LexisNexis 2010-5043

IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

DARRELL BOYE, KIRK SNYDER, LARRY ETSITTY, JR., SARAH HABAADIH, JONES R. BEGAY, JOHNNY PESHLAKIA, RONALD

PLATERIO, REX BUTLER, TYRONE BENALLY, CHALENE BAHE, KENNY JAMES, ROSALYN BENALLY, LEROY BUTLER, LUCY LANE, DALE DENNISON, RANDELL TOMASYO, MARJORIE HENDERSON, PATRICIA YELLOWHAIR, CLINTON CURTIS, HENRY K. MOORE, IRENE SIX, THOMAS ESITTY, GENEVIEVE MORGAN, DARRELL

HARVEY, AND LELAND TOM,

Plaintiffs-Appellants, v.

THE UNITED STATES,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES COURT OF FEDERAL CLAIMS IN CASE NO. 07-CV-195,

Judge Margaret M. Sweeney.

'THIRD CORRECTED" BRIEF OF PLAINTIFFS-APPELLANTS

^«IIIIIBT Tamra Facciola «TfllFÉDERALCiRcuii LAW OFFICE OF EDWARD D piTZHUGH

¿u, „.»vri'ti P.O. Box 24238 fc-h ±é¿.-»w- Tempe, Arizona 85285-4238

(480)752-2200 JANHORBALY

CLERK Attorney for Plaintiffs/Appellants

June 18, 2010

Fonn9

FORM 9. Certificate of Interest

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Boye V- United States

N0 2010-5043

CERTIFICATE OF INTEREST

Counsel for the (petitioner) (appellant) (respondent) (appellee) (amicus) (name of party)

Tamra Facciola certifies the following (use "None" if applicable; use extra sheets if necessary):

1. The full name of every party or amicus represented by me is:

See Attached.

2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is:

None.

3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are:

None.

4. \7] The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are:

Edward D. Fitzhugh, Esq.; Law Office of Edward D. Fitzhugh

(J Date Signature of counsel

Printed name of counsel

Please Note: All questions must be answered cc:

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Edward D. Fitzhugh Law Offices of Edward D. Fitzhugh P.O. Box 24238 Tempe, Arizona 85285-4238 (480) 752-2200 Arizona Bar No. 007138 Attorney for Plaintiffs

OF

IN THE UNITED STATES COURT

APPEALS FOR THE FEDERAL CIRCUIT

individually; ■named man,

DARRELL BOYE, a married man, individually, KIRK SNYDER, a married man, individually; LARRY ETSITTY, SR a single man; SARAH HABAADIH, a single woman; JONES R. BEGAY, a married man, individually; JOHNNY PESHLAKAI, a married man RONALD PLATERIO, a individually; REX BUTLER, a married man, individually; TYRONE BENALLY, a single man; CHARLENE woman; KENNY JAMES individually; ROSALYN ^ENALLY, a single woman; LEROY BUTLER, a married man, individually; LUCY LANE, a married woman, individually; DALE DENNISON, a married man, individually; RANDALL TOMASYO, a married man, individually; MARJORIEIHENDERSON, a single woman; PATRICIA YELLOWHAIR, a single woman; CLINTON C. CURTIS, a single man; HENRY K. MOORE, a single man; IRENE SIX, a single woman; THOMAS ETSITTY, a single man; GENEVIEVE MORGAN, a single woman; DARRELL HARVEY, a angle man; LELAND TOM, a single man; RANDALL J. BLUEHOUSE, a single man; ALVERNON TSOSIE, a feingle man; GILBERT YAZZIE, a single man; KARL ATCITTY, a single man; JONATHON LEONARD, a single man; O.J. WHITE, a single man; JULIAN HENRY, a single man; MARVIN CURLEY a single man; DAREN SIMEONA, a single man; EMMITT YAZZIE, a sing e man; FARRELL BEGAY, a simle man; DAVE M. FRANCISCO, a single man; MONICA BUTLER, a single womap; ELRENS C. HENIO, a single man; PATRICK YAZZIE, a single man; FRANKLIN LEE, a single man; ELAINE NEZ, a single woman;

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DELVIN MILES, a single woman; DARRELL BETONIE, a single man; WILSON HONIE, a singe man; RAMONA I. BEDONIE, i single woman- VERNESSA YELLOWHAIR, a single woman; LESLIEH YAZZIE, a single woman; JOSEPH BEN^LLY, a single man; TIM JOHNSON, a single man; DEAN HADLEY, a singly man; ELOUSIE TSOSIE, a single woman; LORETTA REDHOUSE, a single wpman; ERWIN TODDY, a single man; RENITA BENALLY, a single woman; FELICIA WILLIAMS, a single wonan; LOUIS ANDERSON, JR., a single man; RONALD R. BITAH, a sfngle man; BERNADINE FRANCIS, a single woman; LEON M. MITCHELL, a single man; LAMAR MARTIN, a single man; WALLY WHITEGOAT, a single nan; AMOS BEN, a single man; LEANDER L. MORRIS, a single man; ROY E. LAWRENCE, a single nein; LOUIS P. ORTIZ, a single man; MARTIN PAGE, a single man; STANLEY B. ASHLEY, a single man; DARLENE ANTONIO, a single woman; RICHARD) SHIRLEY, JR., a single man; IRVIN ATtlSON, a single man; LEMAN HARVEY, SR., a single man; ERIK FRANCISCO, a single man; LEROY WILSON, a sing le man; FRANK E. HENRY, a single man; JENNY M. MARTIN, a single woma i; ELROY NASWOOD, a single man; ARNOLD SILVERSMITH, a single man; ALEJANDRO DAYEA, a single man; RON SINGER, a single man; DENISE BILLY, a single woman; ANTONIO COOKE, a married man, individually; EVELYN SMILEY, a sine le woman; MARY FERNANDO, a sngle woman; KATIE BELONE, a single woman; LOUIS ANDERSON, a single man; ESTHER CHARLEY, a married wcjman, individually; LOUIS ST. GERMAINE, a single man; ERNEST D. YAZZIE, a single man; SALVANTIS BEGAY, a single man; ROSINA FO RD, a single woman; OTIS DESIDERIO, a married man, individually; ROBERT H. JAMES, a married man, individually; FREDERICK L. PRICE, a married man, individually;

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RAYMOND K. BARLOW individually; HENRY C married man, individual!^ DALE, a single woman; BILLIE, a married man, TILDEN, a single womanj; DODSON, a married RAYMOND BUTLER, JR individually; JEREMIAH man, individually; and, on other similarly situated Navajo Department of the Navajo Nation,

Plaintiffs/Appellants,

v.

THE UNITED STATES OF AMERICA, a sovereign entity,

DefendantsfAppellees.

a married man, RLATERIO, JR., a

FAYETTA WALLACE individually; KARA

BERNADINE woman, individually;

, a married man, [j)EE, a married

behalf of all employees of the Public Safety and

2010- 5043

IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

DARRELL BOYE, KIRK SNYDER, LARRY ETSITTY, JR., SARAH HABAADIH, JONES R. BEGAY, JOHNNY PESHLAKIA, RONALD

PLATERIO, REX BUTLER, TYRONE BENALLY, CHALENE BAHE, KENNY JAMES, ROSALYN BENALLY, LEROY BUTLER, LUCY LANE, DALE DENNISON, RANDELL TOMASYO, MARJORIE HENDERSON, PATRICIA YELLOWHAIR, CLINTON CURTIS, HENRY K. MOORE, IRENE SIX, THOMAS ESITTY, GENEVIEVE MORGAN, DARRELL

HARVEY, AND LELAND TOM,

Plaintiffs-Appellants, v.

THE UNITED STATES,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES COURT OF FEDERAL CLAIMS IN CASE NO. 07-CV-195,

Judge Margaret M. Sweeney.

"THIRD CORRECTED" BRIEF OF PLAINTIFFS-APPELLANTS

Tamra Facciola LAW OFFICE OF EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285-4238 (480)752-2200

Attorney for Plaintiffs/Appellants

June 18, 2010

TABLE OF CONTENTS

TABLE OF AUTHORITIES 4 I. STATEMENT OF RELATED CASES 6 II. JURISDICTIONAL STATEMENT : 6

A. The Basis for Subject Matter Jurisdiction in the United States Court of Federal Claims 6 B. Basis for United States Court of Appeals' Jurisdiction 8 C. Timeliness of Appeal 8 D. Final Judgment Ruling 9

III. ISSUES PRESENTED FOR REVIEW 9 A. Did the trial court err in ruling that none of the cited "money mandating statutes" can reasonably be interpreted to provide a source upon which Employees may base subject-matter jurisdiction for their claims? 9 B. Third-Party Beneficiary Status 9

1. Did the trial court err in its determination that, despite the specific federal statutes and expressed congressional intent, the recently inserted exclusion provision ("No Third Party Beneficiary") by the BIA in later 638 contracts, was permissible? 9 2. Did the trial court err in its determination that Employees are not intended Third-Party Beneficiaries to the 638 contracts between the Navajo Nation and the United States, regardless of the existence of the exclusion provision contained in some of the contracts at issue? 9

C. Did the trial court err in ruling that the ISDEA unequivocally permits the BIA to contract away its responsibility to provide law enforcement services on reservations, and more specifically, that the BIA was entitled to contract away its responsibility for providing law enforcement services on the Navajo Nation? 9 D. Did the trial court err in ruling that Employees' claims, arising from the ISDEA 638 Law Enforcement contracts, must be pursued against the Navajo Nation in Navajo Tribal Court, requiring that court to determine the legal rights and responsibilities of the parties to the contracts, including the United States?. 10

IV. STATEMENT OF THE CASE 10 A. Nature of the Case 10 B. Course of Proceedings 11 C. Disposition Below 12

V. STATEMENT OF RELEVANT FACTS 13 VI. SUMMARY OF THE ARGUMENTS 16

A. Money-Mandating Provisions 16 B. Duty to provide Law Enforcement Services 17

C. Third Party Beneficiary Status 18 VII. STANDARD OF REVIEW AND RESTATEMENT OF THE ISSUES 19

A. Standard of Review 19 B. Issues for Review 20

VIII. ARGUMENT Z'.'.'.'Z".21 A. The ISDEA and the Indian Law Enforcement Reform Act contain money mandating provisions that fund Employees' claim. Statutory interpretation concludes that either or both of these Acts provide sources of funds to pay Employees' claims 21 B. Third Party Beneficiary Status 25

1. The exclusion provision ("No Third Party Beneficiary") was improperly inserted in the 638 contracts, frustrating congressional intent 25 2. Employees are intended third party beneficiaries to the contracts regardless of the exclusion provision 26

C. Under the ISDEA, the BIA may not contract away its responsibility to

provide law enforcement services to Indians living on reservations. More

specifically, the BIA may not contract away its responsibility for providing law

enforcement services on the Navajo Nation 31

D. Employees' claims arise from ISDEA 638 Law Enforcement contracts, a matter over which the Navajo Tribal Court may not exercise jurisdiction, in that it would require the Navajo Tribal Court to determine the rights and responsibilities of the parties to the contracts in which U.S. is a signatory 34

DC. CONCLUSION 35 CERTIFICATE OF FILING 37 NOVEMBER 12, 2009 ORDER FROM FEDERAL COURT OF CLAIMS 38

TABLE OF AUTHORITIES

Cases Big Owl v. United States, 961 F. Supp. 1304 (S.D. 1997) 29 Boye v. United States, 90 Fed.Cl. 392 (2009) 13 Bradley v. Chiron Corp., 136F.3

Other Authorities 25 CFR § 12, etseq 16 25CFR§ 12.62 "„'.'..24 25 CFR §§12.33 and 12.34 6 25 CFR §§12.33, 12.34 23 Indian Tucker Act 22 The Indian Law Enforcement and Reform Act 6 Tucker Act 6,22

Rules RCFC 12(b)(1) 12 RCFC 12(b)(6) 8, 12, 13

I. STATEMENT OF RELATED CASES

Appellants are not aware of any related cases pending in this or any other court.

H. JURISDICTIONAL STATEMENT

A. The Basis for Subject Matter Jurisdiction in the United States Court of Federal Claims.

In the Court of Federal Claims, Plaintiffs/Appellants (hereinafter

"Employees") asserted, as the basis for subject matter jurisdiction, the Tucker Act,

28 USC § 1491(a)(1). Employees subsequently cited multiple statutes which could

fairly be interpreted as "money mandating" applicable to satisfy these claims

including: 1) The Indian Self-Determination and Educational Assistance Act

("ISDEAA" herein termed "ISDEA"), 25 USC § 450, et seq., specifically, 25 USC

§ 450(f); and 25 CFR §§12.33 and 12.34, with the accompanying Congressional

Statements of intent contained in the historical and statutory notes; 2) The Indian

Law Enforcement and Reform Act, 25 USC § 2801, et seq., specifically 2802-

2808; and 3) judicial interpretation of the intent of these Acts, collectively or

individually. Each of these provide for payment of Employees' claims as

anticipated expenses under the contracts. Samish Indian Nation v. United States,

419 F.3d 1355, 1364 (Fed.Cir. 2005) citing Pern v. United States, 340 F.3d 1337,

1342-43 (Fed. Cir. 2003). See also U.S. v. Testan, 424 U.S. 392, 400 (1975); U.S.

v. Mitchell, 463 U.S. 535, 538 (1983); Eastport SS Co. v. U.S., 178 Ct. Cl. 599, 372

R.2d 1002, 1009 (Ct. CC 1967).

Employees' claims are based on contracts (hereinafter "638 Law

Enforcement contracts" or "638 Contracts") between the Navajo Nation and the

Department of the Interior- Bureau of Indian Affairs (hereinafter "DOI - BIA").

The BIA may enter into these contracts on behalf of the United States under

authority of the ISDEA, commonly referred to as 638 Law Enforcement contracts.

The Court of Claims has acknowledged that implementing the broad scope

of the ISDEA necessarily results in economic claims arising from performance of

the contracts contemplated by the Act. See Carlow v. United States, 40 Fed.Cl. 773

(1998). (holding that expenses for rental of heavy equipment in a 638 Road

Building Project were foreseeable and compensable).

Employees, as third party intended beneficiaries to these 638 contracts,

assert that they may pursue their claims against the United States. The Court of

Claims has, on several occasions, recognized the equitable remedy of third-party

beneficiaries to enforce rights pursuant to contracts with the United States in which

the claimants have a reasonable expectation of payment. Carlow dealt with third

party beneficiary status in the context of contract based on the ISDEA. See id.

The Indian Law Enforcement Reform Act (1990) was subsequently enacted

with the ISDEA in mind. The Indian Law Enforcement Reform Act codifies the

BIA's historical duty to provide law enforcement on Indian reservations. This Act

allows for the BIA to enter into 638 law enforcement contracts to permit Indian

Tribal entities to administer law enforcement programs and authorizes payment for

such expenses. 25 USC § 2802-08. Consequently, the Indian Law Enforcement

Reform Act provides for payment of costs incurred by the Secretary of the Interior

(hereinafter "Secretary") in either directly providing law enforcement on

reservations or paying the costs to provide Law Enforcement pursuant to an

ISDEA authorized contract. In this case the Navajo Nation is paid by the Secretary

for its costs in performing law enforcement on the Reservation.

Either collectively or separately, both Acts contemplate that the type of

claim (wages) Employees assert may arise. Employees seek only to be

compensated at the rate both Acts specifically provide for. It is undisputed that

Employees have not been paid at the rate stated in contracts described herein.

B. Basis for United States Court of Appeals' Jurisdiction.

This Court has jurisdiction pursuant to 42 USC §300aa-12(f). In appeals

from decisions from the Court of Claims granting a Motion to Dismiss based on

RCFC 12(b)(1), this court reviews such appeals de novo.

C. Timeliness of Appeal.

Employees timely appealed from the Court of Federal Claims' order entered

on November 12, 2009.

D. Final Judgment Ruling.

This appeal is made from a final judgment pursuant to 28 USC §1295,

disposing of all of Employees' claims, entered by the Court of Federal Claims on

November 12, 2009.

ffl. ISSUES PRESENTED FOR REVIEW.

The issues presented for review are:

A. Did the trial court err in ruling that none of the cited "money

mandating statutes" can reasonably be interpreted to provide a source upon which

Employees may base subject-matter jurisdiction for their claims?

B. Third-Party Beneficiary Status.

1. Did the trial court err in its determination that, despite the

specific federal statutes and expressed congressional intent, the recently inserted

exclusion provision ("No Third Party Beneficiary") by the BIA in later 638

contracts, was permissible?

2. Did the trial court err in its determination that Employees are

not intended Third-Party Beneficiaries to the 638 contracts between the Navajo

Nation and the United States, regardless of the existence of the exclusion provision

contained in some of the contracts at issue?

C. Did the trial court err in ruling that the ISDEA unequivocally permits

the BIA to contract away its responsibility to provide law enforcement services on

reservations, and more specifically, that the BIA was entitled to contract awav its

responsibility for providing law enforcement services on the Navajo Nation?

D. Did the trial court err in ruling that Employees' claims, arising from

the ISDEA 638 Law Enforcement contracts, must be pursued against the Navajo

Nation in Navajo Tribal Court, requiring that court to determine the legal rights

and responsibilities of the parties to the contracts, including the United States?

IV. STATEMENT OF THE CASE

A. Nature of the Case.

Employees are police officers and criminal investigators employed by the

Navajo Nation. The Navajo Nation and the United States, pursuant to the ISDEA,

entered into what is described as a 638 Law Enforcement Contract.

This breach of contract case asserts that the United States has not complied

with its indisputable responsibility to compensate these Employees at the statutory,

regulatory and contractually mandated rate. The Employees' rate was specifically

set by federal statutes and reiterated in the DOT s related CFR's. While identical in

content, there are two 638 Law Enforcement contracts, one entitled Law

Enforcement and the second entitled Criminal Investigation. Employees are patrol

officers and criminal investigators of the Navajo Department of Public Safety

("NDPS"). Both contracts contain identical provisions (Section 106) requiring

Employees' rate of pay to be the same as their BIA employed counterparts.

10

Employees have been deprived of contracted pay rates as required by various laws

and regulations. Their complaint seeks payment of the difference between the

actual rate of pay they receive (which is substantially lower) and the rate of pay the

Employees' are required to receive, the mandated BIA pay scale.

B. Course of Proceedings.

Employees' initial cause of action arose in the United States District Court

for the District of Arizona in 2002. (This date is extremely relevant. In response to

this lawsuit, the BIA did not determine why Employees were not paid at the

required rate or even determine why its contract monitoring and enforcement

practices had failed. Instead, the BIA recently added to these 638 Law

Enforcement Contracts a provision that no claims could be asserted by these same

people who were being short-changed in violation of federal law).

It was undisputed that the District Court had no jurisdiction over the Navajo

Nation in this lawsuit. In an act of sophistry, the employer United States who

prepared and signed these contracts, moved for dismissal in the District Court

under Rule 19, pointing out that the other signatory to the contract, the Navajo

Nation, was not a party, therefore the District Court could not exercise jurisdiction

over these Employees' claims. The District court dismissed the case. These

Employees never had an opportunity to even establish a record that the United

ii

States is the only entity responsible and ultimately liable for their claims arising

from these contracts.

An appeal was taken from that decision. The United States Court of

Appeals for the Ninth Circuit affirmed the District Court's dismissals. Dismissal

in those cases was based solely on jurisdictional grounds. Subsequent to that

decision, the District Court issued a qualified denial of Plaintiffs' Motion for Relief

from Judgment, denying the motion for new trial "without prejudice to the filing of

a new case."

Because the prior actions were dismissed "without prejudice to the filing of

a new case" by the district court and recognizing that their claim more

appropriately should be filed with the United States Court of Federal Claims, these

Employees filed their lawsuit.

Defendant United States filed a Motion To Dismiss this lawsuit based on

RCFC 12(b)(1); lack of subject matter jurisdiction, and RCFC 12(b)(6); failure to

state a claim upon which relief can be granted. Employees filed their Response.

The court permitted Employees to conduct limited discovery with regard to the

contracts. The court heard oral argument on November 9, 2009.

C. Disposition Below.

The trial court granted Defendant United States' Motion to Dismiss

Employees' claims based solely on RCFC 12(b)(1). The trial court reiterated its

12

finding that the Navajo Tribal court should exercise subject matter jurisdiction and

Employees could pursue their claims in that court. Judgment was entered against

Employees. Published at Boye v. United States, 90 Fed.Cl. 392 (2009).

V. STATEMENT OF RELEVANT FACTS

Employees are current and former police officers and criminal investigators

employed by the NDPS, an agency of the Navajo Nation. The Navajo Nation

encompasses portions of three different states and a number of adjacent state

counties. The NDPS employs in excess of seven hundred employees which

include police officers, criminal investigators, and support personnel. Appendix

("appx") p. 15, fii. 1; docket #10.

Historically, for over a century. Congress imposed on the BIA the duty to

provide a number of basic services, such as law enforcement, to residents of the

reservations. 25 USC §2801 et seq. This Act authorizes the BIA to contract with

tribes to administer Law enforcement through ISDEA 638 contracts. Id.

Recognizing the evolution of the status of Indian Tribes, and an

acknowledgement that tribal entities would continue to evolve. Congress enacted

the ISDEA ("the Act") as an interim measure. The Act was passed as a means to

provide the BIA authority to develop tribal institutions to provide basic services on

the reservations. Presumably, Congress, exercising its plenary authority, at a later

date, will determine when legal responsibility to provide such services will be

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transferred from the DOI-BIA to tribal institutions. The BIA's duty is to assist in

tribes' development of institutions to insure that tribes are able to provide the level

and quality of service Congress has required the BIA to provide to American

Indians. See generally docket # 10.

The BIA and the Navajo Nation entered into 638 law Enforcement Contracts

to allow the Navajo Nation to administer police and criminal investigation services

on its reservation. The contracts are awarded for multiple-year terms but amended

on an annual basis for funding purposes. Each contract and annual amendment

incorporates the Model Contract (prepared by Congress as an adjunct to the

relevant statute), an Annual Funding Agreement and a Statement of Work. All the

documents were prepared by the BIA. The contracts contain provisions mandated

by Congress and detailed in the model contract. The Annual Funding Agreements

state that the Navajo Nation will perform Law Enforcement within the Navajo

Reservation in accordance with the detailed Statement of Work, and the terms and

provisions of the contracts. See generally Docket #10

The Congressionally imposed provisions of 638 Law Enforcement Contracts

direct every facet of NDPS' law enforcement operations. Their all-encompassing

scope reflects the BIA's continuing statutory responsibility to provide law

enforcement services on the Navajo reservation and commensurate duty to ensure

that the statutory required standards of service be maintained.

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The contracts sub-parts also include: Agreement between the Secretary and

the Navajo Nation; Scope of Work - Law Enforcement; Scope of Work - Criminal

Investigations; and an Annual Funding Agreement. An over-arching detailed

requirements of the contracts reflect that the service be performed at the same level

the BIA had provided and the Employees would be paid the same rate as their BIA

counterparts. These detailed requirements include that NDPS law enforcement be

performed "in accordance with the qualifications, training, code of conduct,

inspection and evaluation and other standards applicable to Bureau Law

Enforcement and criminal investigation personnel..." Docket # 7, Exhibit 3 Sect.

102, Docket 7,Exhibit 4, Sect. 102 A-F; They specify training requirements

comparable to BIA standards, Docket # 7, Exhibit 3, Sect 103, Exhibit 4, Sect. 103.

The contracts include a detailed description of the officers' duties Docket # 7,

Exhibit 3, Sect. 101, Exhibit 4, Sect. 101. The contracts require that officers and

criminal investigators be certified by the BIA as federal law enforcement officers

or criminal investigators Docket # 7, Exhibit 3, Sect. 104, Exhibit 4, Sect. 104.

They list the comparable amount of the uniform allowance Docket #7, Exhibit 3,

Sect. 105, Exhibit 4, Sect. 105; and, establish that law enforcement officers and

criminal investigators must be paid salaries at least the same (or greater) than the

salaries paid to their counterparts employed bv the BIA with similar

responsibilities Docket # 7, Exhibit 3, Sect. 106, Exhibit 4, Sect. 106.

15

As one means of aiding the BIA in its continuing duty to monitor and

enforce these standards the contracts detail all records that must be maintained

Docket #7, Exhibit 2, Sect. 7 and other means for the BIA to insure that NDPS

operations are conducted in the required manner. The terms state that the BIA has

unlimited access to all records related to NDPS operations and authority to conduct

periodic inspections of NDPS operations, Docket # 7, Exhibit 2, Sect.7. These

mandatory contract terms are required by law as outlined in 25 USC § 450(L) and

25 CFR § 12, et seq. The BIA has authority to suspend or terminate the contract

based upon the NDPS' failure to meet standards or adhere to the terms of the

contracts, 25 USC § 450(h)(L), regarding the level and quality of service the BIA

must provide either directly or through its contractor, the NDPS.

VI. SUMMARY OF THE ARGUMENTS.

A. Money-Mandating Provisions.

Employees filed their cause of action on the basis that they are not being

paid at the rate detailed in distinct provisions included in the 638 Law Enforcement

Contracts. This mandatory provision is required by statute and DOI-BIA's own

CFR's recognizing this provision was required to be included in the contracts.

Additionally 25 USC §450(a)(l) delineates a Model Contract, the terms of which

(including the same pay provision) must be incorporated in 638 Law Enforcement

16

Contracts. Appellee has never acknowledged or denied that these Employees were

the employees specifically referenced by the pay provision.

The courts have interpreted the ISDEA as a money mandating source so

long as the claim is based on a ISDEA authorized contract. See The Indian Law

Enforcement Reform Act. That Act has a specific provision for payment of

expense the secretary incurs directly or indirectly providing Law enforcement on

Indian Reservations. Id.

B. Duty to provide Law Enforcement Services.

In passing the ISDEA Congress repeatedly made it clear that the "Act" in no

way eliminated or modified the government's historical responsibilities to

American Indians. The ISDEA was intended to enable the BIA to assist Indian

tribes in establishing institutions that, on some date yet to be determined, Indian-

established institutions can assume responsibility for providing these services and

directly receive their funding. Today the BIA, as it applies to law enforcement, is

responsible for ensuring the NDPS functions according to specific Congressionally

established standards. The NDPS receives its funding from the BIA which in turn

receives monies for this specific program under both the ISDEA and the Indian

Law Enforcement Reform Act, 25 USC §2801, et seq.

17

C. Third Party Beneficiary Status.

Employees submitted relevant federal statutes Congressional

pronouncements, the ISDEA Model Contract, and the DOI-BIA's CFR's, as

authority for 638 Law Enforcement Contracts and content including the pay

provisions. Employees' also detailed for the court the DOI-BIA's continued

responsibility required by statute, citing the contractual provisions outlining the

agency's pervasive monitoring and enforcement duties. Appellee did not challenge

the content of these cited authorities. Nor did it challenge the content of the

specific 638 Law Enforcement Contracts. Defendant argued against the obvious

that there was no proof that the pay provisions in these contracts (specifically

referring to Law Enforcement Officers and Criminal Investigators) applied to these

Employees - NDPS Law Enforcement Officers and Criminal Investigators.

However, Employees complaint specifically pled Plaintiffs were these employees.

Simply put, if not them, then to whom do these provisions apply?

The Court allowed Plaintiffs to conduct limited discovery to establish third

party beneficiary status. Pursuant to prevailing authority, the contracting parties'

course of conduct may be offered to demonstrate an intent to benefit. Roedler v.

Dep't of Energy, 255 F.3d 1347, 1352 (Fed.Cir. 2001). Employees provided

evidence consisting of the BIA's local 638 contract monitoring and enforcement

representatives, (the BIA Awarding Officials and their Technical Field Monitor).

18

These witnesses testified that these contracts required that Navajo Law

Enforcement Officers and Criminal Investigators be paid at the same rate as their

BIA counterparts. Docket # 76-2, Pg. 5. Both confirmed that the specific pay

provisions applied to Navajo Nation employed law enforcement officers and

criminal investigators. Docket # 76-2, Pg. 4-8. The supervisor of the field

monitor, the BIA "Awarding Official" testified she assumed Navajo Law

Enforcement Officers and Criminal Investigators were being paid at the BIA scale.

Docket # 76-2, Pg. 5. Both she and the Field Monitor believed the contract

required compliance with this pay scale and both assumed the BIA scale was being

paid. Despite their acknowledgment of the duty to assure that this provision was

complied with, both testified they never checked to confirm the pay NDPS law

enforcement and criminal investigators received. Docket # 76-2, Pg. 6.

While the evidence established the BIA's duty to enforce the contract

provisions, the trial court distinguished the testimony, stating that despite the

representatives' admissions, such provisions didn't necessarily apply to

Employees.

VII. STANDARD OF REVIEW AND RESTATEMENT OF THE ISSUES A. Standard of Review.

The standard of review is identical for each of the indivually enumerated

issues contained in section II above and listed again below. The trial court's ruling

was based on the United States' Motion to Dismiss, 12(b)(1). To that end, the trial

19

court did not reach the merits of employees' claims. As such, this court reviews

employees' appeal de novo:

This court reviews de novo from the Court of Federal Claims dismissals for lack of jurisdiction . See Brown v. United States, 86 F.3d 1554, 1559 (Fed.Cir. 1996). *Like the trial court, this court tests the sufficiency of the complaint as a matter of law, accepting as true all non-conclusory allegations of fact, construed in the light most favorable to the Plaintiff. See Bradley v. Chiron Corp., 136 F.3d 1317, 1321-22 (Fed. Cir. \99%),_Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The court also reviews without deference the trial court's statutory interpretation. W. Co. ofN.Am. V. United States, 323 F.3d 1024, 1029 (Fed.Cir.2003). See also Samish v. U.S., 419 F.3d 1355, 1363-64 (Fed.Cir. 2005).

B. Issues for Review.

The trial court made several errors in its ruling, including determining that:

1. None of the cited "money mandating statutes" can reasonably

be interpreted to provide a source upon which these Employees may assert subject-

matter jurisdiction for their claims;

2. a. Despite the specific federal statutes and expressed

congressional intent, as detailed by the model contract included in the authorizing

statutes, the exclusion provision ("No Third Party Beneficiary") was properly

inserted in the 638 contracts. The court did not cite any authority supporting this

exclusion.

b. These Employees are not intended third party beneficiaries to

the contracts between the Navajo Nation and the United States, regardless of

whether the exclusion provision was contained in the particular contracts.

20

3. The ISDEA unequivocally permits the BIA to contract away its

responsibility to provide law enforcement services to Indians living on

reservations. Specifically, that the BIA is entitled to contract away its

responsibility for providing law enforcement services on the Navajo Nation;

4. These Employees' claims, arising from the ISDEA 638 Law

Enforcement contracts, must be pursued against the Navajo Nation in Navajo

Tribal Court, requiring that court to determine the rights and responsibilities of the

parties to the contracts, including the United States.

VIIL ARGUMENT

A. The ISDEA and the Indian Law Enforcement Reform Act contain money mandating provisions that fund Employees' claim. Statutory interpretation concludes that either or both of these Acts provide sources of funds to pay Employees' claims.

The primary basis upon which Employees are entitled to proceed is the

existence of one or more enforceable money-mandating sources. The provisions

(governing regulations) contained and referenced in the contracts are

acknowledged by both Acts as reasonably foreseeable expenses. Employees'

claims (pay) are ordinary expenses anticipated by both Acts.

To succeed on a claim against the United States based on statute or

regulation, the relied upon provisions "must contain language which could be

fairly interpreted as mandating recovery of compensation from the government."

Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), äff d 904 F.2d 45

21

(Fed.Cir. 1990). Where the substantive law is "reasonably amenable" to an

interpretation "that it mandates a right of recovery in damages," such claims lie

within the trial court's jurisdiction under the Tucker Act or Indian Tucker Act.

United States v. White Mountain Apache Tribe, 537 U.S. 465, 469-70, 473, 123

S.Ct. 1126, 155 L.Ed.2d 40 (2003). Because the Tucker Act provides the relevant

sovereign immunity waiver, when interpreting a statute to determine whether it

provides the necessary right of action, the court does not strictly construe the

substantive law against the claimant. The premise to a Tucker Act claim will not

be "lightly inferred," Mitchell II, 463 U.S. at 218, 103 S.Ct. 2961. A fair inference

will do. White Mountain, 537 U.S. at 472-73.

The ISDEA encompasses a broad range of services that the tribes could

contract to perform, from education, social services, and construction, to law

enforcement. The Carlow case involved a 638 road construction contract the

Ogala Sioux Tribe had contracted with the BIA to build. The ISDEA mandated a

wage rate requirement for that contract. 40 Fed.CL. at 782. The Court of Federal

Claims reasoned that in the 638 road construction contract, the costs of renting

heavy equipment was a reasonably expected expense. The Court of Claims

interpreted the provision (found at 25 USC §450(f) Historical & Stat. notes),

stating that the government anticipated there would be consequential claims arising

from activities based on self-determination contracts. Id. The Carlow court fairly

22

interpreted the ISDEA as providing for money damages. Id. In Carlow the court

reviewed the legislative history of the ISDEA, specifically the heading "Claims

Resulting from Performance of Contract, Grant Agreements or Cooperative

Agreement; Civil Action Against Tribe, Tribal Organization, etc. Deemed Action

Against United States; Reimbursement [of claims] states:

.. .an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior ... while carrying out any such contract or agreement and its employees are deemed employees of the Bureau ... while acting within the scope of their employment in carrying out the contract or agreement: Provided, That after September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act...

Carlow at 782.

The pay provisions which Employees seek to enforce are much more than,

as Appellee has asserted at various times, "a means of ensuring that the BIA and

the tribe agree as to the general nature of the costs to be incurred by the tribe in

carrying out the contract." Docket # 11, p. 12. The detailed regulations

incorporated as terms of the contract are anything but general. The terms are

highly detailed and precisely govern specific employee benefits.

First, the 638 Contract requires that Navajo DPS law enforcement officers

and criminal investigators be paid at a rate comparable to their BIA counterparts.

25 CFR §§12.33,12.34. Navajo DPS, however, instituted its own pay scale, with

23

rates far below those of the BIA. Second, Navajo DPS officers were contractually

promised, but not provided, uniform allowance. 25 CFR § 12.62.

Finally, to insure that the terms of the contract were fulfilled, the statutorily

incorporated terms authorize the BIA to compel its contractor (the Navajo Nation)

to provide all records and a full accounting. The U.S. also maintains authority to

suspend or cancel the contract for non-compliance by the contractor.

The detailed nature of the regulations support the proposition that the pay

provisions at issue were meant to be viewed as much more than a generalized

agreement concerning projected costs that NDPS might incur. The U.S. holds the

statutory and contracted authority to prohibit the NDPS from withholding

promised employment benefits from Employees.

This court has established a standard of analysis to determine whether the

relevant statutes taken as a whole, require payment. These include statutes that: (1)

provide "clear standards for paying" money to recipients; (2) state the "precise

amounts" that must be paid; or (3) as interpreted, compel payment on satisfaction

of certain conditions. Perri, 340 F.3d at 1342. Both the ISDEA and the Indian

Law Enforcement and Reform Act anticipate that these Employees would be paid

at the same level as their BIA counterparts. Ilf any doubt exists that the plain intent

of the ISDEA and/or the Indian Law Enforcement Reform Act do not provide a

source for payment of Employees' claims, this court's proscribed standard of

24

analysis should be utilized to determine whether the overall scheme of either or

both Acts can reasonably be interpreted as sources from which to compensate these

Employees. In comparing the relevant facts supporting Employees' claims with

the Congressional intent of the aforementioned Acts, the court can reasonably

conclude that Employees' claims (for pay and benefits) are foreseeable and typical

expenses anticipated by either or both Acts.

B. Third Party Beneficiary Status.

1. The exclusion provision ("No Third Party Beneficiary") was improperly inserted in the 638 contracts, frustrating congressional intent.

As a preliminary matter, the court determined that, contained in the

Statement of Work (those included in the agreements from the year 2003 forward)

and in the Criminal investigation contracts covering 2006 and 2007, a boilerplate

clause with the following language was included:

109. No third party Beneficiary. This contract does not and is not intended to create rights in any person(s) or entities other than the contracting parties.

This lawsuit was originally filed in 2001 in the U.S. District Court for the

District of Arizona. Subsequent to that date, the DOI-BIA inserted a provision

stating that no third party beneficiary status was created by the contracts. Nowhere

in Appellee's pleadings or the trial court's decision is there any authority cited that

would permit the BIA to insert such a provision in a federal contract. The "no

25

third party beneficiary" provision also circumscribes the judicial branch's

authority. Third party beneficiary is a judicially created equitable principle

accepted by the Federal Court of Claims on a variety of occasions.

The Court determined that the plain language ofthat express provision

ended the court's inquiry with respect to those specific contracts, as the clause

reflected the contracting parties' intent not to benefit any third parties. The

conclusion drawn by the court on this issue is incorrect. "A provision cannot be

inserted in a federal contract not supported by a relevant federal statute."

Demonitiney v. U.S., 54 Fed.Cl. 780, 791 (2002).

The inclusion of the boilerplate language cannot operate to deprive

Employees of their third party beneficiary status. Inclusion of such boilerplate

language attempts to mandate that the contracts are not subject to the Court of

Claims recognition of equitable relief to third party beneficiary claimants.

2. Employees are intended third party beneficiaries to the contracts regardless of the exclusion provision.

The Court then determined, regarding the remaining contracts that do not

include the exclusion provision, that Employees were not intended third party

beneficiaries. The court's determination on this issue is also incorrect. More than

sufficient evidence has been provided establishing third party beneficiary status,

demonstrated by the terms of the contracts and other evidence, including the

parties' course of conduct.

26

The Federal Court of Claims has jurisdiction in all cases where there is a

"claim against the United States founded either upon the Constitution, or any Act

of Congress or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages

in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). Employees were not

contracting parties in the formation the contracts. However, Employees are

specifically referenced third party beneficiaries in the contracts and therefore

properly asserted their claims against the United States in the lower court. Hebah v.

United States, 192 Ct.Cl. 785.

Third party beneficiary status is applied where a contract reflects an

intention of the contracting parties, express or implied, to benefit a third party.

State of Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997). The

analysis to determine third party beneficiary status is referred to as the "intention to

benefit test." Schuerman v. United States, 30 Fed.Cl. 420, 433 (1994).

The Montana court affirmed the third party beneficiary test enunciated in

Schuerman, requiring that the contract reflect the express or implied intention of

the parties to benefit the third party. Montana, 124 F.3d at 1273. The intended

beneficiary need not be identified in the contract, specifically or individually, but

the intended beneficiary must fall within a class of individuals that the contract

27

clearly intended to benefit. Sallee v. United States, 41 Fed.Cl. 509, 514 (1998). In

this instance the pay provision specifically identifies these Employees.

To determine the contract's intent, the court must look not only at the intent

of the contested provisions, but must examine the parties' entire contractual

relationship. Sallee, 41 Fed.Cl. at 514. Thus, to determine whether Employees are

third party beneficiaries to the contracts, the court must determine the intent to

benefit. The court may do this by:

1. looking at both the language of the contracts (to determine whether the "beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him."). Dewakuku v. Martinez, 271 F.3d 1031, 1041 (Fed.Cir. 2001 ) and the governing statute and its purpose (if the contract implements a statutory enactment, as these contracts do), Roedlerv. Dep 't of Energy, 255 F.3d 1347, 1352 (Fed.Cir. 2001); and

2. looking at the course of conduct of the contracting parties ("When the intent to benefit the third party is not expressly stated in the contract, evidence thereof may be adduced.") Roedler at 1352. This is also known as "other objective evidence" that may manifest the intent to benefit. Flexfab, L.LCv. United States, 424 F.3d 1254, 1262 (Fed.Cir. 2005); Stockton E. Water Dist. v. United States, 75 Fed.Cl 321, 350- 351 (2007).

The question of whether a party is an intended third party beneficiary "is a

mixed question of law and fact. Flexfab, L.L.C. at 1259. Governing laws, specific

terms of the contracts, and the testimony of the BIA representatives responsible for

28

w

monitoring and enforcement leave absolutely no doubt that these Employees are

intended parties for whom the pay rate is mandated to benefit.

a. The ISDEA - The Intent to Benefit the Employees is derived from the 638 contracts.

The United States stands in the place of the Navajo Tribe with respect to the

monies owed to Employees under the terms of the contract. Claims grounded on

the ISDEA are brought only against the United States. Carlow (contract claim

against the Oglala Sioux Tribe arising from an ISDEAA contract); Locke v. United

States, 215 F. Supp. 2d 1033 (S.D. 2002) (tort claim against tribal police officer

employed pursuant to ISDEAA contract); Waters v. United States, 812 F. Supp.

166 (N.D. 1993) (contract claim against Round Valley Community operating a

health facility under a ISDEAA contract); Big Owl v. United States, 961 F. Supp.

1304 (S.D. 1997) (claim against Oglala Sioux Tribal Counsel operating school

pursuant to ISDEAA contract).

In this case, the lower court was required to consider as a whole the unique

contractual relationship between the Navajo Tribe and United States, including the

purpose, goals, and underlying statutory scheme of the ISDEA. Sallee, 41 Fed.Cl.

at 514. The court was remiss in failing to consider the evidence obtained during

discovery which affirmed the breadth with which the BIA exercises pervasive

control over 638 contracts. In these 638 contracts, the salary scale and other

employment-related benefits are specifically addressed in accordance with the

29

ISDEA. The result is that certain employees governed by specific provisions

contained in the 638 contracts, (in this case NDPS police officers and criminal

investigators), derive a direct benefit from the statutorily mandated terms. See

Carlow, supra.

In determining intended third party beneficiary status to these 638 contracts,

the content and subject matter itself (employee pay and other employment benefits)

confirms that Employees "fall within a class of individuals" that the contract

intended to benefit. Sallee, 41 Fed.Cl. at 514. It is axiomatic that provisions

concerning pay and employment benefits exist for the benefit of the employees. If

not these employees, who are the intended beneficiaries of these pay provisions?

The trial court, relying on Christos v. United States, 48 Fed.Cl. 469 (2000),

ruled that the Employees are merely incidental and indirect beneficiaries to the 638

contracts. The instant case, however, is significantly distinguishable from

Christos, a case where the question was whether the cost of severance pay to

employees incurred by the contractor would be considered by the U.S. as a

compensable expense. The contractor chose not to make severance payments. The

court ruled the U.S. was not liable to pay those claimants a benefit the contractor

did not offer. That is not the case here. Employees here are not at all

unreasonable in relying on the clear pay provisions contained in the 638 contracts

as conferring an intended benefit on them.

30

b. Course of Conduct - The Intent to Benefit the employees can be derived by the conduct of the contracting parties.

The intent of the contracting parties to benefit the employees can also be

derived by the conduct of the contracting parties. Roedler at 1352. This is

precisely why the employees requested, and the court agreed, that some limited

discovery should be permitted, to provide the employees opportunity to establish

the intent of the contracting parties to benefit them. Such intent was firmly

established by the contracting parties' course of conduct in the execution,

implementation, and monitoring of the contracts. BIA employees responsible for

monitoring and enforcement unequivocally testified these Employees were

intended beneficiaries. (Due to page limitation Employees reference this evidence

detailed in Section V, p. 18-19 supra).

C. Under the ISDEA, the BIA may not contract away its responsibility to provide law enforcement services to Indians living on reservations. More specifically, the BIA may not contract away its responsibility for providing law enforcement services on the Navajo Nation.

The ISDEA recognizes that the United States government has had an

"historical and special legal relationship with, and resultant responsibilities to,

American Indian people." 25 U.S.C. §450(a). Within the context of this past

"historical and special legal relationship with, and resulting responsibilities to,

American Indian people", the ISDEA maintains strict contracting requirements to

help fulfill the overall goal of the legislation - to effectuate "meaningful

31

participation by the Indian people in the planning, conduct, and administration" of

programs by and for Indians. Id. The 638 contract is one vehicle utilized by the

United States in accomplishing these statutory goals. Carlow at 781.

In 1990 Congress passed the Indian Law Enforcement Reform Act. The Act

reiterated the secretary's responsibility to provide Law Enforcement on the Indian

Reservation. Contemplating the ISDEA, this Act authorized the secretary to enter

into 638 Law Enforcement contracts with the Indian Tribes to provide law

enforcement on their reservations. Both Acts state that while such contracts were

permissible, the contracts must provide for an established level of competence and

quality of service. Throughout, directly and indirectly, the Acts require that 638

Law Enforcement contracted employees must comply with comparable BIA police

service standards and they be paid at the same rate as their BIA counterparts. The

BIA has the responsibility to ensure compliance with these terms, standards of pay.

The ISDEA, the related historical and statutory notes, and the DOI's CFRs

require that the entities who contract to perform such services operate under

established written federal standards and must provide the same quality of service

as if the BIA had not contracted for the service but had instead provided such

services itself. Recognizing bureaucratic tendencies, Congress specifically stated,

and requires that services providing police officers and criminal investigators, be

funded at the same level it would have cost the BIA to provide identical services.

32

Employees respectfully disagree with the trial court's finding on multiple

occasions that:

the purpose of the 638 contracts was to transfer funding for, and responsibility to perform, law enforcement and criminal investigation services from the United States to the Navajo Nation." See November 12, 2009 ruling, p. 3, 19.

The court's decision continues to interpret the ISDEA as a shifting of

responsibilities by characterizing the BIA's role as being one of mere

"involvement with tribal organizations in self-determination contracts." Appx. p.

35. Further, the trial court incorrectly concludes that these contracts, which the

BIA representative signed, "does not place the BIA in privity of contract with

contractors with whom the tribal organizations contract." Appx. p.35. The trial

court, commenting in the abstract, concluded that the BIA has no "privity of

contract" with these individuals and supports this conclusion by referencing

scenarios from a totally unrelated case with no application to the issues at hand.

Appx. p. 35, citing Demontiney, 54 Fed.Cl. at 791.

Based on such interpretations, and in direct contravention of delineated

Congressional enactments and pronouncements of policy, the court concluded that

Employees' claims for payment under federal 638 law enforcement contracts

should be taken up "with their employer the Navajo Nation for failure to pay them

the salaries and provide them with the benefits required by statute". Appx. p. 41.

This issue is more thoroughly addressed below.

33

The Defendant's statutory duty is non-delegable. The contract

acknowledges that the Department of the Interior did not assign or delegate its

statutory duties and responsibilities to provide law enforcement on the Navajo

Nation.

Construction of Contract - Nothing in this contract may be construed to terminate, waive, modify, or reduce the trust responsibility of the United States to the tribe(s) or individual Indians.

25 USC 450(L).

A minority of courts have interpreted this provision as limiting liability only

to claims that fit within the FTCA. Carlow 's claim for reimbursement of costs of

rented heavy equipment certainly did not classify as a tort claim nor are

employees' claims tort claims. But, such claims surely arise as a consequential

expense arising from 638 contracts requiring payment at BIA rate. Employees

seek monies for wages they were statutorily mandated to be paid. This is an

anticipated expense. The initial standard in determining the costs of 638 Contracts,

the cost the BIA would have incurred in providing the same service termed the

"secretarial amount".

D. Employees' claims arise from ISDEA 638 Law Enforcement contracts, a matter over which the Navajo Tribal Court may not exercise jurisdiction, in that it would require the Navajo Tribal Court to determine the rights and responsibilities of the parties to the contracts in which U.S. is a signatory.

34

The Navajo Nation is a limited sovereign. The rationale provided by the trial

court's ruling suggests that the employees proceed against the Navajo Nation in

Navajo Tribal Court. The Tribal Court would be compelled to interpret the duties

and responsibilities of the signatories to federal 638 Contracts. Also, necessarily,

the tribal court would be required to interpret relevant federal statute(s) and

ascertain congressional intent to rule on the merits of the employees' claims, which

clearly affect federal funds. Clearly this is a task outside that court's limited

jurisdiction.

IX. CONCLUSION.

Employees simply seek what is clearly due them. Various statutes, CFR's

and Congressional pronouncements specifically require that these Employees and

all other Law Enforcement Officers and Criminal Investigators working under 638

Law Enforcement Contracts be paid at the same rate as their BIA counterparts.

This lawsuit merely requires payment from funding that has or should have

determined such employee expenses at the rate required by law and contract.

Congress explicitly requires that the DOI-BIA fund the subject 638

Contracts at the "secretarial amount." This term is described as the amount it

would cost the Secretary if the DOI were to provide the same service. Obviously if

the DOI utilized BIA Law Enforcement Officers and Criminal Investigators, they

would have been paid at the BIA rate. Substantiating Congress' well-placed lack

35

of trust in its agencies, the BIA inserted a "no third party beneficiary" provision in

later contracts, frustrating both Congressional intent and any attempt to have the

courts enforce this unequivocal statutory requirement.

These Employees are intended third party beneficiaries of the 638 contracts

between the Navajo Nation and the United States. Employees request that this

court reverse the lower court's granting of Appellee's Motion to Dismiss and

remand the case for trial.

RESPECTFULLY SUBMITTED this lu day of June, 2010.

LAW OFFICES OF EDWARD D. FITZHUGH

[Qßxmi çhxyt^M Tamra Facciola P.O. Box 24238 Tempe, Arizona 85285-4238 Attorney for Plaintiffs-Appellants

36

CERTIFICATE OF FILING

I hereby certify that on this / O'"' day of June, 2010, the original + 13

copies of the foregoing "Brief of Plaintiffs-Appellants" was sent via FedEx to the

Court Clerk for filing. Two copies were mailed via U.S. mail to Defense counsel

this same date.

Christopher Bowen United States Department of Justice

Commercial Litigation Branch- Civil Division 1100 L. Street, N.W., Room 12068

Washington, D.C. 20530

(CüLrm* (%Cc^Jl~

37

NOVEMBER 12, 2009 ORDER FROM FEDERAL COURT OF CLAIMS

38

I Case 1:07-cv-00195-MMS Document 84 Filed 1 iñ 2/2009

3ín tl)t Wínítttí States; Court of Jf^beral Claims

No. 07-195 C (Filed: November 12, 2009)

FILE COPY

DARRELL BOYE et aL, * *

Plaintiffs, * *

v. * *

THE UNITED STATES, * *

Defendant. *

Benefu iaries; Law

RCFC Party Contracts; Investigation Limitations; Indian Law Indian Self- Assistance Act:

Washington, DC, for defendant.

Edward D. Fifrhnph Tempe, AZ, for plaintiffs.

Christopher Bowen, United States Department of Justice,

OPINION AND ORDER

SWEENEY, Judge

h^fiJ? ^^-^P^0^ action, plaintiffs allege that they hax e not been paid the wages and benefits to whicfc> they are entitled pursuant to various self-detennii ation contracts execuS¡IT thar employer, üxe Navajo Nation, and the United States Departme « of the Interior *

De^enS? í1^00: ^ bring ^ claim as purported third-party beneficiaries. Defendant has moved to dismiss the complaint for lack of jurisdicti on and for failure to state a

cZ TFJ tr?^ ^be ^^ PUrSUant t0 Rule 12 of ** RuIes of the UmtS r derwfrLcn^(R^^

12(b)(jl); RCFC 12(b)(6); Third- ¡; Self-Determination

Enforcement and Criminal Services; Statute of

< Continuing Claim Doctrine; E iforcement Reform Act;

■D îtermination and Education :; Claim Preclusion

v3?

Case 1:07-cv-00195-MMS Document 84 Filed 11 à 2/2009

I. BACKGROUND1

The Bureau of Indian Affairs ("BIA") of the Department of the providing law enforcement on the Navajo Reservation. Am. Comí i responsibility, the Department of the Interior executes contracts foi criminal investigation services with the Navajo Nation. Id. Such ™, "638 contracts."2 Idf 7. The 638 contracts were generally award« d amended on an annual basis for funding purposes.3 See, e.g.. DA 47, 59, 71, 87, 101, 115, 127, 139. The contracts were awarded by turn, designated an Awarding Official's Technical Representative SA 2, 13, 24, 35,47,59, 71, 87, 101, 115, 127, 139; see also DA 1 Memorandum of Designation defining the "scope of authority, duti Awarding Official's Technical Representative). Each contract and annual

Interior is responsible for Í7,9. To fulfill the BIA's

law enforcement and Contracts are referred to as

for multiple-year terms, but 4,41, 101; SA 2, 13,24,35, an Awarding Official, who, in

administer them. See, e.g.. -29 (containing a :s, and responsibilities" of the

amendment

tb .2'

1 The court derives the facts in this section from the amend< d The amended complaint "is deemed to include any written instrume nt or any statements or documents incorporated in it by reference " PS I States, 59 Fed. Cl. 590, 597 n.8 (2004), rev'd on other grounds 411 seealso RCFC 10(c) ("A copy of any written instrument which is a* part thereof for all purposes."); 2 James Wm. Moore et al., Moore's (3d ed. 2006) ("In deciding whether to dismiss, the court may the pleadings, documents attached as exhibits or incorporated by matters of which the judge may take judicial notice."). Because ^ certain, specified contracts, the court derives additional facts from and supplemental appendix ("SA"), which include the relevant

2 The reference is derived from the number of the law for the execution of the conttacts-the Indian Self-Determination anc Pub. L. No. 93-638, 88 Stat. 2203 (1975).

3 For simplicity, the court refers to the contracts and annual the "638 contracts." See also DA 41 (noting that while the term of the "upon the election by the [Navajo Nation], the period of this Contrait basis of a calendar year").

40

complaint ("Am. Compl."). attached to it as an exhibit

Energy. Inc. v. United F.3d 1347 (Fed. Cir. 2005); exhibit to a pleading is a

Federal Practice f 12.34[2] consider only the facts alleged in

ref îrence in the pleadings, and pla ntifls allege the breach of

d îfendant's appendix ("DA") cont acts

enacted by Congress that provided Education Assistance Act,

imendments collectively as contract was three years,

shall be determined on the

Case 1:07-cv-00195-MMS Document 84 Filed 11/12/2009

incorporated a model contract, an annual funding agreement, and a DA 39-40, 55, 62, 73, 91, 107, 122; SA 3, 14, 25, 36, 48, 60, 72, 88,

paiement of work.4 See, e.g., 102,116,128,140.

conü acts Pursuant to the model contracts, the purpose of the 638 for, and responsibility to perform, law enforcement and criminal i United States to the Navajo Nation. See, e.g., DA 40. To further the contract were to be "liberally construed" for the benefit of the Navajo Nation was not required to expend more money for the obligated under the contract and, after notice to the Secretary of the ("Secretary of the Interior"), could suspend work under the contract Moreover, unless otherwise provided by law, the Navajo Nation wai guidelines, manuals, or policy directives" of the Secretary of the

was to transfer funding investigation services firom the th s purpose, the provisions of N¡ vajo Nation. Id The

desif nated services than was Department of the Interior or lack of funds. Id. at 42. not bound by the "program

Interior. Id. at 47.

The annual funding agreements provided that "[t]he Navajo programs identified in the Statement of Work ... during the term agreement] in accordance with the provisions of the Contract and th ...." Id at 55; accord id. at 74, 108. The agreements indicated tha awarded under the 638 contracts, the Navajo Nation received sources. Id. at 56; accord id. at 75,109. They also provided that "a Navajo Nation under [the annual funding agreements] will adhere tc personnel policies and procedures, including ... pay schedules and id. at 79, 113. Further, the annual funding agreements indicated tha Tort Claims Act coverage, the Navajo Nation and its employees are the Federal government while performing work under this contract, the model contracts and some of the annual funding agreements required to perform an annual performance monitoring visit. See, e

nation shall administer the oi this [annual funding

; [annual funding agreement] along with the funding

program funding from other 1 personnel employed by the applicable Navajo Nation

>ay tables." Id at 59; accord [f]or purposes of Federal

deemed to be employees of Id at 60, 85, 119. Finally,

provided that the BIA was ^,1^3145,84,118.

The statements of work in the law enforcement contracts coYering 2002 through 2007 contained the following provisions:

101. The Contractor [, Le^, the Navajo Nation,] shall perfo: Bureau program: LAW ENFORCEMENT SERVICES the contract, the Annual Funding Agreement (AFA), and

inn the following Sutlject to the terms of av; ilability of funds, the

45Œ0 4 The model contract is required by statute, 25 U.S.C. §

certain, specified provisions, id § 450/(c), and must incorporate an tie The record before the court contains only one model contract (for

covering 2002) and three annual funding agreements (for the law 2002 and 2007 and the criminal investigation contract covering 107-120. The court assumes, for the purposes of ruling on defendant diese model contracts and annual funding agreements are represent: tive other years.

4/

a)(l) (2006), must contain mnual funding agreement, id

law enforcement contract edforcement contracts covering

200J7). See DA 39-61, 73-86, 's motion to dismiss, that

of the documents from

Case1:07-cv-00195-MMS Document 84 Filed 11/12/2009

Contractor shall perform police law enforcement activities ai Law Enforcement Reform Act... within Navajo Indian Cou itry

102. Personnel. The Contractor shall perform the contracte« 1 program in accordance with the qualifications, training, code of conduct, inspection and evaluation, and other standards applicable to Bureau law enforcement personnel, or the equivalent. ...

106. Salaries. Salaries paid law enforcement officers by Contract shall be equal to or greater than the salaries paid officers with similar responsibilities employed directly by Affairs.

\a\f th>

107. Reporting. The Contractor shall prepare and submit th the Contracting Officer's Representative:

B. Internal Reporting Procedures.

The Contractor will maintain the following information as of this Contract, but will not submit this information will be available for inspection during the Bureau's yearly

noted in the Indian

law enforcement

the) Contractor under this enforcement Bureau of Indian

following reports to

part of its performance Howe yer, this information

rr onitoring visit:

8. Payroll records of all employees[.]

54-56 SA 3-4, 8-10, 14-15, 19-21, 25-26, 30-32, 36-37,42-43,48-49, the statements of work in the criminal investigation contracts for thi :

101. The Contractor [, Le^, the Navajo Nation,] shall perfon n Bureau program: CRIMINAL INVESTIGATIONS SERVICIES terms of the Contract, the Annual Funding Agreement, and the Contractor shall perform criminal investigation services Law Enforcement Reform Act... within Navajo Indian Country

5 In the contracts covering 2004 through 2007, the opening notation "(AFA)" after "Annual Funding Agreement." SA 102,1

, 60-61, 66-68. Similarly, same years provided:

the following Subject to the

availability of funds, as noted in the Indian

jaragraph included the lí, 128,140. Further, the

H-z

Case 1:07-cv-00195-MMS Document 84 Filed 11/1 a/2009

tat 102. Personnel. The Contractor shall perform the contracte« investigation program in accordance with the qualification, conduct, inspection and evaluation, and other standards a] criminal investigations personnel, or the equivalent.6

criminal ining, code of

ppllcable to Bureau

106. Salaries. Salaries paid criminal investigators by the Contract shall be equal to or greater than the salaries paid with similar responsibilities employed directly by the Bureai

REPORTING

The Contractor shall prepare and submit the followir g reports to the Contracting Officer's Representative:8

Cdntractor under this cripiinal investigators

of Indian Affairs.7

B. Internal Reporting Procedures.

parti The Contractor will maintain the following information as of this Contract, but will not submit this information. Howejver. will be available for inspection during the Bureau's yearly

of its performance , this information

nlonitoring visit:

opening paragraph of the contract covering 2004 substituted "with' Finally, in the contracts covering 2005 through 2007, the opening p iragraph substituted "Navajo Nation" for "Navajo Indian Country." RL at 116, 128,140.

6 In the contracts covering 2004 through 2007, the "Personr el" provision omitted the word "program," added an "s" at the end of "qualification," and sul stituted "investigator personnel" for "investigations personnel." SA 106, 119, 131, 143.

7 In the contracts covering 2006 and 2007, the following cit ition was appended to the "Salaries" provision: "(25 CFR § 12.33 - 12.34)." SA 135,177.

8 In the contracts covering 2005 through 2007, "Contract" i » substituted for "Contractor.' SA 123, 135, 147.

for "within." Id. at 102.

43

Case 1:07-cv-00195-MMS Document 84 Filed 11/12/2009

8. Payroll records of all employees[.]9

122 Id at 72, 77, 82-83, 88,93,97a-98,,0 102, 106,110-11,116, 119, 143, 147-48 (footnotes added). With respect to third-party in five of the six law enforcement contracts (all but the contract in e criminal investigation contracts covering 2006 and 2007 provided

-24, 128, 131, 135-36, 140, beneficiaries, the statements of work

feet during 2002) and the

109. No Third-Party Beneficiary. This contract does not an< create rights in any person(s) or entities other than the contrapting

Id. at 22, 33, 45, 57, 69, 137, 149.

is not intended to parties.

Plaintiffs are current and former employees of the Navajo Ni tion Division of Public Safety ("Navajo DPS"), most of whom reside within the Navajo Res ervation in Arizona. Am. Compl. ffli 4-5. In their complaint, originally filed on March 23, 20( 7, and later amended to add new plaintiffs on July 27, 2007, plaintiffs allege that they did not re< eive, or are not receiving, wages and benefits equal to the wages and benefits paid to their BL* counterparts, as required by the relevant 638 contract. Miffll 11-18. Indeed, one of the plaintiffi contends that Navajo DPS law enforcement officers are paid between $25,396 and $35,734 an< Navajo DPS criminal investigators are paid between $35,734 and $42,432, while their BL L counterparts are paid between $27,528 and $46,314, and between $34,678 and $70,555, r ;spectively. Am. Compl. Ex. A tH 6-7. Accordingly, plaintiffs allege that defendant has breachec the relevant 638 contracts, as well as the underlying regulatory framework, by failing to investí »ate whether the Navajo Nation was in contract compliance and by failing to ensure that plai itiffs received their contractually mandated wages and benefits from the Navajo Nation Am. Compl. fflj 13-18. Plaintiffs assert that their breach of contract claim is based on their mrported status as third-party beneficiaries of the 638 contracts between the Navajo Nation and th s Department of the Interior. Id. f 14. They seek an accounting and payment of all amounts due i o them, costs, attorney's fees, interest, and "such other and further relief as the court deems just ai d proper." Am. Compl. Wherefore ffif 1-5.

9 In the contracts covering 2006 and 2007, this item is i 136,148.

10 The page containing the "Salaries" provision from the covering 2003 was omitted from defendant's supplemental appendik

witi

numl »ered "6" instead of "8." SA

filed the missing page at the court's request, but did not mark it page number. Since the missing page should have appeared after appendix, the court assigned it page number 97a.

crifriinal investigation contract . Defendant subsequently a supplemental appendix

pfge 97 of the supplemental

//4

Case1:07-cv-00195-MMS Document 84 Filed 11/12^2009

Defendant moves to dismiss plaintiffs' complaint on three grounds. First, defendant contends that this court lacks jurisdiction over plaintiffs' breach of contract claim because plaintiffs are not intended third-party beneficiaries of the 638 contracts. Second, defendant argues that even if plaintiffs were intended third-party beneficiaries 4f the 638 contracts, they have failed to state a claim upon which the court could grant relief b breach of contract they allege is specific performance, which is not Finally, defendant seeks dismissal of plaintiffs' complaint based on preclusion. The court heard argument on November 9, 2009.

II. STANDARD OF REVIEW

Defendant has moved to dismiss plaintiffs' complaint pursua tit a motion to dismiss, the court assumes that the allegations in the cor iplaint those allegations in plaintiffs' favor. Henke v. United States, 60 F.31 With respect to RCFC 12(b)(1), plaintiff's bear the burden of proving ;. evidence, that the court possesses subject matter jurisdiction. McNytt

to RCFC 12. In ruling on are true and construes

795, 797 (Fed. Cir. 1995). , by a preponderance of the

v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & / dr Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The court may look to evidence determine the existence of subject matter jurisdiction.. Land v. Dollar, (1974); Reynolds, 846 F.2d at 747. If the court finds that it lacks a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

outfcide of the pleadings to :,330U.S.731,735&n.4

subject matter jurisdiction over

on; If the court finds that it possesses jurisdiction to entertain it still must dismiss those claims that fail to state a claim upon whicji pursuant to RCFC 12(b)(6). The United States Supreme Court (' degree of specificity with which a plaintiff must plead facts sufficieit Bell Atlantic Corp. v. Twombly, stating that "a plaintiff's obligatior his 'entitletment] to relief requires more than labels and conclusion s of the elements of a cause of action will not do." 550 U.S. 544, 555 The Supreme Court explained that although a complaint need not allegations," the "factual allegations must be enough to raise a right speculative level " M. In other words, the complaint must claim to relief that is plausible on its face." M. at 570. "A claim plaintiff pleads factual content that allows the court to draw the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, (citing Bell Atl. Corp., 550 U.S. at 556). Allegations constituting a defendant's liability or that are "'merely consistent with' a défendait sufficient. Id (quoting Bell Atl. Corp., 550 U.S. at 557). Moreovei elements of a cause of action, supported by mere conclusory

luse the remedy for the ailable in this court. le doctrine of claim

; or all of plaintiffs' claims, relief can be granted reme Court") clarified the to survive such a motion in

to provide the 'grounds' of i, and a formulaic recitation (2007) (citation omitted).

"detailed factual to relief above the

conéún "enough facts to state a facial plausibility when the

reasonable inference that the l]29S.Ct 1937, 1949(2009)

sheer possibility" of :'s liability" are not

, "[t]hreadbare recitals of the statements, do not suffice." Id

^5"

Case 1:07-cv-00195-MMS Document 84 Filed 11/1^/2009

stated (citing Bell Atl. Corp., 550 U.S. at 555). "[OJiice a claim has been supported by showing any set of facts consistent with the allegations Atl. Corp., 550 U.S. at 563. Indeed, "[t]he issue is not whether a plaintiff will but whether the claimant is entitled to offer evidence to support die 416 U.S. 232, 236 (1974). overruled on other grounds by Harlow v. 814-19 (1982).

III. SUBJECT MATTER JURISDICTljON

ultimately prevail daims." Scheuer v. Rhodes,

itzgerald. 457 U.S. 800,

Whether the court has jurisdiction to decide the merits of a Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94^95 (1998) court cannot proceed at all in any cause. Jurisdiction is power to ceases to exist, the only function remaining to the court is that of dismissing the cause." Ex parte McCardle. 74 U.S. (7 Wall.) 506, court sua sponte may challenge the court's subject matter jurisdicti & H Corp.. 546 U.S. 500, 506 (2006).

eise is a threshold matter. See 'Without jurisdiction the

the law, and when it the fact and

(1868). The parties or the at any time. Arbaugh v. Y

de :lare an louncing i

5L4 01

The ability of the United States Court of Federal Claims (' entertain suits against the United States is limited. "The United from suit save as it consents to be sued." United States v. Sherwood,

Sta es

The waiver of immunity "cannot be implied but must be States v. King, 395 U.S. 1,4 (1969). Further, "[w]hen waiver limitations, the limitations provision constitutes a condition on the immunity." Block v. North Dakota ex rel. Bd. of Univ. & Sch

Plaintiffs assert jurisdiction under both 28 U.S.C. § 1491 ('" \icker Act") and 28 U.S.C. § 1505 ("Indian Tucker Act"). The Tucker Act, the principal statut« : governing the jurisdiction of this court, provides that the Court of Federal Claims possesses juris iiction over claims against the United States that are founded upon the Constitution, a federal $ tatute or regulation, or an express or impüed contract with the United States. 28 U.S.C. § 1451(a)(1) (2006). The Indian Tucker Act further provides that the Court of Federal Claims posse; ses jurisdiction over claims brought by "any tribe, band, or other identifiable group of Americai L Indians" against the United States that are founded upon "the Constitution, laws or treaties of ti e United States, or Executive orders of the President," as well as claims that "otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or gro jp. the Tucker Act and the Indian Tucker Act are merely jurisdictional substantive right enforceable against the Government by a claim foi money damages. States v. White Mountain Apache Tribe, 537 U.S. 465,472 (2003).

adequately, it may be in the complaint."11 Bell

Cfcurt of Federal Claims") to , as sovereign, is immune 312 U.S. 584,586(1941).

unequivocally expressed." United legisl ation contains a statute of

\ /aiver of sovereign Lanfls, 461 U.S. 273, 287 (1983).

14 § 1505. However, îtatutes, and do not create "a

United

" In so holding, the Supreme Court determined that the "nc forth in Conlev v.Gibson, 355 U.S. 41,45 (1957)^ "has earned its 550 U.S. at 563.

4b

set of facts" language set ifetirement," Bell Atl. Corp.,

Case 1:07-cv-00195-MMS Document 84 Filed 11 /12/2009

Instead, the substantive right must arise from another source Mitchell 463 U.S. 206, 216 (1983), that, in general, "'can fairly be compensation by the Federal Government for Ae damages sustained v. Testan, 424 U.S. 392,400 (1976) (quoting Eastport S.S. Corp. v

i )f law. United States v. interpreted as mandating

"• United States i Jnited States, 372 F.2d

1002, 1009 (Ct. Cl. 1967V>: see also Loveladies Harbor. Inc. v. Unite d States, 27 F.3d 1545, 1554 git (Fed. Cir. 1994) (en banc) (holding that the other source of law mi;

constitutional provision, statute or regulation that has been violated, contract with the United States")- To make such a showing, a that the substantive source of law is "reasonably amenable to the of recovery in damages." White Mountain Apache Tribe, 537 U.S. premise to a Tucker Act claim will not be 'lightly inferred,' a fair omitted).

IV. STATUTE OF LIMITATIONS

be a "money-mandating ar an express or implied

plaint ff must only demonstrate rea ling that it mandates a right

t473. In sum, "[w]hile the inference will do." Id. (citation

regí rding As a preliminary matter, the court is obliged to address plainfiffs

Defendant's breach of the contractual and regulatory provisions and payment of other benefits, was, and is, of a continuing nature fo limitations has no application." Am. CompL 116. Plakitiffs' comp statute of limitations set forth in sections 2401(a) and 2501 of title twenty States Code.12 See 28 U.S.C. §§ 2401(a) ("Except as provided by tte

' allegation "[t]hat Plaintiffs' rate of pay,

which the statute of aint is subject to the six-year

'-eight of the United Contract Disputes Act of

tie

12 Section 2401 finds its roots in the first section of the TucUer 1887, ch. 359, § I, 24 Stat. 505, 505 ("[N]o suit against the Go shall be allowed under this act unless the same shall have been brought right accrued for which the claim is made."). The limitations p in the United States Court of Claims ("Court of Claims") and claim ; of the United States, which had concurrent jurisdiction over those c See id. § 2. Subsequently, in 1911, the limitations provision from " the Judicial Code in the chapter titled "District Courts-Jurisdiction, ch. 231, § 24(20), 36 Stat. 1087,1093. The provision was placed ir district courts' concurrent jurisdiction with the Court of Claims ove : $10,000. Id. When the laws of the United States were consolidate< in 1926, the limitations provision remained in the paragraph concer img concurrent jurisdiction with the Court of Claims that appeared in th the district courts' jurisdiction. See Act of June 30,1926, ch. 712, U.S.C. § 41(20) (1926)). The limitations period was finally codifie 1 1948. See Act of June 25, 1948, ch. 646,62 Stat. 869,971 (codifie i (1946 & Supp. II1949)). It was decoupled from the concurrent juri sdicti retained in the chapter concerning the jurisdiction of district courts, (codified at 28 U.S.C. § 1346(a) (1946 & Supp. H 1949)), and relocjated "United States as Party Generally," id. § 1,62 StaL at 971. Ç£ id.

¿ft

Act. See Act of Mar. 11, at of the United States[] within six years after the

on applied to claims brought brought in the district courts

aims for less than $1,000. Tucker Act was codified in See Act of Mar. 3, 1911,

the paragraph describing the claims for less than and codified into one code

the district courts' chapter generally describing

44 Stat. 777 (codified at 28 at its present location in at 28 U.S.C. § 2401(a)

ion language, which was see id. §1,62 Stat. at 933

into the chapter titled | 33,62 Stat. at 991 (noting

Case1:07-cv-00195-MMS Document 84 Filed 11/1^2009

1978, every civil action.commenced against the United States shall 1 >e barred unless the complaint is filed within six years after the right of action first accru es."), 2501 ("Every claim of which the United States Court of Federal Claims has jurisdiction sh; 11 be barred unless the petition thereon is filed within six years after such claim first accrue s."). The Supreme Court has held that section 2501 provides an "absolute" limit on the ability of he Court of Federal Claims to reach the merits of a case. John R. Sand & Gravel Co. v. United 54 (2008). Because the language and meaning of section 2401 is su jstantially similar to section 2501, it also limits this court's jurisdiction. See Georgalis v. U.S. P itent & Trademark Office, 296 Fed. App'x 14, 16 (Fed. Cir. 2008) (per curiam) (unpublished) i"While we are presented with a different statute in this case-§ 2401 rather than § 2501-we c< nclude that the Supreme Court's rationale applies with equal force because both are 'jurisdic ionaF statutes of limitations.").

"A claim first accrues within the meaning of the statute have occurred which fix the liability of the Government and entitle action." Brown Park Estates-Fairfield Dev. Co. v. United States, 12 1997) (internal quotation marks omitted). In this case, plaintiffs nature" of the government's purported breach, which the court United States breached the relevant 638 contract each time a plainti Nation. Thus, plaintiffs contend that, under the continuing claim dc each and every purported breach, regardless of when that contract w

of lijnitations when all the events he claimant to institute an 7 F.3d 1449, 1