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Tribe v. Bernhardt

United States District Court, District of Columbia

August 8, 2019

DAVID BERNHARDT, Secretary of the Interior, et al, Defendants.


          Thomas F. Hogan Senior United States District Judge

         This 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.

         On August 7, 2012, the Tribe's counsel, Herman, Mermelstein & Horowitz (hereinafter "Herman Law")[1] 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].

         The 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.[2] 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].

         On 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].

         Thereafter, 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].[3] According to Herman Law, the Government does not oppose the motion so long as it does not enjoin the Government.


         A stay 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." Id.


         a. Herman Law Has Not Made A Strong Showing that It is Likely to Succeed on the Merits of Its Appeal.

         Herman 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.

         i. Tribal Immunity

         Indian 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").

         Indian 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. ...

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