                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
MENOMINEE INDIAN TRIBE                    )
OF WISCONSIN,                             )
                                          )
      Plaintiff,                          )
                                          )
      v.                                  )                   Case Number 07-cv-0812 (RMC)
                                          )
UNITED STATES OF AMERICA, et al.          )
                                          )
      Defendant                           )
                                          )
__________________________________________)


                                  MEMORANDUM OPINION

               The Menominee Indian Tribe of Wisconsin (the “Tribe” or “Menominee”) returns to

this Court upon remand from the D.C. Circuit, continuing to seek monies from the Department of

Health and Human Services, Indian Health Service (“IHS”) for contract support costs the Tribe

incurred in providing health care services to its members in 1995-2000. In reversing this Court, the

Circuit found that the six-year limitation period for presenting administrative claims, as allowed by

the Contract Disputes Act, 41 U.S.C. § 401, et seq, can be equitably tolled. Menominee Indian Tribe

of Wisconsin v. United States, 614 F.3d 519, 529 (D.C. Cir. 2010) (“Menominee II”) (“We agree that

the statute is subject to tolling and remand for the district court to consider whether tolling is

appropriate in this case.”). The Tribe argues that it is entitled to equitable tolling because: 1) it

reasonably relied on a potential class action brought by other tribes complaining of the same

insufficient payments; 2) it reasonably believed it was a member of the putative class and thereby

was pursuing its claims for contract support costs; and 3) it reasonably believed that, as a member
of the proposed class, it was entitled to suspension of the limitations period during the class

certification period.

               The United States moves to dismiss, or alternatively for summary judgment, arguing

that no equitable tolling is appropriate and that, on the merits, Menominee received all the monies

to which it was entitled or that it waived its rights to seek more. The United States also argues that

the Tribe cannot recover on its 1999 and 2000 stable-funding claim because even if it were not

barred by the statute of limitations, nearly all of the appropriated money was spent. The Tribe

opposes each of these arguments and also moves for summary judgment. The Court will grant

summary judgment to the United States with respect to the 1996-1998 shortfall claims and the 1999

and 2000 stable-funding claim. The Court will deny both parties’ motions with respect to the 1995

shortfall claim.

                                             I. FACTS

               The Menominee Indian Tribe of Wisconsin is a federally recognized Indian tribe and

is eligible to enter into contracts with the United States under the Indian Self-Determination and

Education Assistance Act (“ISDA”), 25 U.S.C. § 450. The ISDA authorizes tribes to execute “self-

determination” contracts with the IHS in order to provide health care programs and other services

to their members that the United States has historically provided. The United States pays tribes the

amounts the federal government would otherwise spend for such health-related programs and

services as well as various administrative costs incurred by the tribes (contract support costs or

“CSC”).

               Each year from 1995 to 2000, Menominee provided health care services to eligible

members pursuant to its self-determination contracts. From 1996 to 2000, the Tribe also signed


                                                 -2-
“Rate Agreements” and “Annual Funding Agreements.”1 The Rate Agreements were negotiated with

the Department of Interior and, according to the Tribe, were used to calculate accurate CSC for the

programs and services the Tribe administered. The Annual Funding Agreements were negotiated

with the IHS and, according to the United States, included all CSC owed to the Tribe.2 For each

year, IHS paid the Tribe the amount of CSC enumerated in the Annual Funding Agreements, but did

not pay the amount of CSC the Tribe says is owed pursuant to the Rate Agreements. Menominee

seeks damages for the unpaid CSC for 1995-2000.

                                            II. LAW

               A. Indian Self-Determination and Education Assistance Act

               Congress enacted the ISDA in 1975 to allow American Indians and Alaska Natives

to contract with the federal government to operate a variety of programs, functions, services, and

activities previously provided by the federal government. See 25 U.S.C. § 450. For instance, the

Secretary of Health and Human Services, through IHS, has provided health care programs to

American Indians. Under the ISDA, an Indian tribe can contract with IHS and administer its own

health care programs and the Secretary pays the tribe both the costs IHS would have expended for

the programs (the “base” or “Secretarial” costs) and CSC.



       1
          In 1995, the Tribe had a Rate Agreement but no Annual Funding Agreement. For that
year, the lump-sum CSC was listed in the self-determination contract and not in a separate
agreement.
       2
          The Tribe contends that there was no negotiation with respect to the Annual Funding
Agreements and that IHS knew that there were insufficient appropriations to pay full CSC for
every eligible tribe and therefore offered a lesser amount on a “take it or leave it” basis. If
additional funds came in, IHS would unilaterally modify the funding agreements and pay the
Tribe more; however, there was never sufficient money to fully pay the CSC as calculated using
the rates in the Rate Agreements.

                                                -3-
               CSC include both direct costs (such as workers’ compensation insurance) and indirect

costs (such as rent, utilities, and payroll for management and administration) that a tribe incurs in

administering its programs. See Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 634 (2005).

Most CSC are indirect and they are “generally calculated by applying an ‘indirect cost rate’ to the

amount of funds otherwise payable to the Tribe.” Id. at 625 (quoting Br. for Federal Parties at 7).

               B. Contract Disputes Act

               In 1978, Congress enacted the Contract Disputes Act (“CDA”) which “establishe[s]

a comprehensive framework for resolving contract disputes between executive branch agencies and

government contractors.” Menominee II, 614 F.3d at 521. As originally enacted, there was no

statutory time limit to bring a contract dispute claim under the CDA. In 1994, Congress amended

the CDA to require that contract disputes be submitted to the contracting officer of the relevant

agency “within six years after the accrual of the claim.”3 See 41 U.S.C. § 605(a). The submitted

claim “need not be elaborate” and can be reflected in letters alone. Arctic Slope Native Association,

Ltd. v. Sebelius, 583 F.3d 785, 797 (Fed. Cir. 2009).

               Once a claim has been submitted, the contracting officer generally has 60 days to

issue a decision. See 41 U.S.C. § 605(c).4 If the decision is unfavorable or not timely issued, the

contractor can appeal the decision to the board of contract appeals within the relevant agency or,

within 12 months, file suit in the United States Court of Federal Claims. Menominee II, 614 F.3d


       3
        The only exception is for a government claim against a contractor involving fraud. See
41 U.S.C. § 605(a).
       4
        If the claim is for more than $100,000, the contracting officer must issue a decision
within 60 days, or notify the contractor of when the decision will be issued. 41 U.S.C. §
605(c)(2). In the latter case, the decision should be issued “within a reasonable time.” Id. at §
605(c)(3).

                                                 -4-
at 521. The present case was brought in the District Court for the District of Columbia instead of

the Court of Federal Claims because the ISDA allows a tribe to bring a contract claim in a federal

district court. Id. at 522 (citing 25 U.S.C. § 450m-1(a)).

                C. Motion to Dismiss

                A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A

complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters

about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059

(D.C. Cir. 2007). If, in considering a Rule 12(b)(6) motion, “matters outside the pleading are

presented to and not excluded by the court, the motion shall be treated as one for summary judgment

under Rule 56.” Fed. R. Civ. P. 12(d); see Holy Land Found. for Relief and Dev. v. Ashcroft, 333

F.3d 156, 165 (D.C. Cir. 2003). Because the Court has considered matters outside of the pleadings,

it will treat the United States’ motion as one for summary judgment.

                D. Motion for Summary Judgment

                Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be

granted “if the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party

who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to


                                                  -5-
establish the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

                In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the nonmoving

party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671,

675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a

reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(citations omitted).

                                          III. ANALYSIS

                On March 14, 2008, this Court granted in part and denied in part the United States’

motion to dismiss. Menominee Indian Tribe of Wisconsin v. United States, 539 F.Supp.2d 152

(D.D.C. 2008) (“Menominee I”). The Court held that the statute of limitations for filing claims under

the CDA barred the 1996-1998 CSC funding claims and that the statute is jurisdictional in nature

and therefore not subject to tolling. Id. at 153-54. The Court also held that the 1995 CSC funding

claim was barred by laches. Id. at 154-55. The Court denied the motion to dismiss with respect to

the 1999-2004 claims because the “ISDA mandates the payment of full indirect CSC. . . ” Id. at 155

(emphasis in original).

                On November 18, 2011, the parties stipulated to the dismissal of the 1999-2004

shortfall claims and Menominee then appealed this Court’s decision. The D.C. Circuit reversed this


                                                  -6-
Court and held that the CDA statute of limitations for filing administrative claims in federal court

is not jurisdictional and is thus subject to equitable tolling. Menominee II, 614 F.3d at 523-25. The

Circuit also held that class action tolling under American Pipe & Construction Co. v. Utah, 414 U.S.

538, 554 (1974), is inappropriate here because Menominee did not timely file an administrative

claim and therefore would not have been part of the class in Cherokee Nation even had one been

certified. Id. at 526-529. While the Circuit held that the CDA may be equitably tolled, it could not

determine whether it should be tolled in this case because the parties disputed relevant facts.5 Id. at

531. The Circuit remanded the case to determine whether equitable tolling is appropriate. Id.

               With respect to laches, the Circuit held that the district court: 1) miscalculated the

length of the Tribe’s delay in submitting a claim; 2) failed to consider the Tribe’s argument that the

delay was reasonable; and 3) relied on insufficient reasons to hold that the government was

prejudiced by the delay. Id. at 531-32. The Circuit remanded for the Court to determine if the 1995

claim is barred by laches. Id. at 531.

               The United States has abandoned it laches argument and instead contends that

equitable tolling is inappropriate; that the Tribe released its 1996, 1997, and 1998 claims; that there

was no breach of contract because the United States paid the full amounts listed in the Annual

Funding Agreements; and that even if there were a breach, Menominee could not recover because

there are no longer appropriated funds for the years at issue. Menominee disagrees, asserting that

equitable tolling is appropriate; that the alleged releases are invalid; that the United States has not



       5
          Although the United States argued that there were disputed facts, it now agrees that “[i]t
is the significance of these facts, and not the facts themselves, that remain in dispute.” Def.’s
Supp. Brief [Dkt. # 48] at 2. The Tribe concurs that there are no material facts in dispute that are
relevant to the question of equitable tolling. Pl.’s Supp. Brief [Dkt. # 47].

                                                 -7-
paid the amount of CSC calculated under the Rate Agreements; and that there were sufficient funds

during the contract years to pay its CSC claims fully so that it is irrelevant if there are not funds

available now.

                 A. Equitable Tolling (1996-1998 CSC Claims)

                 In litigation between private parties, “[f]ederal courts have typically extended

equitable relief only sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). A party

seeking equitable tolling has a “high” hurdle to clear. Smith-Haynie v. District of Columbia, 155

F.3d 575, 579 (D.C. Cir. 1998). “Statutes of limitations are not arbitrary obstacles to the vindication

of just claims . . . . They protect important social interests in certainty, accuracy, and repose.” Cada

v. Baxter Healthcare Corp., 920 F.2d 446, 452-53 (7th Cir. 1990). As such, “[t]he court’s equitable

power to toll the statute of limitations will be exercised only in extraordinary and carefully

circumscribed instances.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988).

                 The Supreme Court recently reaffirmed that a litigant must establish two things for

equitable tolling to apply: “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Tribe argues that it need not meet

this two-prong test because immediately after setting forth this test, the Supreme Court “stressed the

flexible nature of tolling as an equitable doctrine” and that “[e]quitable powers are to be exercised

‘on a case-by-case’ basis rather than according to ‘mechanical rules.’” Pl.’s Opp’n at 17 (quoting

Holland, 130 S.Ct. at 2563).

                 The flexibility emphasized by the Supreme Court, however, dealt with how courts

analyze cases under (not instead of) the two-part rule. Specifically, the Supreme Court rejected the


                                                  -8-
Eleventh Circuit’s mechanical rule that attorney misconduct can never be an “extraordinary

circumstance” justifying equitable tolling absent “bad faith, dishonesty, divided loyalty, mental

impairment or so forth . . . .” Holland, 130 S.Ct. at 2562-63. The Supreme Court’s rejection of a

hard and fast rule to identify “extraordinary circumstances” does not give this Court license to ignore

the necessity for an “extraordinary circumstance.” “[C]ourts of equity ‘must be governed by rules

and precedents no less than the courts of law.’” Id. at 2562 (quoting Lonchar v. Thomas, 517 U.S.

314, 323 (1996)). In other words, the Court should “flexibly” consider: 1) whether the Tribe

diligently pursued its rights, and 2) whether an extraordinary circumstance prevented it from failing

to file a timely claim. The Court has no leeway in the name of “equity” to ignore either factor.

                The Tribe relies on the long history of tribal litigation with respect to CSC to support

its claim for equitable tolling:

                Despite the clear language of the ISDA, both IHS and the Bureau of
                Indian Affairs (“BIA”) have resisted paying full CSC for at least twenty
                years, leading to extensive litigation. In 1991, the Ramah Navajo
                chapter filed a class-action suit against the Secretary of the Interior
                alleging that BIA systematically underpaid indirect costs by using a
                flawed indirect cost rate calculation methodology. Ramah Navajo
                Chapter v. Lujan, No. 90-0957 (D.N.M.) (“Ramah”). The case later
                came to include “shortfall claims” of the kind Menominee raises in this
                case . . . .

                In 1993, Ramah moved for certification of a nationwide class of all
                tribal contractors who had contracted with BIA under the ISDA, and
                Judge Hansen certified the class. . . . [Despite the Government’s
                argument] Judge Hansen held, however, that exhaustion would be
                futile, so “it is not necessary that each member of the proposed class
                exhaust its administrative remedies under the Contract Disputes Act.”
                Id. at 4. The fact that Ramah had timely presented its claims satisfied
                the CDA requirement, and other tribal contractors could participate in
                and benefit from the class action even if they had not separately
                presented their own claims.



                                                  -9-
               In 1997, The Tenth Circuit ruled in favor of Ramah on liability.
               Ramah Navah Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997).
               Settlement discussions ensued [and a partial settlement of $76M was
               approved]. Ramah Navajo Chapter v. Babbitt, 50 Supp. 2d 1091
               (D.N.M. 1999). [Menominee shared in this and a subsequent
               distribution.] . . .

               The Cherokee Nation filed a separate class action against IHS on
               March 5, 1999. Both the class and the claims were nearly identical to
               those in the Ramah case. The Cherokee Nation, like Ramah before it,
               challenged a uniform agency CSC policy . . . . The proposed class was
               defined as “[a]ll Indian tribes and tribal organizations operating Indian
               Health Service programs . . . .” Cherokee Nation of Oklahoma v.
               United States, 199 F.R.D. at
               360 . . . . Given the [Menominee] experience with the Ramah class, it
               relied on the Cherokee class action to represent its claims and it did not
               file its own lawsuit.

Pl.’s Opp’n at 20-21.

               Class certification was denied in Cherokee Nation on February 9, 2001. Cherokee

Nation of Okla. v. United States, 199 F.R.D. 357, 363 (E.D. Okla. 2001). The Oklahoma District

Court later ruled that there was no statutory duty to fund contract support costs fully when there were

insufficient appropriations. Cherokee Nation of Okla. v. United States, 190 F. Supp. 2d 1248, 1260-

61 (E.D. Okla. 2001). Cherokee Nation appealed the latter decision but did not appeal the denial of

class certification. The Tenth Circuit affirmed the district court on appeal. Cherokee Nation of Okla.

v. United States, 311 F.3d 1054 (10th Cir. 2002). That same year, the Ninth Circuit, in Shoshone-

Bannock Tribes v. Secretary, Dep’t of Health and Human Servs., 279 F.3d 660 (9th Cir. 2002), also

ruled that tribes are not statutorily entitled to recover full CSC if Congress has not appropriated

sufficient funds.

               The Federal Circuit disagreed with the Ninth and Tenth Circuits, Thompson v.

Cherokee Nation, 334 F.3d 1075 (Fed. Cir. 2003), and the Supreme Court granted certiorari to


                                                 -10-
resolve this split. Cherokee Nation of Okla. v. Thompson, 541 U.S. 934 (2004). Given the circuit

conflict and imminent review by the Supreme Court, Menominee decided to wait for the Supreme

Court ruling before filing a claim. Although the Tribe was aware of the six year statute of

limitations, it believed the statute was tolled (as in Ramah) by the Cherokee Nation suit. Thus, with

its limited resources, the Tribe opted not to pursue a claim until the Supreme Court decided whether

the government has a statutory obligation to fund fully the CSC contractually agreed to.

               The Supreme Court affirmed the Federal Circuit on March 1, 2005. Cherokee Nation

of Okla. v. Leavitt, 543 U.S. 631 (2005). In so doing, the Court rejected the government’s argument

that it was not required to pay the full CSC enumerated in Annual Funding Agreements. Id. 638-

40.6 Six months later, Menominee filed its administrative claims.

                Menominee argues that given its prior success in Ramah, it was reasonable to wait

for the resolution of the Cherokee Nation case before filing its administrative claim. As part of this

argument, Menominee states that the United States discouraged the filing of claims prior to the

Cherokee Nation decision by the Supreme Court by arguing that tribes who filed claims could not

be part of the Cherokee Nation class. Finally, Menominee argues that the class pleading in

Cherokee Nation was “defective” and thus equitable tolling is appropriate under Irwin v. Dep’t of

Veteran Affairs, 498 U.S. 89 (1990) and American Pipe & Construction Co. v. Utah, 414 U.S. 538

(1974). Id. at 18-19. The Court will address each of these arguments, applying the Holland

framework.



       6
          One notable difference between the agreements in the Cherokee Nation case and those
here is that the CSC listed in Cherokee Nation’s Annual Funding Agreement was unpaid.
Cherokee Nation, 543 U.S. at 635. Here, IHS paid the CSC amount listed in Menominee’s AFA
but did not pay CSC calculated using the rates in the Rate Agreements.

                                                -11-
                        i. Reasonable to wait

                Having previously benefitted from the Ramah case (without filing a claim or suit),

Menominee likewise believed that it would benefit from Cherokee Nation (without filing a claim

or suit). Menominee was aware that it only had six years to file a claim, but assumed that the

deadline would be tolled based upon Cherokee Nation. See Pl.’s Opp’n, Ex. L (Wakau Decl.) ¶ 8.

Menominee points out that it was not until 2005 that it knew that it could get recompensed for CSC

shortfalls, and that it was not until 2010 after Menominee II that it knew it needed to have filed a

claim to benefit from the Cherokee Nation class action. Given this changing legal landscape and its

prior success with Ramah, Menominee argues that it was reasonable to wait for resolution of

Cherokee Nation before filing its administrative claim. Although the Court is sympathetic, the

complete historical facts do not demonstrate that Menominee was diligent in pursuing its claims or

that the lack of clarity in the law was an “extraordinary circumstance” to justify equitable tolling.

                First, Menominee’s focus on the reasonableness of its decision to wait is misplaced.

Although it may have been reasonable, given the circumstances, for Menominee to expect to benefit

from the Cherokee Nation class without filing an administrative claim or attempting to join the

action (a point the Court does not reach), the reasonableness of that decision does not necessarily

mean that Menominee “pursu[ed] [its] rights diligently.” Holland, 130 S. Ct. 2562. Litigants

routinely abandon claims given the costs of litigation, limited financial resources, and/or the

uncertainty of the outcome. If a court equated reasonableness in waiting with diligence in pursuing,

a statute of limitations could be tolled indefinitely, even for litigants who reasonably decide to

abandon their claims. At most, Menominee has demonstrated reasonable inaction, not reasonable

diligence, but the latter is required for equitable tolling.


                                                  -12-
                Second, the factors Menominee has identified (prior class action, uncertain legal

standard, limited resources, etc.) do not, individually or collectively, amount to “an extraordinary

circumstance.” Again, it is common for a litigant to be confronted with significant costs to litigation,

limited financial resources, an uncertain outcome based upon an uncertain legal landscape, and

impending deadlines. These circumstances are not “extraordinary” and are therefore insufficient to

support Menominee’s claim for equitable tolling.

                        ii. Government’s alleged switch of position

                As part of its argument that it was reasonable to wait for the Supreme Court ruling

in Cherokee Nation, Menominee alleges that “[d]uring the Cherokee case, the Government argued

that contractors who presented their own claims should be excluded from the class.” Pl.’s Opp’n at

21 (emphasis in original). Later, Menominee argues that “it was not until after the Supreme Court’s

decision [in Cherokee Nation] that the government argued, for the first time[,] that asserted class

members must first have presented claims to the contracting officer in order to participate in the

class.” Id. at 23. Even looking at the facts in a light most favorable to Menominee, these assertions

are in error.

                First, Menominee’s latter statement is directly contradicted by its own brief.

Menominee admits that when Ramah moved for class certification in 1993, “[t]he Government

argued that the class could not be certified unless each class member had first exhausted its

administrative remedies by filing claims with the agency contracting officer as required by the

Contract Disputes Act.” Id. at 20. Thus, the Government could not have been arguing “for the first

time [after the Cherokee Nation decision in 2005] that asserted class members must first have

presented claims to the contracting officer.” Id. at 23.


                                                 -13-
                Second, the Government did not, in fact, argue “[d]uring the Cherokee case . . . that

contractors who presented their claims should be excluded from the class.” Id. at 21. Instead, the

United States argued that: 1) “[c]ertification of the proposed class would improperly interfere with

the litigation of cases raising similar or related issues in other judicial districts,”7 and 2) “[t]ribes that

have received previous judicial decisions on their claims cannot be included in the class because

their claims would be barred by the principles of res judicata.” Id. at 13 (citing Robertson v.

Isomedix, Inc., 28 F.3d 965, 969 (9th Cir. 1994)). Thus, the United States was arguing that no class

should be certified, not that tribes, by merely filing an administrative claim, would not be allowed

to be part of the class if one were certified.

                Third, and most importantly, the United States’ litigation position throughout these

disputes — even if its position had changed or were inaccurate — does not excuse Menominee’s

failure to file a timely claim. See Moreno v. United States, 82 Fed. Cl. 387, 403 (2008) (“If the fact

that the agency expresses a position which turns out to be incorrect is a warrant for tolling, the

limitations period would be suspended indefinitely.”)

                         iii. Defective pleading

                Menominee claims that equitable tolling is appropriate in this case because of a

“defective pleading” filed in Cherokee Nation. Menominee argues that because the class as pled was

defective under Rule 23, Cherokee Nation filed a “defective pleading” which warrants equitable

tolling here. Pl.’s Reply at 16 [Dkt. # 41]; Pl.’s Opp’n at 19 (the lack of commonality, typicality,

and adequate representation in Cherokee Nation “is a classic defective pleading scenario.”)


        7
        Def.’s Opp’n to Plaintiffs’ Mot. for Class Certification [Dkt. # 88] at 12-13, Cherokee
Nation of Okla. v. United States, No. 99-092 (E.D. Okla. 2000) (citing Califano v. Yamasaki, 442
U.S. 682, 702 (1979)).

                                                    -14-
                 Menominee’s argument ignores the distinction between a defective class and a

defective pleading (such as a complaint in the wrong forum, see, e.g., Burnett v. New York Central

R.R. Co., 380 U.S. 424 (1965)). The former supports class action tolling; the latter supports

equitable tolling. Because there was no defective pleading, Burnett is inapposite and Menominee

cannot rely on it to support equitable tolling. Moreover, Burnett is distinguishable because the

plaintiff in that case pursued its claim by filing a complaint (albeit in the wrong court). In this case,

the Tribe did not file a complaint anywhere within the limitations period.                Accordingly,

Menominee’s reliance on Burnett is further misplaced, and the Tribe’s statement that “it had, in

effect, filed a defective pleading in the wrong court” is incorrect. Pl.’s Reply at 18.

                Menominee’s reliance on American Pipe & Contruction Co. is also misplaced.

American Pipe dealt with class action tolling, not equitable tolling. See Menominee, 614 F.3d at

526-29.8 The Circuit has already made it clear that class action tolling under American Pipe is

inappropriate in this case. See id. Thus, Menominee’s reliance on American Pipe to support

equitable tolling is unavailing.

                        iv. Equitable Tolling Conclusion

                Menominee is correct that equitable tolling is more than just a mechanical application

of the two Holland factors. However, 1) Menominee cannot point to any affirmative act it took in



        8
          Although in passing the Supreme Court suggested that American Pipe dealt with
equitable tolling, Irwin, 498 U.S. at 457-58, Irwin did not address the distinction between class
action tolling and equitable tolling. American Pipe actually dealt with class action, not equitable
tolling. See generally American Pipe, 414 U.S. 538. See also Menominee II, 614 F.3d at 526-
529; Irwin, 498 U.S. at 457 n.3 (citing American Pipe and parenthetically stating “plaintiff's
timely filing of a defective class action tolled the limitations period as to the individual claims of
purported class members.”); cf. Bright v. United States, 603 F.3d 1273, 1287-88 (Fed. Cir. 2010)
(class action tolling and equitable tolling require different analysis).

                                                  -15-
over six years to pursue its claim diligently; 2) filing an administrative claim is a relatively simple

process; 4) there was no affirmative misconduct on the part of the government; and 5) Menominee

does not present any additional facts from which the Court could find equitable tolling aside from

those found insufficient to support class action tolling. Thus, equitable tolling is inappropriate and

the Court will enter summary judgment will on behalf of the United States.

               B. 1995 Claim

               The 1995 claim is not subject to the statute of limitations because the self-

determination contract was executed before there was a statute of limitations in the Contract

Disputes Act. 48 C.F.R § 33.206. Thus, equitable tolling is not applicable to this claim. There are,

however, genuine issues of material fact preventing the Court from granting summary judgment to

either party on this claim.

               First, the cost rate for 1995 is unclear; it is either 13.80% or 12.73%. See, e.g., Def.’s

Reply [Dkt # 38]. Second, Menominee’s damage figures set forth in its reply brief do not match

those in its Complaint. Third, although the parties agree that $827,534 in CSC was carried over from

1995 to 1996, they disagree as to whether this impacts the amount of CSC due in 1995. The effect

of the carry over from 1995 will have to be further briefed before the Court can conclude whether

Menominee is entitled to damages on its 1995 claim.

               C. 1996 Claim

               Because the Court has determined that equitable tolling is unavailable, there is no

need to address each of the government’s alternative arguments for judgment for the 1996-1998

years. The Court notes, however, that Menominee’s 1996 CSC claim would be time barred even if

equitable tolling were appropriate.


                                                 -16-
               Menominee argues that the statute of limitations on its claim for 1996 did not begin

to run until January 1, 1999. It relies on the “common formulation,” Pl.’s Opp’n at 27, that “[a]

claim accrues when damages are ascertainable.” Id. (quoting Patton v. United States, 64 Fed. Cl.

768, 774 (2005) (citations and internal quotations omitted)). Since the 1996 contract did not close

until 1998, Menominee argues that its damages were not ascertainable until then. “Until then, IHS

could have, and did, supplement CSC for prior years in which the contract was in effect.” Pl.’s

Opp’n at 27. The argument is without merit. When the 1996 Annual Funding Agreement ended,

Menominee knew that the government had not paid it full CSC. Once Menominee knew or should

have known that it had a claim for additional contract support costs, the statute of limitations began

to run, even if the precise amount of the underpayment had to be further calculated. See Kinsey v.

United States, 852 F.2d 556 (Fed. Cir. 1988) (“where a claim is based upon a contractual obligation

of the Government to pay money, the claim first accrues on the date when the payment becomes due

and is wrongfully withheld in breach of the contract”); Brighton Vill. Assocs. v. United States, 52

F.3d 1056, 1060 (Fed. Cir. 1995) (claims for breach of contract generally accrue at the time of the

breach).

               Moreover, adopting Menominee’s argument — that a claim for failing to pay under

the Annual Funding Agreement does not accrue until the expiration of the self-determination

contract — could extend the statute of limitations indefinitely. An initial self-determination contract

may last for up to three years. 25 U.S.C. § 450j(c)(1)(A). After the contract has “matured,” (i.e.,

been in force for three or more years without significant, material audit exceptions), a tribe can

choose a longer contract term, including an indefinite term. 25 U.S.C. § 450b(h) and 450j(c)(1)(B).

Thus, if the statute of limitations did not begin to run until after a self-determination contract


                                                 -17-
expired, the limitations period would remain open indefinitely for tribes with an indefinite contract

term. Such a result would eviscerate the statute of limitations without any equitable basis.

Accordingly, the Court finds that the statute of limitations began to run when Menominee’s Annual

Funding Agreements each expired and not when the underlying self-determination contract expired.

               D. 1999 and 2000 Stable-Funding Claim

               Menominee claims that it was underpaid in 1999 and 2000 because the CSC paid to

it were less than the amount it was owed in 1998 (the “stable-funding claim”).9 Menominee’s stable-

funding claim fails, however based upon the law of the case. In Menominee I, this Court dismissed

all of Menominee’s CSC claims prior to 1999 based upon the statute of limitations. See Menominee

I, 539 F.Supp.2d at 153-54; March 14, 2008 Order [Dkt. #15]. The Court did not dismiss

Menominee’s claims from 1999 to 2004. See id. The Court’s opinion and order did not distinguish

between Menominee’s shortfall claims for 1999 to 2004 and its stable-funding claim for 1999 and

2000. See id. The order merely dismissed all claims for contract years before 1999 and left in tact

all claims for years after 1999. See March 14, 2008 Order.

               After the decision issued and the order was entered, Menominee could have continued

to litigate its 1999-2004 claims. Instead, it agreed to voluntarily dismiss these claims in order to

appeal the Court’s dismissal of its 1995-1998 claims. Before doing so, however, the Tribe tried to

preserve its stable-funding claim for appeal. The Tribe stipulated that “[its] third Claim for Relief,

entitled Stable Funding, is premised on alleged wrongs that occurred in 1997” and asked that “the


       9
          Menominee originally based its stable-funding claim on 1997, not 1998. In its current
briefing, however, the Tribe admits that its CSC needs dropped from $404,938 in 1997 to
$383,176 in 1998. See Pl.’s Opp’n at 36-37. Thus, its stable-funding claim is now based upon
what it was owed in 1998 and not 1997. This difference is not material, however, because the
statute of limitation expired for both the 1997 and 1998 claims.

                                                -18-
Court issue a final order explicitly stating that the Tribe’s [stable-funding claim] is barred by the

Statute of Limitations.” Joint Stipulation [Dkt. # 26] ¶ 2. As requested, the Court entered an order,

stating that “[b]ecause the Tribe’s [stable-funding claim] is premised on alleged wrongs that

occurred in 1997, the claim is time-barred for the reasons explained in the Court’s March 14, 2008

Memorandum Opinion.” March 27, 2008 Order [Dkt. # 27]. Thus, going up on appeal, the law of

the case was that Menominee’s stable-funding claim was dependant on whether its claim for 1997

could be tolled.

                On appeal, the Tribe did not challenge the Court’s order that the Tribe’s stable-

funding claim was subject to the statute of limitations for 1997. See Opening Brief of Appellant,

Menominee II. Indeed, it would have been difficult for it to do so given its stipulation that its stable-

funding claim was “premised on alleged wrongs that occurred in 1997." Joint Stipulation ¶ 2.

Having failed to raise the argument on appeal, Menominee’s stable-funding claim continued, on

remand, to rise and fall on whether or not the Court would toll the statue of limitations for either

1997 or 1998.

                In its Motion for Summary Judgment, the United States points out that the Court need

not reach the Tribe’s stable-funding claim if it does not find that equitable tolling is warranted. The

Tribe does not address this argument in its opposition. Instead, it includes a single, conclusory

footnote which states, “[t]he 1999 and 2000 stable-funding claim[] [is] not subject to the statute of

limitations defense.” Pl.’s Opp’n at 33 n.15. The Tribe does not explain why this claim is not

subject to the statute of limitations, nor does it explain how this footnote is consistent with either its

prior stipulation or the Court’s prior order which held otherwise. In any event, whatever merit may

lie with the argument that the 1999 and 2000 stable-funding claim is not barred by the statute of


                                                  -19-
limitations that ran with the Tribe’s 1997 or 1998 shortfall claim, that argument is foreclosed by the

law of the case and has been waived by the Tribe.

               The law of the case simply holds that “when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages in the same case.” Arizona

v. California, 460 U.S. 605, 618 (1983); see also LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.

Cir. 1996) (en banc) (“the same issue presented a second time in the same case in the same court

should lead to the same result.”) (emphasis in original). The Court has previously held (at both

parties’ request) that the Tribe’s stable-funding claim was subject to the statute of limitations based

upon actions in years prior to 1999 and that is the law of the case. This should not be disturbed

especially when, as here, the Tribe had the opportunity to appeal this decision and failed to do so.

See, e.g., Williamsburg Wax Museum v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987)

(“Under the law of the case doctrine, a legal decision made at one stage of litigation, unchallenged

in a subsequent appeal when the opportunity to do so existed, becomes law of the case for future

stages of the same litigation, and the parties are deemed to have waived the right to challenge that

decision at a later time.”) Accordingly, the Court will grant summary judgment in favor of the United

States on the Tribe’s stable-funding claim.10




       10
          Additionally, the Court finds that the Tribe also waived its argument that its stable-
funding claim for 1999 and 2000 is not time-barred by failing to respond to the government’s
argument. See, e.g., Hopkins v. Women's Div., Bd. of Global Ministries, 238 F.Supp.2d 174, 178
(D.D.C. 2002) (“It is well understood in this Circuit that when a plaintiff files an opposition to a
motion to dismiss addressing only certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as conceded.”)

                                                 -20-
                                     IV. CONCLUSION

              Because Menoniminee cannot demonstrate that it is entitled to equitable tolling, the

Court will grant summary judgment to the United States with respect to Menominee’s shortfall

claims for 1996 to 1998 and its stable-funding claim for 1999 and 2000. The Court will deny

without prejudice both parties’ motions for summary judgment with respect to the Tribe’s 1995

claim. A memoralizing Order accompanies this Memorandum Opinion.



Date: January 24, 2012                                   /s/
                                                ROSEMARY M. COLLYER
                                                United States District Judge




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