*2 BRYSON, Before MAYER and REYNA, Judges. Circuit Opinion court filed Circuit Judge REYNA.
Dissenting opinion filed Circuit Judge BRYSON.
REYNA, Judge. Circuit Association, Ltd., Slope Arctic Native (“ASNA”) appeals a decision of the Civil- (“Board”) Appeals ian Board of Contract dismissing ASNA’s breach-of-contract claim under the Contract Disputes Act (“CDA”) as time-barred. Because the CDA’s equitably tolled,
should have re- verse and remand.
I ASNA is an inter-tribal consortium of federally recognized seven tribes situated across the North of Alaska. fis- Miller, Lloyd Chambers, Sonosky, B. cal ASNA con- Sachse, Munson, LLP, &Miller of Anchor- Department tracted with the of Health and theory “the is that Services, government, Indian Health Service Human of administrative remedies is (“IHS”) exhaustion to the Indian Self-Deter- pursuant jurisdictional and that if the remedies have Assistance Act and Education mination *3 exhausted, action re- not been the Court’s Barrow, (“ISDA”) operate hospital in juris- garding the class would be without amended, ISDA, requires the as Alaska. J.A. 137. diction.” con- contractors’ pay tribal i.e., costs,1 that a feder- costs support tract In Judge Hanson of the District incurred but agency would not have al rejected of New Mexico the.Govern- reasonably incur in man- the tribes of administrative reme- ment’s exhaustion govern- When the aging programs. the the class. He argument dies and certified sup- pay the full contract ment refused to explained: tribes, by the the tribes
port sought costs typi- Plaintiffs action does not concern sued. wherein, of dispute cal contract issues If performance need addressed. Landscape
A. Legal case, the ex- purposes were behind the of haustion administrative remedies Navajo Chapter Ramah In the require that the contract claim would district court filed action in federal a class to, of brought first be the attention an damages for in Mexico to recover the New Instead, agency officer. support of contract costs. underpayment challenges policies the Plaintiffs action Babbitt, Navajo Chapter v. Ramah See .adopted by BIA practices the as (D.N.M.1999). Ramah F.Supp.2d 1091 contrary to law seeks being the methodology government’s challenged systemwide make reforms. In such a applicable determine the contract used to this, case as exhaustion of administrative The issue of exhaustion of support costs. required. light of remedies the out- remedies arose at administrative above, necessary is not that each ar- litigation. of the set proposed member class exhaust of the were not of gued that class under its administrative remedies typical representa- while the Contract Act. Disputes rem- tive exhausted administrative added).2 edies, (emphasis other ASNA was showing no J.A. 319 there was According to class member received class members had done so. (i) program expenses 450j 1(a)(2): § direct for the "There shall be costs 1. U.S.C. of— — by operation program required paragraph of Federal that is the added to amount contract, (1) (ii) subject costs which shall consist additional contract of amount for the costs for expense reasonable to the administrative or other related by must be carried on a tribal activities which tribal overhead incurred contractor organization a contractor to ensure com- as operation connection with Federal pliance function, service, with terms contract and of'the activity pursu- program, or (A) prudent management, nor- contract, but funding except ant which — such respective mally are not carried on duplicate any funding provided un- shall not pro- Secretary operation his direct 106(a)(1) (a)(1) [subsec. der of this section (B) Secretary gram; provided by the or are section].” program from re- support of the contracted 6, 2002, expira- those contract.” prior sources other than under December On litigation (a)(3)(A): the Zuni tion of ASNA’s claims in 450j U.S.C. "The —1 years respect with to fiscal eligible for the support costs that are costs an order not- receiving funding the Ramah court entered purposes of under this Act government would resist reimbursing the costs of each shall include of the new certification on at least one and allowable tribal contractor for reasonable flowing partial F.Supp.2d settlement of in Ramah. funds (D.N.M.2006). complaint in Ra- claimed that litigation. plaintiffs Like mah, challenged agency’s prac- improperly sup- IHS calculated contract costs, Ramah, concerning as procedures payout port alleged tices and and failed owed, pay alleged the full amount support costs. sought certify a class Cherokee. Zuni In the second class action—Cherokee “all organizations tribes and tribal con- States —the Nation Oklahoma United tracting with IHS under the be- ISDA February court denied class certification tween 1993 to the present.” fiscal typicality, commonality, 2001 because *4 Id. adequate representation were not met by 2001, since the contracts differed tribe. 199 In December before Zuni moved (E.D.Okla.2001). 357, F.R.D. This ac certification, proceedings for class pay concerned refusal to tribes IHS’s stayed Zuni pending were conclusion full support costs because of appellate proceedings Cherokee. alleged appropriations lack of available was then transferred a different described, class, and the would have lifted, judge. stay gov- After the contractors, ASNA, included like had who portion ernment moved to dismiss yet presented claims to the claims at issue in Zuni tribe officer. Specifically, sought certification had not first submitted all of claims to including “all Indian and tribes officer. district court operating organizations tribal Zuni, [Indian granted F.Supp.2d motion. ... programs Service] Health authorized rejected at 1112. The Zuni’s pur- court paid ... that were not fully [ISDA] ported upon reliance the 1993 certification needs, their contract support costs as de justifying order in Ramah as its failure to Service], termined Indian Health [the remedies, noting exhaust its administrative time between 1988 and the pres hardly that “Plaintiff rely can be said to ent.” Id. at 360. The court later ruled on argument the oblique that a class certifica- merits, decision, the merits not the tion order in a separate case allows Plain- certification, denial of class was appealed forego tiff exhaustion of their Court, which ren this case.” Id. at 1114. 1, dered decision on March 2005. See 2007, In May the district court denied Leavitt, 631, Cherokee Nation v. Zuni’s motion for class certification be- 161 L.Ed.2d cause “exhaustion under the CDA is man- conclusion, reaching this the court did datory jurisdictional” and “the exis- rely or discuss the fact that some tence of unexhausted claims within the tribes exhausted their remedies while putative ju- claims of the class remains a others had not. defect, precluding risdictional class certifi- A third class action—Pueblo Zuni v. cation.” Pueblo Zuni v. United (D.N.M.2007). September United States —was filed on 243 F.R.D. 442-43 Ac- court, in the District Court of New cording Mexico to the district is no “[t]here Hanson, assigned Judge the same for a requirement basis waiver of this granted member, who had any putative class certification for Plaintiff or [both claims] “decertification of is a ber of ... decisions have announced Navajo possibility.” Chapter v. Nor- to the Class’[s] are harmful claims.” ton, (D.N.M.2002). F.Supp.2d Id. The same decision also stated num- "[a] calculation present- ploying illegal the same meth- express mandate given statutory language.” odology Id. that was struck down in ment with the Rarnah. arguments “[t]he court also found IHS district underpayment conditions of the tribal contracts terms and that were similar sufficiently were individualized so that made arguments it to the court Rarnah of whether all tribal contractors question Zuni. underpaid disput- one of
were
becomes
August
year
On
2006—almost a
be-
issues,”
na-
“[t]he
ed
id. at
fore the
court
the motion
denied
individualized
ture of this kind of case with
for class certification Zuni —ASNA filed
litiga-
contracts does not lend itself to class
Board,
complaint
alleging
IHS’s
tion.” Id. at 446.
pay
failure
full contract
correctly.
costs and to calculate the costs
History
B. Procedural
The Board dismissed ASNA’s claims as
putative
it was a
ASNA contends
time-barred, reasoning:
*5
in
ac-
foregoing
class member
the
class
failure to submit
FY
individually
ASNA’s
its
though
tions even
it did not
through FY 1998
to
awarding
claims
the
writing
its claims in
to the con-
they
six
official within
after
ac-
six-year
the
tracting
within
CDA’s
crued,
605(a)
required by
as
section
of
statute of limitations. As will be discussed
below,
deprives
jurisdic-
the CDA
this Board of
in
the
more detail
Federal Circuit
to
tion
consider the claims. We cannot
ultimately
subject
held
the
was
that
ISDA
suspend
running
six-year
the
of the
time
class
equitable tolling,
statutory
to
but not
suspend
limit
more than we could
to
tolling,
action
and remanded the case
the
also
requirements,
found
section
the
to
if the statute of
Board
determine
a claim must be
605 that
submitted to
equitably
be
tolled as to
limitations should
officer,
contracting
claim
the
must
found that ASNA did
ASNA.
Board
in writing,
be submitted
and that a claim
satisfy
equitable tolling
the
criteria.
$100,000
must
excess of
be certified.
erred in that determi-
Whether
Board
In the absence of a claim which meets
question presented
nation is the narrow
of
requirements
all
section
appeal.
this
jurisdiction
appeal.
lack
to consider an
30, 2005, after the Su-
September
On
preme
its
Court issued
decision Chero-
J.A. 32.
kee and while the Zuni class action was
appealed
ASNA
the Board’s decision to
its
pending,
ASNA
CDA
the Federal Circuit. We affirmed the
It
contracting
to the IHS
officer.
is undis-
statutory
regarding
Board’s decision
that,
equitable tolling, these
puted
absent
tolling
equitable
action
but held
toll-
expired
each
of the
of
claims had
as
date
brought
is available for claims
under
presentment
their
offi-
605(a)
the CDA.
We remanded the
cer.
Board for a determination
case
IHS,
argued
In
letter to
ASNA
tolling applied to
whether
ASNA.
IHS failed
meet
contractual
First,
remand, Majority
the Board
obligations
ways.
it
On
statutory
two
had
pay
failed to
the full amount
ASNA’s
found
June
ASNA
Second,
tolling
the criteria for
after
support
contract
costs.
failed
met
it to
reading
requiring
in the
those costs the
Cherokee as
treat
include
calculation of
em-
as a contractor and the contract as
full
costs
ASNA
indirect
—
Nation,
procurement contract.3
ordinary
In U.S. v. Tohono O’odham
conclusion,
-,
Board
reaching this
ob-
According Majority, to ASNA had a appeal jurisdic- This followed. haveWe responsibility investigate applicable the 1295(a)(10). § tion under 28 U.S.C. landscape pursuing its claims and independent to make an and reasoned de- II cision, upon than relying Judge rather Majority Hanson’s court order. already Because have determined pointed out that ASNA had not established may that apply under adversary the conduct caused it § CDA, 605 of the narrow question the statutory to miss the deadlines and deter- presented appeal in this is whether the six- mined that ASNA’s decision could not turn year statute limitations should have on presumed litigation position the of an equitably given tolled as to ASNA opposing party. unique the circumstances the case. Sebelius, Ass’n, Arctic Native Ltd. v. Majority unconvinced (Fed.Cir.2009) 785, (“ASNA 583 F.3d 798 argument special rela- I”). tionship the government between and Indi- an tribes warranted application equita- A. Standard of Review ble As tolling. Majority explained, Where, “[t]he canon that statutes here, should inter- the facts are undis preted puted, benefit of tribe a determination of whether the cri mean that a interpreted statute should be teria for equitable tolling have been met in a manner divorced presents statute’s question a of law we review text purpose.” App. 7107(b); 11a de (citing § novo. 41 U.S.C. Former noting Majority's years 3. It is worth that the inter- after ASNA filed claims with pretation August of Cherokee was issued almost five CDAin
1295 (Fed.Cir. Chao, 586, 592 811 F.2d Prods. Co. v. United Sonoco Employees of 1987)). (Fed.Cir.2004). requires The CDA contractor to 1291, 1295 F.3d 372 the written claim the contract and the CDA B.ISDA officer within six of a claim’s bringing suit. 41 accrual before U.S.C. require the ISDA did not Prior to 7103(a). § of limita pay administrative government to implemented issue tions at here operate tribes incurred to costs Federal Congress passed 1994 when I, F.3d ASNA 583 programs. covered Streamlining Act. Prior Acquisition to the 1988 amendments at 788. The applied no statute of instead of required government, ISDA presentment of claims contractors, pay funds to provide officer. pro of covered expenses administrative amendments). statutory (citing Id. grams. Tolling C.Equitable the CDA amendments made The ISDA concerning Equitable tolling hinges self-de disputes applicable § 450m- equities U.S.C. of the facts and circum particular termination contracts. 1(d). result, self-determination in each As ISDA stances case. See I, decision appeal “permits can adverse 800. It contractors dis modify statutory limit and courts to time Board of Contract when putes appropriate.” Civilian ‘extend relief § Dep’t see 41 or to Appeals, Affairs, U.S.C. Irwin v. Veterans of Federal Claims. See 41 U.S.C. L.Ed.2d 609(a)(1). addition, per Equitable tolling applies the ISDA where “(1) bring proves: claims in district litigant mits contractors to he has been (2) courts, generally relief rights diligently, an avenue of that is his pursuing un extraordinary unavailable to contractors stood in some circumstance *7 I, prevented timely 583 at 789 way filing.” der the CDA. ASNA his and Hol — 450m-1(a)). Florida, -, (citing 25 U.S.C. v. land 130 S.Ct. The L.Ed.2d government and In claims between must equity powers exercise of be made contractors, regulations federal dis basis, case-by-case at equi id. and cussing the CDA defines “claim” as a writ only spar relief is extended typically table by one of the ten demand or assertion ingly. Sec’y v. Health & See Cloer seeking contracting parties payment Servs., Human 654 F.3d 1344-45 certain, money adjustment in a or sum (en banc). (Fed.Cir.2011) Equitable toll terms, interpretation of contract or other ing apply garden variety to claims arising or to the con relating relief under attorney neglect, of excusable such § 2.101. a “claim” tract. 48 C.F.R. While leading miscalculation missed dead satisfy particular language need not use to Holland, line. must requirements, contractor CDA contracting in officer writing submit D.Analysis unequivocal a clear statement argues equitable tolling contracting adequate officer no ASNA gives apply sleep it did not on its of the and amount of the claim. should tice basis reasonably it Contracting rights upon Co. relied Trading Gen. SITCO U.S., (Fed.Cl.2009) class as well as its reasonable Zuni action Fed.Cl. then-existing legal Cleaning interpretation Inc. v. (citing Contract Maint. quired present it need not its claims to landscape to conclude the con- present tracting six-year claims to the officer within the its limita- pre- civil suit in period. questions or file its own order tions The critical are serve its claims. pursued rights diligent- whether ASNA ly though not present even it did government The counters that ASNA then-existing whether reliance on timely diligently failed to take action to landscape deciding in pursue extraordinary and that no rights an “extraordinary constituted circum- doing so. prevented circumstance from sufficient stance” to warrant toll- government, reli- According to the ASNA’s filing deadline. on Ramah ance was misplaced because the CDA’s statute of was Here, the Zuni complaint was filed on in grant- effect the district when court behalf of “all tribal organiza- tribes and Ramah, ed class certification and the tions with IHS under substantially differed ISDA between fiscal years 1993 to the government ar- ASNA’s claims. The present.” parties agree that ASNA gues that it was foreseeable that the Zuni was such tribe and had contracted with certification, class might espe- be denied The during period. ISDA in Cherokee cially proposed since the complaint sought damages for contract (involving nearly identical support underpayments and defective cost ASNA’s), certified, was not and the methodology- calculation same claims —the court Ramah inferred that decertifica- wished to assert. class certifi- light possible was of the new cost description cation did not mention exhaus- claims added to Ramah after certifi- tion of administrative remedies. Zuni granted cation was as to the calculation assigned the same in the same methodology claim. con- district court that certified a similar tends that was no change there in the law class in Ramah involving the same grant because the class certification and held issues that class members did not Ramah hinged the fact the case satisfy requirements have to exhaustion challenged system-wide policies prac- participate the class. tices, therefore, did not concern a typical contract case. The ar- President aware that gues perti- was aware already “ASNA’s claims had succeeded in *8 nent legal landscape because ASNA’s Ramah without ASNA filing its own kept general President “was informed of claims.” J.A. As explained, he litigation activities concerning “[sjince the Zuni case covered all of costs, including ongo- activities claims, I concluded the most ing class action lawsuits.” J.A. 486. efficient course of was to action remain in the Zuni agree case,
We with ASNA that toll- just has as ASNA remained ing the Ramah apply case, should and remand the Board because ASNA’s for proceedings consistent opin- already with this claims had succeeded ion.4 no dispute claims, There is re- filing ASNA without ASNA own and Ramah, Cherokee, lied on the and Zuni filing our appar because own claims could litigation deciding ently it not re- remove ASNA from the new Zuni was 4. We are not bound and decline therefore inee Indian Tribe v. United of Wis. reasoning (D.D.C. 2012) recently employed by follow the U.S. Dist. LEXIS Jan. (refusing apply tolling). a similar court in case. See Menom- reasonably not its administrative Monitoring ber need exhaust and class.”5 Id. to be a of the class.6 proceedings, remedies member applicable legal interpreting taking ac- facts and on which opinions, and circumstances judicial order and based were simi- necessary sleep- Judge not constitute Hanson his order does as to, lar, operative in the class if not identical the facts rights, particularly on one’s com- parties believe and circumstances which the Zuni where who action context plaint given re- based. class members often was We hold they putative are court order during early stages unambiguous existence of main passive repre- specifically addressed the exhaustion litigation allowing named issue and fact that their claims. of remedies press sentatives to by monitoring diligently pursued rights participated the Ramah legal landscape, the relevant ASNA took action to including taking Zuni litigations, reasonable, ac- diligent, appropriate proceeds of settlement receive its share tion as the evolved. landscape stay was from Once Ramah. government fundamentally indicated This result is unfair lifted in challenge holding government filing in Ra- that it would unnecessary complaint put to Zuni IHS on notice of presentment mah that was scope ASNA exact nature and of ASNA’s claims. response, class member. periods put its claims “Limitations are intended to swiftly diligently on notice claims and September defendants of adverse waiting ruling plaintiffs sleeping court on to on their prevent 2005-without Crown, Co., took fur- Cork Inc. v. rights.” issue. ASNA & Seal presentment Parker, filed a steps ther precautionary when Only adequate
complaint
Having
in 2006.
ernment’s Costs to, with, responsibility indi- tionship and costs. No tribes and to the Indian vidual Indian whole”). people Consequently, BRYSON, Judge, dissenting. Circuit government’s conduct
must by most with tribes “the ex- the Indian question us before boils down fiduciary acting standards.” Seminole the Arctic Native whether Associa- 286, Nation v. 316 U.S. United (“ASNA”) diligent in pursuing (1942). 1049, 297, 86 L.Ed. 62 S.Ct. majority breach contract claim. The relationship cru- special especially This was; that it believes I believe that it was ISDA, Congress cial under not. passed promote to facilitate and economic development In- growth amongst generally S.Rep.
dian
No.
tribes. See
I
100-274,
(1987),
at 4-7
1988 U.S.C.C.A.N.
has
held that a liti
(detailing
policies encourag-
federal
seeking
gant
equitable tolling “is entitled
ing Indian self-determination and tribal
(1)
only if
equitable tolling
he shows
development).
economic
Select
recognized
pursuing
rights
Indian
that he has been
his
Committee on
Affairs
dili
(2)
support-
self-determination
gently,
extraordinary
contracts
that some
government
local
services on Indian
way
prevent
circumstance stood in his
—
lands were “essential
success
Florida,
timely filing.”
ed
Holland v.
development
Indian economic
efforts.”
-,
2549, 2562,
S.Ct.
Although
at 7.
not dispositive,
Id.
the ex-
(2010), citing
L.Ed.2d 130
Pace v. DiGu
special relationship
istence of the
be-
418,
glielmo, 544 U.S.
125 S.Ct.
government
tween the
and Indian tribes
(2005).
1299
Utah,
reasonably
party to file
diligent
414 have led a
v.
Construction Co.
Pipe
can
&
officer be
756,
contracting
713
claims with
538,
L.Ed.2d
its
38
U.S.
a dec
they expired. Approximately
in
example of a case which fore
(1974),
an
filed,
complaint
after the Ramah
was
class action ade
timely filing of defective
plaintiffs
Ramah
added new claims
as to individu-
period
limitations
tolled the
members,
those
and Zuni
see
similar to
the Cherokee
class
purported
al claims of
2002,
453,
6,
Ramah
it has
December
n.
111
cases. On
at 96
S.Ct.
noting
that
class action court entered
order
determined that
already been
government
In Arctic
would resist class certification
tolling is unavailable ASNA.
that
on at least one of the new claims and
Secretary
v.
Health
Native Ass’n
Slope
Services,
possi
795
is a
[both claims]
“decertification
& Human
583
(‘Arctic
(Fed.Cir.2009)
I”),
Navajo Chapter
re-
v. Nor
bility.”
(D.N.M.
ton,
F.Supp.2d
jected
claim that it is entitled
ASNA’s
2002).
Cherokee,
And
which involved
expectation
based on its
class action
essentially the
pre
in the
claims
as those
that
be a class member
same
it would
Zuni,
that
relief is
court denied
so
avenue of
sented
district
litigation,
in February
prior
certification
class
closed.
Al
expiration
claims.
II
though the court
that case denied certi
pre
questions
fication because individual
view,
rea-
ASNA did not exercise
my
court
questions,
dominated over class
diligence
protect
rights.
sonable
argued
noted
have,
have,
pre-
ASNA could
should
inappropriate
that certification was
be
claims to the
sented its
proposed
cause the
to ex
“fail[ed]
accrual,
two
within
of their
six
putative class
whose claims
clude
members
First, although ASNA claims
reasons.
in this case are
barred
that it
on the
certification
relied
of limitations.” Cherokee
general statute
two indi-
litigation,
the Ramah
ASNA had
v.
Nation
Okla.
United
cations,
expiration
of the six-
prior to
(E.D.Okla.2001).
F.R.D.
year
period,
that certification
may
unusu-
the class in Ramah
have been
that “[t]he
ASNA nevertheless claims
(1)
court
suggested,
al:
the Ramah
itself
evidence
was
undisputed
claims
as the case evolved and certain
to learn
‘surprised’
(namely,
alleging
claims
were added
deci-
2005 after the
Court’s
[in
full
costs
tribes’
Leavitt,
sion
Cherokee Nation
appro-
that the
paid),
should be
continued
equitable Claimant-Appellant, is contends failure to by its likely prejudiced to be v. basis, even timely but claims on file its Secretary SHINSEKI, K. Eric case, the absence to be the assuming Affairs, Respondent- Veterans trigger right prejudice Appellee. Cnty. Baldwin Wel- tolling. See equitable Brown, 147, 152, come Center No. 2011-7139. (1984) (“Al- L.Ed.2d 196 104 S.Ct. is a factor prejudice absence of
though Appeals, United States Court determining whether the be considered Federal Circuit. apply tolling should
doctrine Nov. 2012. justify such might a factor that once identified, independent it is not an basis is sanctioning invoking the doctrine procedures.”). from established
deviations
Second, toll- argues Indian tribes are
ing is warranted protected plaintiffs.
disadvantaged however, court, reject- specifically has
This that “statutes of argument, noting
ed against applied
limitations are to be in the same manner of Indian tribes litigant seeking legal against any other government.” or relief from
redress Indians v. United
Hopland Band Pomo (Fed.Cir.1988). sum, reasonably dili- I believe that a position would have
gent party ASNA’s offi-
presented its claims period
cer before Moreover, there in this case
expired. “extraordinary circumstances
were no way prevent- stood [ASNA’s]
[that] Holland, timely filing.”
ed I affirm the deci- would therefore holding Board
sion of the
to be time-barred. us, precise entitled to careful consideration. dealing before
dent issue