United States District Court, District of Columbia
F. Hogan Senior United States District Judge
long-pending case began in 2003 when the Yankton Sioux Tribe
(hereinafter "the Tribe") sued the Secretaries of
the Departments of the Interior and Treasury to obtain a
declaratory judgment that the Government "ha[s] not
provided the Tribe with a full and complete accounting of the
Tribe's trust funds as require[d] by law," and an
injunction requiring the Government to account for those
funds. Compl. ¶¶ 27 & 30 [ECF No. 1]. The Tribe
joined numerous other Indian tribes who were participating in
a "collective process" to negotiate settlements
with the United States over its mismanagement of tribal
trusts. [ECF No. 68]. The Tribe and the United States engaged
in settlement discussions for years.
August 7, 2012, the Tribe's counsel, Herman, Mermelstein
& Horowitz (hereinafter "Herman
Law") moved to withdraw as counsel and intervene
to "assert a charging lien for work and services
performed from the filing of th[e] action, July 28,
2003" through their withdrawal. Mot. to Intervene at 2
¶ 7 [ECF No. 69] (hereinafter "Mot. to Int.").
Herman Law asserted its lien based on a retainer agreement
with the Tribe that provided that the Tribe would pay Herman
Law "25% of any recovery from the gross proceeds"
of the litigation, along with Herman Law's costs.
Id.; see also Mot. to Int. Ex. 1 (hereinafter
"the Contingency Agreement"). Both the Tribe and
the Government opposed the motion to intervene. [ECF Nos. 72
& 73]. Herman Law filed a reply. [ECF No. 74].
case lay dormant for the next six years. At Herman Law's
request, the Court held a status conference on June 7, 2018,
and urged the parties to move expeditiously towards either
settlement or trial. After the parties made progress towards
finalizing a settlement, the Court set a hearing on the
motion to intervene. Given the length of time that had passed
since Herman Law filed its motion, the Court allowed both the
Tribe and Herman Law to file supplemental briefs citing any
new legal authority relevant to the motion to intervene. [ECF
No. 85]. The Tribe filed a supplemental brief on October 29,
2018 [ECF No. 88], and Herman Law filed one on November 13,
2018 [ECF No. 90], along with both sealed and unsealed
exhibits, [ECF Nos. 86 &92].
March 8, 2019, the Court heard argument on Herman Law's
motion to intervene, and denied the motion in a ruling from
the bench. [ECF No. 100] (hereinafter "Hr'g
Tr."). In denying the motion, the Court concluded that
although Herman Law would otherwise have the right to
intervene pursuant to Federal Rule of Civil Procedure 24(a),
it could not do so because of the Tribe's sovereign
immunity. Hr'g Tr. 24:18-25:8. The Court found that the
Tribe did not waive sovereign immunity in the Contingency
Agreement with Herman Law, id. at 24:11-17: 28:1-2,
or via the "sue and be sued" clause in the
Tribe's corporate charter, id. at 25:3-26:16;
28:2-3. Herman Law has appealed that ruling. [ECF No. 102].
Herman Law filed a motion for a stay pending its appeal of
the Court's denial of its motion to intervene [ECF No.
104], and then filed an amended motion for a stay [ECF No.
105] (hereinafter "Am. Mot."). The Tribe opposed
the original motion [ECF No. 106], and Herman Law replied
[ECF No. 108]. According to Herman Law, the Government
does not oppose the motion so long as it does not enjoin the
pending appeal is "extraordinary relief involving the
exercise of judicial discretion. Citizens for
Responsibility and Ethics in Wash. v. Fed. Election
Comm'n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per
curiam); Nken v. Holder, 556 U.S. 418, 433 (2009).
"The party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that
discretion." Nken, 556 U.S. at 433-34. Courts
consider the following four factors when determining whether
to grant a stay: "(1) whether the stay applicant has
made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies."
Id. at 434 (internal quotation marks omitted). The
first two factors are "the most critical."
Herman Law Has Not Made A Strong Showing that It is Likely to
Succeed on the Merits of Its
Law argues that it is likely to succeed on the merits of its
appeal because its intervention to assert a charging lien is
not a "suit," and thus does not implicate the
Tribe's sovereign immunity. Am. Mot. at 2. According to
Herman Law, it gained an interest in 25% of the litigation
proceeds pursuant to the Contingency Agreement. It is thus
not seeking to divest the Tribe of any interest in the
litigation that the Tribe currently possesses. Id.
at 6-7. Meanwhile, the Tribe asserts that Herman Law seeks to
"inject a contract dispute" into the Tribe's
litigation against the Government, and that it is protected
from the suit by its sovereign immunity, which the Tribe has
not waived. Pl.'s Opp'n at 2-3.
tribes are '"separate sovereigns pre-existing the
Constitution'" that enjoy the '"common law
immunity from suit traditionally enjoyed by sovereign
powers.'" Michigan v. Bay Mills Indian
Cmty., 572 U.S. 782, 788 (2014) (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978)); see
Samantar v. Yousuf 560 U.S. 305, 311 (2010) (describing
early foreign sovereign immunity caselaw as "extending
virtually absolute immunity to foreign sovereigns").
tribes are "subject to suit only where Congress has
authorized the suit or the tribe has waived its
immunity." Kiowa Tribe of Okla. v. Mfg. Techs.,
Inc.,523 U.S. 751, 754 (1998). "The baseline
position ... is tribal immunity, and to abrogate such
immunity, Congress must unequivocally express that
purpose." Michigan, 572 U.S. at 790 (internal
quotation marks omitted and edits accepted). Similarly, a
tribe's "waiver of sovereign immunity cannot be
implied but must be unequivocally expressed." Santa
Clara Pueblo, 436 U.S. at 58 (internal quotation marks
omitted); see also C&L Enter., Inc. v. Citizen Band
Potowatomi Indian Tribe of Okla., 532 U.S. 411, 418
(2001) ("[T]o relinquish it's immunity, a
tribe's waiver must be clear.") (internal quotation
marks omitted). "A tribe does not automatically open
itself up to counterclaims simply by virtue of filing a
suit," and a tribe does not lose its immunity "by
instituting an action, even when the defendant files a
compulsory counterclaim." Wichita and Affiliated
Tribes of Okla. v. ...