this regard
further, as the Court’s January 5, 2018 Order merely held that the Plaintiff had made a
sufficient showing to avoid dismissal for failure to state a claim. This case is still in its
infancy and should the Government wish to raise the issue again, the Court would be
willing to entertain a dispositive motion on Count III after discovery on that Count is
complete.

               B. Substantial Difference of Opinion

        The second prong of section 1292 requires that there be “substantial grounds for
difference of opinion” with respect to the Court’s order. See 28 U.S.C. § 1292(d)(2).
Courts have found “substantial grounds for difference of opinion” where there are “two
different, but plausible, interpretations of a line of cases,” “splits among circuit courts, an
intracircuit conflict or a conflict between an earlier circuit precedent and a later Supreme
Court case, or . . . a substantial difference of opinion among the judges of [the same]
court.” Klamath Irr. Dist. v. United States, 69 Fed. Cl. 160, 163 (2005) (internal citations
omitted). Further, while “issues of first impression may satisfy the ‘substantial ground
for difference of opinion’ criterion . . . [a]n issue of first impression, standing alone, does
not establish a substantial ground for difference of opinion.” Kislev Partners v. United

                                              4
States, 84 Fed. Cl. 378, 385 (2008) (quoting American Management Systems, Inc. v.
United States, 57 Fed. Cl. 275, 277 (2003)).

        Here, the Government believes that this prong is met because: (1) “[w]hether the
IDSA establishes money-mandating fiduciary duties is an issue of first impression”; (2)
“[t]he United States’ argument that IDSA does not create mandatory duties is well-
supported”; and (3) “[a]ny mandatory duties in the IDSA are not fiduciary duties.” Def.’s
Mot. at 6–10.

         The Court disagrees. First, although the issue of whether the IDSA imposes any
money-mandating fiduciary duty may be one of first impression, it is one of pure
statutory interpretation, which the Court of Federal Claims and trial courts in all
jurisdictions routinely address in the first instance, subject to de novo review. See
Weddel v. Secretary of Dept. of Health and Human Servs., 23 F.3d 388, 391 (Fed. Cir.
1994). Other than being an issue of first impression, the Government has pointed to
nothing “exceptional or rare” about this case sufficient to warrant interlocutory review.
See Starr Int’l Co. v. United States, 112 Fed. Cl. 601, 603 (2013). Second, the
Government’s own belief that its position is “well-supported” does not constitute a
“substantial difference of opinion.” See Kowalski v. Anova Food, LLC, 958 F.Supp. 2d
1147, 1165 (D. Haw. 2013) (“A party’s strong disagreement with the Court’s ruling is not
sufficient . . . .”); Thorndike v. United States, 72 Fed. Cl. 580, 585 (2006) (“A difference
of interpretation among the parties, however, does not [constitute a substantial difference
of opinion].”). Were this the standard, every disgruntled litigant would seek interlocutory
review from an adverse ruling, thereby eviscerating the firm final judgment rule. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996).

               C. Material Advancement of Proceedings

        The final prong of section 1292 requires that immediate appeal “materially
advance” the ultimate termination of the litigation. 28 U.S.C. § 1292(d)(2). Whether this
prong is met “depends in large part on considerations of ‘judicial economy’ and the need
to avoid ‘unnecessary delay and expense’ and ‘piecemeal litigation.’” Nebraska Public
Power Dist. v. United States, 74 Fed. Cl. 762, 764 (2006) (quoting Coast Fed. Bank, FSB
v. United States, 49 Fed. Cl. 11, 14 (2001)). Courts have long held that “[w]hen litigation
will be conducted in substantially the same manner regardless of [the] decision, the
appeal cannot be said to materially advance the ultimate termination of the litigation.”
White v. Nix, 43 F.3d 374, 378–79 (8th Cir. 1994) (citations omitted).

         Discovery on Count III has not yet begun. The Government maintains that
“litigation of the IDSA claim will be complex, expensive, and time-consuming,” and that
discovery on this issue “will thus take many months, at least, and likely cost . . . several
hundreds of thousands of dollars or more to present this issue at trial.” Def.’s Mot. at 15.
While this may be true, the same may be said about most cases that proceed to litigation.
Moreover, as the Plaintiff points out, “the Tribe has limited resources and a limited
number of attorneys to work on this case. Time spent on an IDSA appeal will take time
away [from] proceeding with the litigation of the other claims.” Pl.’s Resp. at 22.

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        Furthermore, while it is true that if the Federal Circuit held that IDSA did not
“establish specific fiduciary or other duties,” United States v. Navajo Nation (Navajo II),
556 U.S. 287, 290 (2009), or that IDSA was not a “money-mandating” statute, Mitchell v.
United States, 463 U.S. 206, 226 (1983), subject matter jurisdiction would be lacking as
to Count III, such a holding would not “materially advance” the remaining issues before
the Court. Aside from Count III, Plaintiff has Count I and portions of Count II
remaining. According to the parties’ Joint Proposed Litigation Schedule, “limited
discovery on the jurisdictional issues” related to the Plaintiff’s Count I and Count II
claims will continue through April 15, 2019. A discovery schedule concerning all other
issues, including Count III, will be submitted on April 30, 2019. See Joint Proposed
Litigation Schedule, ECF No. 30 (Feb. 2, 2018), ECF No. 42 (July 30, 2018). 4

         Finally, although the Government noted that it was considering seeking
interlocutory review in July 2018, it apparently did not consider the issue urgent enough
to warrant a cross-motion when the Plaintiff sought reconsideration of the Count II issues
in February 2018. Instead, the Government waited 9 months from the Court’s January 5,
2018 Order to file this motion. As such, it does not appear that the Government is overly
concerned with immediate review of the Count III issue. Moreover, the Court has already
reconsidered its ruling concerning Count II. With the Government now seeking appellate
review of the ruling on Count III, this case is dangerously close to becoming piecemeal
litigation. Accordingly, the Government has failed to prove that “termination of the
litigation might be materially advanced by an immediate appeal.”

       II.     CONCLUSION

        In sum, the Government has failed to meet its burden of convincing the Court that
interlocutory appeal is warranted in this case. Therefore, the Government’s Motion to
Certify Interlocutory Appeal is hereby DENIED. Should the Government wish to renew
its challenge as to Count III, the Court would be willing to entertain a dispositive motion
on that Count after discovery is complete.

       IT IS SO ORDERED.

                                                             s/ Edward J. Damich
                                                             EDWARD J. DAMICH
                                                             Senior Judge




       4
        The Court adopted the parties’ Joint Proposed Litigation Schedule on February
26, 2018. ECF No. 31. On July 30, 2018, the parties advised that the schedule remained
unchanged despite the Court’s reconsideration of Count II. See ECF No. 42.
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