# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2016 Decided April 4, 2017

No. 16-5117

N AVAJO N ATION
, A FEDERALLY RECOGNIZED I NDIAN TRIBE
, N AVAJO N ATION D EPARTMENT OF J USTICE
, A PPELLANT

v.

U

NITED S TATES D EPARTMENT OF THE I NTERIOR AND R

YAN Z INKE
, IN HIS OFFICIAL CAPACITY AS S ECRETARY
, U

NITED S TATES D EPARTMENT OF THE I NTERIOR
, A PPELLEES

Appeal from the United States District Court
for the District of Columbia (No. 1:14-cv-01909)

Steven D. Gordon argued the cause for appellant. With him
on the briefs were Philip Baker-Shenk and Jessica Farmer

.

John S. Koppel , Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, and Mark R. Freeman , Attorney.

Before: K AVANAUGH and P ILLARD
, Circuit Judges , and
S ENTELLE
, Senior Circuit Judge

.2

Opinion for the Court filed by Senior Circuit Judge
S ENTELLE

.

Concurring opinion filed by Circuit Judge K AVANAUGH

.

S ENTELLE
, Senior Circuit Judge : The Navajo Nation delivered a proposed funding agreement to the Bureau of Indian Affairs, an agency within the United States Department of the Interior, during a partial government shutdown. By law, the BIA had 90 days after receipt to act on the proposal or it woul d be deemed approved. The BIA did not consider the proposal “received” until normal government operations later resumed, and issued a partial declination 90 days after that date. The Nation filed an action to enforce the proposal, contending that the BIA’s declination was untimely. The district court granted summary judgment to the DOI, holding that because the Nation
had remained silent when the BI A indicated its position on the deadline, the Nation was equitably estopped from asserting an earlier one. The Nation brought the present appeal. We revers e the judgment.

I. B ACKGROUND

Congress enacted the Indian Self-Determination and Education Assistance Act (“ISDEAA”) to help Indian tribes assume responsibility for programs or services that a federal agency would otherwise provide to the tribes’ members. 25 U.S.C. §§ 5301 et seq. The transfer of authority from the Department of the Interior (“DOI”) to a tribe is memorialized i n a “self-determination contract.” The ISDEAA includes a model contract specifying a multi-year term, with the funding amount for each year to be determined during subsequent negotiations and incorporated through annual funding agreements. Id. § 5329(c). When a tribe submits a proposed annual funding agreement to DOI, “the Secretary shall, within ninety days afte r3

receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification” to the tribe that the proposal is declined for one of five reasons provided by the statute. Id. § 5321(a)(2). “[T]he Secretary may extend or otherwise alter the 90-day period . . . if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe” to do so. Id. “A proposal that is not declined within 90 days (or within any agreed extension . . .) is deemed approved . . . .” 25 C.F.R. § 900.18.

In 2012, DOI Secretary Sally Jewell entered into a selfdetermination contract under the ISDEAA whereby the federal government would fund the Navajo Nation’s (“the Nation”) judicial operations from January 1, 2012 through December 31, 2016. The contract requires the parties to negotiate a separat e funding agreement for each calendar year that it covers.

On October 4, 2013, the Nation hand-delivered a proposalto Raymond Slim, an ISDEAA Specialist in the SelfDetermination Office in the Bureau of Indian Affairs (“BIA”) Navajo Regional Office. Slim marked it for intra-office mail delivery to Jeanette Quintero, a BIA official that the BIA clai ms is responsible for making award and declination decisions for the Nation’s contracts under the ISDEAA. However, Quintero was furloughed at that time pursuant to a partial government shutdown caused by a lapse in congressional appropriations. Quintero returned to work on October 17, 2013, when normal governmental operations resumed, and apparently received the proposal on that date.

On October 21, 2013—two business days after normal government operations resumed—the BIA sent a letter to the Nation acknowledging its receipt of the proposal. The letter stated that, due to the government shutdown, the BIA considered4

the proposal to have been received on October 17, 2013. The letter asserted that the BIA had until “90 days after October 1 7, 2013 to approve, decline, or award the proposal,” and that this “90-day period will end on January 15, 2014 .” (emphasis in original). The letter directed the Nation to contact Quintero or her colleague Frances Price if it had any questions. The Natio n did not respond to this letter.

On November 7, 2013, the BIA sent another letter to the Nation, this time identifying substantial changes between the proposal and the CY 2013 annual funding agreement, including the fact that the Nation’s requested budget amount had increase d from about $1.3 million to over $17 million. The letter requested that the Nation respond to the BIA’s concerns by November 29, 2013, so tha t the BIA could co mplete its review of the proposal, and stated that the BIA would “hold the approval” of the proposal until the Nation submitted the requested documents. The letter directed the Nation to contact Quintero, Price, or their colleague Daniel Largo, Jr., if it ha d any questions. The Nation did not respond to this letter.

If the proposal was properly “received” on the date it was hand-delivered (October 4), rather than on the date government operations resumed (October 17), then the 90-day window for the Secretary to act on it closed on January 2, 2014, rather th an January 15 as asserted by the BIA. But the BIA neither approved nor denied the proposal by January 2, 2014, nor did it ever receive the Tribe’s “express written consent” to an
extension of time within which to do so.

On January 9, 2014, the BIA sent a letter to the Nation requesting a 45-day extension to the 90-day window. The BIA stated that it was requesting the extension so that the Nation could have additional time to respond to the issues raised in t he BIA’s November 7 letter. Again, the letter directed the Nation5

to contact Quintero, Price, or Largo with any questions. The Nation did not respond to this letter.

On January 15, 2014—according to the BIA, the last day of the 90-day window—the BIA sent the Nation a letter partially declining the proposal. The BIA authorized approximately $1.3 million in funding rather than the approximately $17 million requested.

On January 27, 2014, the Nation sent the BIA a letter asserting that the 90-day review window had actually closed on January 2, 2014— i.e. , 90 days after the Nation delivered the proposal to the Regional Office. The letter stated that the BIA’s partial declination was therefore untimely and that the proposa l was automatically deemed approved as a matter of law.

On February 7, 2014, the BIA sent the Nation a letter explaining that the partial declination was timely because delivery of the proposal to Slim did not constitute receipt by the Secretary as Slim was only authorized to perform work for contracts relating to road construction during the partial shutdown. The BIA contended that during the partial shutdown no BIA employee was authorized to receive or work on the Nation’s proposal, so the 90-day review period did not begin until the authorized employees returned to work on October 17,
2013.

The Nation filed the instant action in November 2014 seeking to enforce the proposal. The district court denied the Nation’s motion for summary j udgment and granted the BIA’s cross-motion for summary judgment, finding that because the Nation was silent in response to the BIA’s letters announcing i ts position on the deadline for action, the Nation was equitably estopped from asserting an earlier deadline. The Nation appealed.6

II. D ISCUSSION

A. Receipt

The BIA asserts that the Nation’s proposal was not “received” by the agency on Oc tober 4, 2013, notwithstanding that, on that day, the Nation hand-delivered the proposal to an agency employee at the BIA’s Navajo Regional Office. Although the district court did not reach this question, it is nonetheless appropriate for this Court to resolve it. See Proctor
v. State Farm Mut. Auto. Ins. Co. , 675 F.2d 308, 325-26 (D.C. Cir. 1982) (citing Singleton v. Wulff , 428 U.S. 106 (1976)).

“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Mgmt.
Dist. , 541 U.S. 246, 252 (2004) (internal quotation marks omitted). The word “receive” is not defined in the ISDEAA. Considering the plain meaning of the word, it is difficult to escape the conclusion that Slim’s unconditional acceptance of the Nation’s proposal hand-delivered to him on October 4, 2013, constituted receipt on that day. See Webster’s Third New Int’l Dictionary 1894 (3d ed. 2002) (defining “to receive” as “to tak e possession or delivery of” or “to admit or accept in some character or capacity”).

DOI’s “Internal Agency Procedures Handbook for NonConstruction Contracting Unde r Title I of the [ISDEAA]” (“Handbook”) notes that the 90-day deadline for action begins upon “receipt by the agency.” The Handbook defines “agency” as “the individual operating divisions or bureaus of . . . the DOI,” including “offices.” The Handbook, then, suggests that a proposal’s arrival at any BIA office constitutes receipt. A subsequent section titled “Receipt of Initial Contract Proposal ” also supports this straightforward reading by suggesting that7

“receipt” immediately precedes the date-stamping of a proposal upon “arriv[al] in any office.” Indeed, the Handbook notes that the BIA is required to respond within 90 days of receipt even b y an office without the authority to process proposals. See Yurok Tribe v. United States Dep’t of Interior , 785 F.3d 1405, 1410-11 (Fed. Cir. 2015) (rejecting the government’s argument that a proposal must be sent to a partic ular office within the BIA).

DOI asserts that Slim was legally incapable of accepting the proposal on behalf of the Secretary during the partial shutdown due to the Anti-Deficiency Act (the “Act”). The Act expressly prohibits agencies from incurring obligations in excess of appropriations, including the em ployment of federal personnel during a lapse in appropriations, such as a shutdown. 31 U.S.C

. §§ 1341(a), 1342. Only excepted or exempted employees may work during a shutdown. Excepted employees are employees who are authorized to work on specific assignments to protect human life and property. Id. § 1342. Exempted employees are those whose salaries are paid out of a source of funding other than annual appropriations and therefore are not implicated by
the Act. See Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations , 43 U.S. Op. Atty. Gen. 293, 298 (1981); see also BIA Contingency Plan Q&A Document (Sept. 27, 2013).

According to DOI, there were no excepted or exempted employees in the BIA’s Navajo Regional Office authorized to receive or work on ISDEAA contracts during the government shutdown. Slim, exempt from the Act because his salary was funded from multi-year appropriations, was “specifically
authorized to receive or work on contracts related to road
construction” but could not “work on contracts such as the Navajo Nation’s . . . .” DOI asserts that because no source of appropriated funds was available for Slim to receive the proposal on behalf of the Secretary during the partial shutdown

,8

it would have been a violation of the Act for him to do so. Bu t DOI concedes that Slim was permitted to engage in the “ de
minimis non-exempt function[]” of “marking the CY 2014 proposal for intra-office mail delivery.” DOI does not explain how he could have so processed a document not yet received.

Nevertheless, DOI argues, Slim lacked the authority to “receive” the proposal on behalf of the Secretary; thus, it contends, his acceptance of the proposal did not trigger the regulatory deadlines at issue in this case. However, while “th e Anti-Deficiency Act’s requirements ‘apply to the official, . . . they do not affect the rights in this court of the citize n honestly contracting with the Government.’” Salazar v. Ramah Navajo Chapter , 132 S. Ct. 2181, 2193 (2012) (quoting Dougherty v. United States , 18 Ct. Cl. 496, 503 (1883)). For example, although the Act prohibits a government agency from incurring obligations in excess of appropriations, if the agenc y nevertheless obligates itself to spend in excess of appropriati ons, it does not cancel the agency’s obligations nor defeat the righ ts of other parties. Salazar , 132 S. Ct. at 2193 (citing Ferris v.
United States , 27 Ct. Cl. 542, 546 (1892)); see also WetselOviatt Lumber Co. v. United States , 38 Fed. Cl. 563, 570 (1997) (holding that the Act will not “shield the government from liability where the government has lawfully entered into a contract with another party”). Likewise, even if Slim violated the Act by accepting the Navajo Nation’s proposal, the agency is nonetheless bound by the consequences of him doing so. In short, even if DOI’s position were otherwise correct, it would prove at most that its employee should not have received the document, not that he did not receive it.

B. Equitable Principles

DOI alternatively asserts two equitable principles that it argues excuse any untimeliness. First, DOI argues that the9

Navajo Nation is equitably estopped from disputing the timeliness of the declination after remaining silent in the fac e of the BIA’s repeated assertions of its position on the matter. Second, DOI argues that equitable tolling of the 90-day deadlin e is appropriate for the period of the government shutdown. We disagree. Such equitable relief is inappropriate in this case.

Equitable doctrines are grounded in fairness and justice, Anglo-Am. Sav. & Loan Ass’n v. Campbell , 13 App. D.C. 581, 603-04 (D.C. Cir. 1898); In re Ionosphere Clubs, Inc. , 85 F.3d 992, 999 (2d Cir. 1996), and their application implies the occurrence of atypical circumstances. Equitable estoppel does not arise in this case. The government itself has consistently taken the position that estoppel does not apply against the sovereign United States. It thus ill-behooves the government t o seek to impose such an uncommon action against another sovereign, especially one to which it owes a “distinctive obligation of trust.” Seminole Nation v. United States , 316 U.S. 286, 296 (1942). In its dealings with the Indians, the United States government “has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclose d in the acts of those who represent it in dealings with the Indians

, should therefore be judged by the most exacting fiduciary
standards.” Id. at 297.

Nor does this case present the sort of “extraordinary circumstances” that justify equitable tolling. See Menominee Tribe of Wis. v. United States , 136 S. Ct. 750, 755 (2016) (holding that circumstances must be sufficiently “extraordinary ” to support equitable tolling). Government stoppages are hardly unforeseeable. If the government believes it cannot “receive” documents during a stoppage, it should instruct its employees not to receive them, rather than expect its citizens and its co urts to “equitably” pretend it has not done so. There is no evidenc e in the record that the BIA made any effort to prevent personnel10

such as Slim from “receiving” proposals, or to inform tribes th at it would not “receive” proposals during the shutdown.

DOI argues that the Court’s holding will lead to “absurd result[s]”—for example, if a lapse in appropriations lasted longer than 90 days, any proposals “received” at offices withou t excepted or exempt employees authorized to decline them would be automatically deemed approved during the lapse. Again, DOI, not its clients, has the authority to instruct its own employees on what they cannot do. Further, in this case, the BIA lost only the first 13 of the 90 days it had to act on the proposal. DOI concedes that the BIA had sufficient time to review and respond to the proposal by asserting that “the BIA’s declination analysis did not change after November 7” and the BIA “could have issued its declination decision at any time aft er November 7.” Yet, inexplicably, it failed to do so. The Court will not reward DOI’s lack of diligence in the name of “equity. ”

C. Award Amount

Finally, DOI argues that even if the proposal is deemed approved, the Nation cannot be a warded funds in excess of the “Secretarial amount.” When a proposal is deemed approved, “the Secretary shall award the contract or any amendment or renewal within that 90-day period and add to the contract the full amount of funds pursuant to section 106(a) of the [ISDEAA].” 25 C.F.R. § 900.18. DOI argues that because § 106(a) provides that the Secretary may decline a proposal if the amount of funds proposed “is in excess of the applicable funding level for the contract,” 25 U.S.C. § 5321(a)(2)(D), the BIA cannot be required to award funding in excess of the amount of funds the BIA would otherwise have expended on the particular program or service for the tribe. In short, DOI seeks to transform the funding floor into a ceiling. This argument h as been oft rejected. See Yurok Tribe , 785 F.3d at 1412 (noting11

that the statute, “by its clear terms, sets a floor, not a ceil ing, onthe amount of money that a Tribe can receive in a selfdetermination contract”); Seneca Nation of Indians v. United States Dep’t of Health & Human Servs. , 945 F. Supp. 2d 135, 150-51 (D.D.C. 2013) (noting that the § 106(a) or Secretarial amount is not immutable and can be increased by the Secretary). The cited portions of the ISDEAA do not “support the government’s claim that self-determination contracts are limite d to funding for programs the government currently provides to the requesting tribe.” Yurok Tribe , 785 3d at 1412-13.

III. C ONCLUSION

For the reasons set forth above, the district court’s decision denying the Navajo Nation’s motion for summary judgment and granting the BIA’s cross-motion for summary judgment is
reversed.

So ordered.K AVANAUGH
, Circuit Judge

, concurring : I join the Court’s opinion. I add this brief concurrence to explicitly state
that equitable tolling may apply in certain government shutdown situations. The doctrine does not apply on the facts here, however, because the BIA had plenty of time after it reopened on October 16 , 2013

, to meet the 90

- day statutory
deadline at issue in this case.