know your argument next in case fourteen five ten manami indian tribe of wisconsin versus the united states which is stronger mr chief justice may please the court the facts in this case are very complex but the legal question that is presented to you today is relatively straightforward to state and the legal question is whether or not an individual or an entity that reasonably relies on class action tolling can if tolling is found to be ineffective at a later date then rely on the same facts to argue equitable tolling under holland should apply in the irwin case this court specifically cross reference american height as an example of a defective pleading that could satisfy equitable tolling american pipe obviously class action tolling rule we read that cross reference as a suggestion that under the right circumstances if somebody reasonably relies on class action tolling facts that ultimately prove to be ineffective that that individual has the ability to ask the court to find that equitable tolling for the five if there is such a case the facts of this case really should satisfy this test the test is set forth in the one case due diligence and extraordinary circumstances are the two prongs that have to be satisfied both of them are well satisfied in this case first the menominee tribe relied on a preexisting class action which dealt with almost identical substantive claims against the united states are you talking about the rama yes correct justice and spring that once it is a decision unpublished decision a decision or it never went any further well it is still a certified class justice ginsburg and the menominee tribe not only is a member of that class but has today received a portion of several settlements that were entered into in that class action and in fact i poised to receive another large payment in a settlement that the class and the united states issue of who approved the issue that that case settled or addressed was whether exhaustion was required at all minimal research would have shown that every other court at that time who had addressed the issue had required exhaustion now with a later to exhaustion when that's separate question so how could you reasonably rely on a lower court decision that hasn't gone through the crucible of appellate review without having done any research on whether its premises were subject to dispute reasonable dispute and rely on that well just a sort of fire i have a couple of answers to your question first of all the united states  challenge the certification of the class in the rain the case not when it was originally certified based on the claims that were then in the case miscalculation claims nor later on when the british and the argument just last they raised the argument that the reef exhaustion requirement didn't me in the commonality cronk of class certification so they didn't make an argument against it or they argued but the district court judge in the room a case reasonably we think concluded that because of the unique nature of the claims that the rain the class was sick i know that's what you believe but every other court up until that time had said no you need exist now we can go to a separate question of exhaust when later but how could you at that point rely on that case to think that you didn't have to walk the menominee tribe didn't rely just on that place that case was an important factor that it relied on but there was also other factors that it relied on in the cherokee nation certification process the united states did not raise presentment as a defense instead it raised will twenty three grounds as a basis not to certify the class and the district court judge in that case on garden variety rule twenty three grounds ruled that case could not be certified didn't say anything in this order about presentment jurisdiction did not talk about that whatsoever and in fact in his ruling he specifically said that if a class had been certified it would have been easy to identify all of the tribes in the country that would have been members because they were all listed on the shortfall reports that the united states produced at the same time as the years in which the claims were arose as to stormers and all of this goes to deciding whether the legal advice they received was reasonable legal advice i find that quite irrelevant do you have a single case in which legal advice has  qualified for equitable tolling no your honor we can't cite a single case for that so now you're really you're really arguing a remarkable proposition that if you get bad legal advice that justifies equitable tolly well now you mention the extraordinary circumstances but there are are cases refer to extraordinary circumstances that stood in the way and prevented timely ike i would not qualify erroneous legal advice as preventing time timely filing i don't care how reasonable it was it didn't prevent it well your honor in the context of class action tolling there is always a legal judgement call made about whether or not class action tolling applies and if equitable tolling is not available as a fallback if in fact that judgment was not made correctly and discovered many years later then the whole premise of class action tolling i think is undercut because any member of a class for example in the cherokee nation case where the district court judge said absolutely nothing about presenting nothing about jurisdiction the government didn't raise that defense focused only on rule twenty three issues in any case in which a district court judge declined to certify a class if circumstances in this case are extraordinary and are very rare it is very unlikely that you will find another circumstance where a preexisting class action dealing with the same substantive matter against the same party the united states in which a court specifically addressed the presentment issue and ruled in favor of certifying the class is what was the way at the time between the denial of class certification and the presentment was a long denied the class action has been denied correct so at that point you know you're on your own you can piggyback on the class you know you know you're on your own and yet you let two years go by and don't understand well your honor under class auction totally rules you're entitled to the entire period that the class action certification was pending that's seven hundred actually those are automatically like true there's a circuit split which hasn't  anywhere in the briefing some of the circuits do with the way you say they stop the clock and restart the clock at the end of the toltz period in those circuit you would wish you could wake the entire six years plus however long the other case was pending but another series of circuits look the period and so you'd be asking us to make an assumption about which or make a decision about which tolling applies you were taking a risk no matter what you did there certainly in any class action environment a risk in relying on class action tolling particularly as the facts of this case demonstrate if ultimately i'm sorry all of these decisions were they made with the advice of a lawyer and i have a sense that the tribe was concerned about its resources and that they were just getting together and talking about this and deciding we're not going to win under the law so we're not going to find and it was only when cherokee nation was decided by this court that they realized they had a viable claim so but answer my question was their legal advice sought they relied disagree that that was if we think that was an reasonable your reading of what class counsel said what would happen what we still think the backdrop against which the tribe was making the decision which is as a member of a class that had been certified were present that had not been found to be an obstacle because of the unique nature of the claims at issue in the case should be an important factor that court will factor into whether or not equitable tolling should apply but had not been found by a single district court right i mean you're saying that that single district court should have had such power in the tribes mind that they didn't do the presentment and that that seems an extraordinary thing it's just a single district court a single district court has no control and authority over anyone or anything other then that particular decision that's true your honor and that particular decision had a direct impact on the menominee tribe because they were a member of the class they benefited from that decision they received payments out a settlement that the united states and class council had the court approved premised on the court having jurisdiction to be able to approve them they will benefit shortly next spring from another proposed settlement where the class council as well as the united states have proposed that the claims that will be signed by parties will serve as the present that to satisfy the and so while you can they be a member the judge addresses that question he says normally they couldn't be a member but they can hear because this is the kind of case that is at tacking general practices of the administration and ok on you've got that then shortly after that or maybe a few years after that another case comes along and the other case doesn't involve the situation of attacking the practices generally it concerns the individual contracts between the tribe in the indian bureau whatever you know in the government and there they say you can't have a class act so you'd think and this kind of case you want to bring now is the second khan not the first cause so you'd say why is it fair to let you bring this case after all if you had read the opinion closely in the first one you wouldn't have thought you should have waited if you had any doubts about it the second one would have told you you should have waited and even beyond that the administrators signs a piece of paper where they ask him do you have any claims under these contracts and he says none  so it doesn't seem you're talking up your equities but you have very strong grounds now watch your reply to that well i guess i would not agree with one of your premises probably wouldn't agree with any of it but not good but all your conclusion or what your but the premise that i disagree with that i think is very important is that the cherokee nation complaint alleged the same kinds of systemwide short findings by the united states that were contained in the  rain a complaint initially when it was certified only included one category of claims called miscalculation claims but later on during the pendency of the cherokee nation case additional claims were added and by the time the cherokee nation certification decision was issued the claims were for all intents and purposes the same and they challenge a systemic underfunding and short funding by the united states that was based on we know now from your court's decision in the cherokee case as well as the case on an incorrect reading of the law and they implemented that system wide the policies that the indian health service used to implement this short funding system were designed to short fun tribes because if they were designed the assumption that they were not statutorily entitled to one hundred percent funny so the nature of the claims in the charity case in my view your honor were the same as both were included in the rain the complaint initially and then as the complaint was amended over the course of the years by the time the cherokee nation started your not making that kind of going here are you i mean you're not challenging the general practices of the government rather you challenging the particular contracts and with the you've got enough money into them is that right that's correct your honor were in fact correct well then the fact that the second case emphasized the general you know the general attack which lacks in your case is more reason for thinking it we'd better file our claims quickly because what they held in those two cases are not going to help us who have an individual claim we better do it the statute says of the rules and we better file our present to the contracting officer and certainly not write the words none when they ask if you have any client in my right eye i would disagree with part of what you're suggesting your honor which is  that the tribe only had one option which was to file essentially after the cherokee nation's certification decision was issued in fact there was nothing in that decision that talk about present jurisdiction the court ruled on garden variety rule twenty three reasons and ordinarily those reasons are not a basis for class action tolling not to apply in fact crown cork is almost identical the same kinds of garden variety rule twenty three reasons were found in that case to bar the certification of a class but class action tolling in fact applied in that case so when you focus just on the cherokee nation decision itself i think there's tribe it identified all tribes that had self determination a contract with the union health service the tribe clearly felt within that definition and when the court ultimately ruled and chose not to certify the case the court said i could have identified who would have been part of this case because the government's own shortfalls identify each tribe by name and how much we actually short for short front of them in a given years but you haven't answered my question that's the only advice from a lawyer you honor that's correct that's the only advice in the record  i'd like to reserve my time thank you counsel a statute of limitations to pass because it wanted to monitor the litigation by other tribes rather than file and pursue its own action miscalculation that it made about whether the clear deadline could be extended by class action tolling that was a routine litigation mistake the kind that is far from the sort of extraordinary circumstance that could warrant equitable relief nor did that miscalculation prevent the tribe from filing earlier  that there was uncertainty as to whether it was a member of the cherokee nation class and whether presentment was a jurisdictional bar to that class membership the prudent course and any reasonably diligent litigant would have filed under the clear deadline brother then wait for the uncertain application of tolling and the potential forfeiture of its claims how did it know that if your kid nation he claims that the only decision was on under rule twenty it would seem to me as has happened in a number of litigations that it chime that the complaint is filed it doesn't mean that every member of the class has to have exhausted because if that's what it means and there can never be a class action i three are that are you can present so that issue is still open under the law because it would seem to me and i could be wrong that if you still have time on the clock when the complaint is filed but you can before you receive any remedy under the class action suit you can present exhaust th and recover if you've done it during the period that the six year period plus tolling that's what some courts have done they've defined the class as people who have exhausted or who still have time to accept that that's correct honor but if but if the tribe exhausted while it still had time during the pendency of the cherokee nation class action it we wouldn't be sitting here today secondly if it exhausted because let me just be clear that one of the problems with the class action our fundamental problem with the class action tolling argument is the tribe is trying to told the wrong deadline because action tolling doesn't apply to the choice of whether to file an individual lawsuit or to wait and participate in the classroom and risk forfeiting their right to the lawsuit but that doesn't apply to an administrative prerequisite that must be completed either way because that's not what american pie prefers to it refers to the time for filing a lawsuit and in any event the class action rule under american pipe american made clear that it only applies to a certain class members who would have been parties to the suit had it been permitted to continue as a class action and the tribe fails there too because it was jurisdictionally barred at the time the class decision was pending from participating in th pointed out two years before the cd a deadline would expire for the first claim and the tribe waited more than four years after class denial to present its claim there was no basis for waiting at that point the trying to do it must pursue an individual action and the only reason it waited was to hope that this court would more conclusively reject and did eventually conclusively reject the government's affirmative defense that it was asserting in that case unprecedented and in fact the fact that equitable telling us for closed follows directly from this court's case is simply a common litigation problem that this court has addressed time and again where lit the deadline is longer than it is believed there could claim accrued later than it did believe that towing applies and in fact it didn't that was the case in lawrence that was the some pace that was the case an earl when and in each of those cases court found a portable tolling did not hard can you explain something in your brief that would seem to make all of this beside the point you several times referred to a release form that covered the years impression and in the appendix of pages two forty two forty two if the if there was a release covering those years and why is anything  for the three years we are certainly on the merits we free with you that the release word for close the right of the try to collect on these particular years but we're at the preliminary stage which is to say whether we even got which basically allows for exception provides a place and the release for exceptions of claim and the tribalist agreed to not so what would happen if they were fused to well the declaration of the contracting officer that's in the record speaks to that point which said that there would be no adverse consequences to a tribe that refused to sign the release or that sign the release with exceptions it was a ministry of process for the agency to be able to close out the contract after a requisite contracting period but it's certainly significant as to what the tribe was thinking and its diligence as to the pursuit of its claims which is the concern of my portable talling so it turned  were consequences after all well there were no consequences in terms of its ability to contract with i asked or for the terms on which a contract with i just going forward i think that   but ultimately even without the release the tribe took no action to pursue its claim during the statutory period and counsel for the time suggest that we should have we the rules for  that the impediment to suit actually prevent the timely filing neither of those standards are met my answer in any circumstances in which will alliance on legal advice could  constitute the extraordinary circumstance required for a while will call on you and i think it's of this court has never recognised as such in holland it was the a very unusual circumstance where it was  mistakes by counsel but mistakes that really amounted to an abandonment by counsel was certainly not advice of counsel so that it's settled you know all the change circuit they've all ruled one way you don't think it's reasonable to give advice based on that might be an exceptional change well your honor i think in your hypothetical it would be the reliance on the binding circuit precedent not the reliance on counsel's advice per se if especially counsel's advice was was poorly poorly rendered but in the case if you're asking if there was a situation where binding preceden afforded more time to a litigant but yet later it was determined that less time was available that maybe maybe a circumstance could qualify for tolling but only where other factors are me the case in pace for example where the litigation and in that case really claim that he was relying on then binding an existing third circuit precedent and believing that his time for filing a federal hate b s action was told each one shook it i'm talking about the majority right over that have to change and and even in those cases like and duncan this scored change overturned of a large number of circuits in terms of the tolling standard and the lower courts did examine whether that could be an extraordinary circumstance but it wasn't enough to necessarily get tolling where they live again fail to otherwise exercise diligence in the pursuit of the original claim and here that would be clear yes exactly this court has and the questions of already suggested the tribes reliance on class action tolling in this case was not reasonable but even if it had some belief that the deadline one the tribe knew that it had to file proceed individually and the reason it waited in the words of the work liberation was that it wanted certainty  was the government harmed in any way by the lack of presumption well you're right in some respects that remains to be seen but i believe that prejudice may result from the failure to present in a timely fashion first of all putting aside the notice requirement this is a very records intensive inquiry and petitions proof they suggest that this is just a matter of records that are already stored in the government's possession but many of the inquiry of what actually the contract support costs would be required is a detailed and complex determination and in fact the experience and ramo highlights that's where the settlement negotiations have gone on for three years trying to determine what the actual damages are through good faith negotiations and so yes i would believe that the government has suffered prejudice as a result of now nearly twenty years later having to determine actual contract support had presented to the in the office and they just couldn't believe it that they would have to take an administrative appeal within ninety days or they have to the federal circuit within the year and that really can't be the case that the fact that once they file their claim it may then follow that additional limitations periods may kick in that that could wind delay in and of itself but even putting that aside there were other commission class action was in fact certified then then it may have an argument it's part of that class to the extent to which the cherokee nation class was denied then the only then the present  the necessary step to moving forward to presenting its claim individually at the contract for the contract appeals level or at the judicial level so i don't believe that the inevitability of further litigation with a few comments on the last point that council made the stamp in an envelope quote is more than hyperbole it it's just flat wrong there's cost incurred by the tribe to calculate the amount of claims there's a cost in pulling together the letter that then goes into the envelope that is the claim itself but more than that and your question alluded to this justice ginsburg that once once the claim is filed and the government undoubtedly as it did during this period of time with all of the claims that were filed they would have denied the claim that triggers another statute limitations either ninety days to appeal to civilian board of contract appeals or one year to appeal in federal district court and that deadline had been found by courts to be jurisdictional so in fact what we're talking about here is a conundrum because the six year statute limitations of the contract dispute that place these facts on top of what happened in cherokee nation it perfectly illustrates the conundrum seven hundred seven days it took for the certification process in that case if the tribe had filed at the beginning of that process and received a rejection of its claim during the first one hundred hundred fifty days let's give the government you know apple time to respond then it would have triggered a statute of limitations that west your sectional that the tribe would have had to have acted on in order to make sure that its climb was in fact going to still be alive and that would have happened before the end of the seven hundred seven days so it's more than a step in an envelope it really is a aware of and concerned about that partially factored into the tribes decision not to file clear so many people who don't have resources to pursue litigation how do we differentiate you from those millions of people with lack of resources who choose not to pursue claims either because they think at least up to then they're going to lose because that's the state of the law or for whatever other reason they're waiting how do we how do we articulate an equitable tolling principle that will open a floodgate making a statute of limitations basically anality well the primary basis your honor for the tribes position that equitable tolling should apply is it's reasonable reliance on class action told  the other factors such as the cost of litigation such as the united states is fiduciary responsibility and trust responsibility it was resorts and why didn't you litigate it there was no why didn't you take the order the the court below that an appeal battle while there were two cases both the federal circuit in the d c circuit ruled just about the same time on that issue and both concluded the same that class action tolling was not available because of the presentment required to it it seemed certain that question the arctic slope the other case did so there was no split in the circuits and the arctic slope case did in fact petition this court and this court didn't take the case so the tribe chose not to throw bad money after after a bad result which was guaranteed by preparing a petition cert which discord already denied in the arctic so native and there was no split but you had a split there was no split no your own when your decision  up no our decision on that issue there were two rounds of litigation at the court of appeals level in the first round both the federal circuit and the d c circuit held that class action tolling was not available and they both remained back to the trial courts to determine petition i also want to address the prejudice issue there's if there's anything in the government's briefs that strikes me as hyper boats that they were prejudiced they have been settling hundreds of these claims around the country these claims are very straightforward the contract the methodology that's used to calculate the entitlement for contract support costs are well established in policy we know the government produce shortfall reports contemporaneous with the years in which these claims accrued in which they told congress for each tribe how much they short funded them so that the government would tell you that their prejudiced because they would have to go back and look at the contract look at the policy in place at the time to calculate the amount  is just not just not credible in my view