      In the United States Court of Federal Claims
                           Nos. 12-431L, 12-592L, 13-51X

                             (Filed: November 14, 2019)

************************************** *
GRACE M. GOODEAGLE, et al.,            *
                    Plaintiffs,        *
 v.                                    *
                                       *
THE UNITED STATES,                     *
                    Defendant.         *
************************************** *
QUAPAW NATION (O-GAH-PAH), A           *
FEDERALLY RECOGNIZED INDIAN            *          Judicial Records; Public Disclosure;
TRIBE,                                 *          Settlement Agreement; Trial Court
                    Plaintiff,         *          Discretion; 28 C.F.R. § 50.23;
 v.                                    *          Congressional     Reference     Case;
                                       *          Hearing Officer; Indian Judgment
THE UNITED STATES,                     *          Distribution Act; 25 U.S.C. § 1401.
                    Defendant.         *
************************************** *
THOMAS CHARLES BEAR, et al.,           *
                    Claimants,         *
 v.                                    *
                                       *
THE UNITED STATES,                     *
                    Defendant.         *
************************************** *
Nancie G. Marzulla, with whom were Roger J. Marzulla, Marzulla Law, LLC,
Washington, D.C., Stephen R. Ward, Daniel E. Gomez, R. Daniel Carter, C. Austin Birnie,
Conner & Winters, LLP, Tulsa, Oklahoma, Steven E. Bledsoe, and Lauren Wulfe, Larson
O’Brien LLP, Los Angeles, California, for the Quapaw Nation and certain individual
Plaintiffs.

Terry J. Barker, with whom were Joseph C. Woltz and Robert N. Lawrence, Barker Woltz
& Lawrence, Tulsa, Oklahoma, for certain individual Plaintiffs.
Brian M. Collins, with whom were John C. Cruden, Assistant Attorney General, Frank J.
Singer, Environmental and Natural Resources Division, United States Department of
Justice, Kenneth Dalton, Shani N. Walker, Karen Boyd, Ericka Howard, Dondrae Maiden,
Office of the Solicitor, United States Department of the Interior, and Thomas Kearns,
Office of the Chief Counsel, Bureau of the Fiscal Service, United States Department of the
Treasury, Washington, D.C., for Defendant.

                                  OPINION AND ORDER

WHEELER, Judge.

        These consolidated cases arise out of the Government’s alleged mismanagement of
lands held in trust for members of the Quapaw Nation (O-Gah-Pah). There is no question
that the Plaintiffs’ land, which is now an EPA superfund site, was decimated by decades
of mining operations. The issues presented in these cases were who was responsible for
the destruction of the Plaintiffs’ land, whether they should be compensated for that
destruction, and how much money they were owed. After more than eight years of
litigation in this Court alone, the parties agreed to settle the Goodeagle and Quapaw cases,
and to recommend proposed findings of fact and conclusions of law in the Bear case.

        Now before the Court is the question of whether the parties should be compelled to
file their settlement agreement on the Court’s public docket. For the reasons that are
discussed below, the Court ORDERS the parties to do so.

                                         Background

       These cases have a long and torturous history. A fuller account of their factual
background is available in the Court’s opinion in Goodeagle v. United States, 111 Fed. Cl.
716, 718–720 (2013), and in the parties’ Joint Agreement, Stipulation, and
Recommendation for Proposed Findings of Fact and Conclusions of Law, available at Bear
Dkt. 347. The following facts are relevant to this opinion.

        These cases have been with the Court for more than eight years. The complaint in
Goodeagle was filed on June 28, 2012, on behalf of individual members of the Quapaw
Nation. 1 Goodeagle Dkt. 1. On September 11, 2012, the complaint in Quapaw was filed
on behalf of the Quapaw Nation. Quapaw Dkt. 1. On December 19, 2012, the United
States House of Representatives passed House Resolution 668, referring to the Chief Judge
of this Court a bill, H.R. 5862, entitled “A Bill relating to members of the Quapaw Tribe
1
 The current iteration of Goodeagle is a restatement of claims that were originally filed in this
Court on January 5, 2011, and subsequently dismissed. See Bear v. United States, 112 Fed. Cl.
480, 482 (2013) (citing Goodeagle, 111 Fed. Cl. 716).
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of Oklahoma (O–Gah–Pah).” H.R. Res. 668, 112th Cong. § 1 (2012). Section 1 of the
Resolution states:

       Pursuant to section 1492 of title 28, United States Code, the bill (H.R. 5862),
       entitled “A Bill relating to members of the Quapaw Tribe of Oklahoma (O–
       Gah–Pah),” now pending in the House of Representatives, is referred to the
       chief judge of the United States Court of Federal Claims for a determination
       as to whether the Tribe and its members have Indian trust-related legal or
       equitable claims against the United States other than the legal claims that are
       pending in the Court of Federal Claims on the date of enactment of this
       resolution.

Id. Section 2 of the Resolution contains the proceeding and report instructions to the Court
upon receipt of the bill:

       Upon receipt of the bill, the chief judge shall—

       (1) proceed according to the provisions of sections 1492 and 2509 of title 28,
           United States Code, notwithstanding the bar of any statute of limitations;
           and

       (2) report back to the House of Representatives, at the earliest practicable
           date, providing—

              (A) findings of fact and conclusions of law that are sufficient to
                  inform the Congress of the nature, extent, and character of the
                  Indian trust-related claims of the Quapaw Tribe of Oklahoma and
                  its tribal members for compensation as legal or equitable claims
                  against the United States other than the legal claims that are
                  pending in the Court of Federal Claims on the date of enactment
                  of this resolution; and

              (B) the amount, if any, legally or equitably due from the United States
                  to the claimants.

Id. § 2. The Clerk of the House transmitted H.R. Res. 668 to this Court on January 22,
2013. Bear Dkt. 1.




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       The three cases proceeded in parallel through discovery and motions for summary
judgment, and were originally set for a consolidated trial to begin in October of 2016. 2
Bear Dkt. 109 at 1–2. On the morning trial was set to begin, the parties told the Court that
they were “in active settlement negotiations.” Bear Dkt. 190 at 6–8. Two days later, the
parties reported that they had “reached agreement on all the key settlement terms,” and
requested that the court take all three cases off the trial calendar. See Bear Dkt. 184. By
stipulation of the parties, the settlement discussions and negotiations were confidential.
Bear Dkt. 181 at 2, 182 at 1.

        The settlement negotiations continued until early 2019, but fell apart when a small
group of Plaintiffs refused to ratify a proposed settlement agreement. E.g., Bear Dkt. 290
at 2 & n.2. Trial was reset to begin in September of 2019. Bear Dkt. 294. Two days before
trial was to commence, the parties once again reported that they had “reached an agreement
in principle regarding the key terms of a proposed global settlement of [the Plaintiffs’]
claims in all three of the pending cases.” Bear Dkt. 333 at 2. The parties subsequently
reported that they had finalized their settlement agreement. E.g., Bear Dkt. 344 at 2.

        At the October 24, 2019 status conference in these cases, the Court asked the parties
whether they intended to file their settlement agreement on the Court’s public docket.
While Plaintiffs’ counsel had no objection to doing so, counsel for the Government
objected. The Court invited the parties to file position papers further detailing their views
on this issue. The Government filed its paper on October 30, 2019, and the Plaintiffs filed
theirs on November 5 and 6, 2019. The issue is now fully briefed and ripe for decision.

                                          Discussion

       The Government raises three reasons why the parties should not file their settlement
agreement with the Court. First, the Government argues that the agreement is not a judicial
record. Second, the Government says that the parties took great pains to keep their
settlement negotiations confidential, and that it would be inappropriate for the Court to use
the settlement agreement to inform its report to Congress in the Bear case. Finally, the
Government claims that filing the settlement agreement could trigger the Indian Judgment
Distribution Act, 25 U.S.C. §§ 1401–08. The Government’s arguments are not persuasive.




2
  The Court heard two days of trial testimony in Oklahoma in September of 2016, to accommodate
certain elderly witnesses who would have had a difficult time travelling to Washington, D.C. for
the October trial dates. See Bear Dkt. 106, 186, 188.
                                               4
   A. A Judicial Record

       To determine whether documents related to a case should be publicly available,
courts consider whether the documents are judicial records; if they are, the court then
weighs the public’s right of access against the interests favoring nondisclosure. In re Fort
Totten Metrorail Cases, 960 F. Supp. 2d 2, 6 (D.D.C. 2013). Whether a document is a
judicial record depends on “the role it plays in the adjudicatory process.” United States v.
El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997); see also Anderson v. Cryovac, Inc., 805
F.2d 1, 13 (1st Cir. 1986). When determining whether a document plays a role in the
adjudicatory process, courts consider whether it is “germane” to a judicial decision, has
been submitted to the court, and is “relevant and material” to matters the court is
considering. F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987); see
also United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“[T]he mere filing of a . .
. document with the court is insufficient to render that paper a judicial document . . . . [T]he
item filed must be relevant to the performance of the judicial function and useful in the
judicial process in order for it to be designated a judicial document.”).

       It is true, as the Government argues in its position paper, that the settlement
agreement is distinguishable from the documents at issue in other judicial record cases.
See Goodeagle Dkt. 377 at 3. In a typical judicial record case, the document at issue has
already been filed with the court. See id. (citing In re Fort Totten Metrorail Cases, 960 F.
Supp. 2d at 5). In the instant cases, the settlement agreement has not yet been filed.
However, on the facts of this case, this is a distinction without a difference. The touchstone
of the analysis is not whether the document has been filed with the Court; rather it is
whether it is relevant to the Court’s decision-making process. See, e.g., Amodeo, 44 F.3d
at 145. Here, there can be no question that the settlement agreement that disposed of the
Plaintiffs’ claims in Goodeagle and Quapaw is relevant to the Court’s duties in Bear.

       When it referred Bear to the Court, Congress specifically required that the Court
consider “whether the Tribe and its members have Indian trust-related legal or equitable
claims against the United States other than the legal claims that are pending in the Court
of Federal Claims on the date of enactment of this resolution.” H.R. Res. 668, 112th Cong.
§ 1 (2012) (emphasis added); see also id. § 2. By congressional mandate, then, this Court—
both the hearing officer and the three-judge review panel—must know what claims were
disposed of when the parties settled Goodeagle and Quapaw in order to evaluate the parties’
proposed resolution of Bear. See RCFC App. D 5. Therefore, the settlement agreement is
a judicial record.

       Once a court determines that a document is a judicial record, the decision as to
whether the public should be able to access it is “left to [its] sound discretion . . . , a
discretion to be exercised in light of the relevant facts and circumstances of the particular
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case.” Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)
(quoting United States v. Hubbard, 650 F.2d 293, 316–17 (D.C. Cir. 1980)). In weighing
whether public disclosure is appropriate, courts can consider several factors, including “the
strong presumption of public access to judicial proceedings,” the strength of the privacy
interests involved, and the identity of those objecting to disclosure. See Hubbard, 650 F.2d
at 317–22. If a court is weighing whether to publicly disclose a settlement agreement, and
the “agreement involves issues or parties of a public nature, and involves matters of
legitimate public concern, that should be a factor weighing” in favor of public disclosure.
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994). This is because “in
cases where the government is a party . . . the public’s right to know what the executive
branch is about coalesces with the concomitant right of the citizenry to appraise the judicial
branch.” Standard Fin. Mgmt. Corp., 830 F.2d at 410.

        The facts of this case weigh strongly in favor of public disclosure. To begin with,
it is the Government, not the Plaintiffs, that is opposed to public access to the settlement
agreement. Compare Goodeagle Dkt. 377, with Bear Dkt. 348, and Bear Dkt. 349. The
Government’s sole argument against public disclosure is that it does not believe the
settlement agreement is a judicial record. See Goodeagle Dkt. 377 at 4. As discussed
above, the Court finds that the agreement is a judicial record, so this argument carries no
weight in this part of the analysis. Since the Government raises no other argument against
disclosure, its position is outweighed by the strong presumption of public access to judicial
proceedings and the public’s right to monitor both the Government and this Court. This is
particularly true given the strong public interest in this case. See, e.g., Letter from Tom
Cole, Deputy Whip, U.S. House of Representatives, to Susan G. Braden, Chief Judge, U.S.
Court of Federal Claims (Apr. 11, 2018) (on file with the Court) (“Although Congress has
patiently awaited [progress in these cases] for five years, we now respectfully request that
you complete your review of these pending claims and report back to Congress as requested
forthwith.”); Autumn Bracey, Quapaw Nation Announces $200 Million Trust Settlement
With      U.S.    Government,       KSNF/KODE         (Oct.    25,   2019,      9:54    PM),
https://www.fourstateshomepage.com/news/quapaw-nation-announces-200-million-trust-
settlement-with-us-government/; Settlement of Quapaw Trust Litigation Announced,
Miami News-Record (Oct. 4, 2019, 1:03 PM), https://www.miamiok.com/news/20191004/
settlement-of-quapaw-trust-litigation-announced.

       Department of Justice regulations, too, favor public disclosure. Specifically, 28
C.F.R. § 50.23(a) says:

       It is the policy of the Department of Justice that, in any civil matter in which
       the Department is representing the interests of the United States or its
       agencies, it will not enter into final settlement agreements . . . that are subject
       to confidentiality provisions . . . . This policy flows from the principle of
                                               6
       openness in government and is consistent with the Department’s policies
       regarding openness in judicial proceedings . . . and the Freedom of
       Information Act.

The regulation does allow for “rare circumstances that warrant an exception to this general
rule,” but maintains that “such circumstances must be considered in the context of the
public's strong interest in knowing about the conduct of its Government and expenditure
of its resources.” Id. § 50.23(b). The Government fails to identify any special
circumstances requiring confidentiality in this case, so the public’s strong interest in public
disclosure must win the day.

     In sum, the parties’ settlement agreement disposing of the Plaintiffs’ Goodeagle and
Quapaw claims is a judicial record that the public is entitled to access.

   B. Confidential Negotiations and the Disposition of Bear

        The Government’s next argument has two steps. First, the Government points out
that its settlement negotiations were confidential. Goodeagle Dkt. 377 at 5. Therefore,
says the Government, it would be inappropriate for the Court to “use . . . the final product
of [the] confidential settlement discussions in Quapaw and Goodeagle to inform its
disposition of the Bear case.” Id. The Government’s argument fails at both steps.

       First, it is true that the settlement negotiations were confidential. The Court entered
an order to this effect in September of 2016. See Bear Dkt. 182 at 1. However, the order
applied only to “settlement discussions and communications,” not to the final settlement
agreement. See id. The agreement itself contains no such confidentiality provision. See
Bear Dkt. 348 at 5. Moreover, the Government has not indicated that an Assistant Attorney
General or a more senior Department of Justice official has approved a confidentiality
provision, as is required by 28 C.F.R. § 50.23(b). Thus, while the settlement negotiations
were and are confidential, it does not follow that the settlement itself should be.

       The next step of the Government’s argument is equally flawed. The Government
claims to have “significant concerns” that the Court will make use of the settlement
agreement in preparing its report to Congress in the Bear case. Goodeagle Dkt. 377 at 5.
However, as discussed above, Congress specifically required the Court to consider
“whether the Tribe and its members have Indian trust-related legal or equitable claims
against the United States other than the legal claims that are pending in the Court of Federal
Claims on the date of enactment of this resolution.” H.R. Res. 668, 112th Cong. § 1 (2012).
The Government’s “significant concerns” therefore appear to arise out of a fear that the
Court will follow Congress’s clear mandate: to evaluate the claims in Bear with reference

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to the claims in Goodeagle and Quapaw. The Court, unlike the Government, has no
concerns about following a clear congressional directive.

      The parties’ settlement agreement is not confidential, and the Court is required to
review it in preparing its report to Congress in the Bear case.

   C. The Distribution Act

        Finally, the Government claims that filing the settlement agreement with the Court
could trigger the Indian Judgment Distribution Act “if the Court were to subsequently enter
a judgment based on [the settlement].” Dkt. 377 at 5–6 (citing 25 U.S.C. §§ 1401–08).
This argument is specious and divorced from the facts of this case. As the Government
acknowledges in its position paper, the Distribution Act only applies when funds are
“appropriated in satisfaction of a judgment of the . . . United States Court of Federal
Claims.” § 1401(a). The parties could not trigger the Act merely by filing their settlement
agreement with the Court, because the Act only applies when the Court enters “a
judgment.” Id. The parties have specifically indicated that they will not ask the Court to
enter judgment in Goodeagle and Quapaw. See Bear Dkt. 343 at 6. At no time during the
October 24, 2019 status conference did the Court indicate any intention to enter judgment
in the Goodeagle and Quapaw cases. Nor does it intend to do so now. Therefore, this
argument, too, is without merit.

                                         Conclusion

        For the reasons discussed above, none of the Government’s reasons for opposing
filing the parties’ settlement agreement on the Court’s public docket are persuasive. The
parties are therefore ORDERED to file their settlement agreement with the Court forthwith.
If the parties are concerned that the agreement contains private information about
individuals, they may initially file it under seal. Within seven days of filing the settlement
agreement with the Court, counsel for the parties shall propose any redactions before the
agreement is filed on the Court’s public docket.

       IT IS SO ORDERED.

                                                         s/ Thomas C. Wheeler
                                                         THOMAS C. WHEELER
                                                         Judge




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