United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2016 Decided April 4, 2017

No. 16-5117

NAVAJO NATION, A FEDERALLY RECOGNIZED INDIAN TRIBE,

NAVAJO NATION DEPARTMENT OF JUSTICE,

APPELLANT

v.

UNITED STATES DEPARTMENT OF THE INTERIOR AND

RYAN ZINKE, IN HIS OFFICIAL CAPACITY AS SECRETARY,

UNITED STATES DEPARTMENT OF THE INTERIOR,

APPELLEES

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: KAVANAUGH and PILLARD, Circuit Judges, and

SENTELLE, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

Concurring opinion filed by Circuit Judge KAVANAUGH.

SENTELLE, 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 would

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 BIA indicated its position on the

deadline, the Nation was equitably estopped from asserting an

earlier one. The Nation brought the present appeal. We reverse

the judgment.

I. BACKGROUND

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 in

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 after
3

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 separate

funding agreement for each calendar year that it covers. 

On October 4, 2013, the Nation hand-delivered a proposal

to 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 claims

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 considered
4

the proposal to have been received on October 17, 2013. The

letter asserted that the BIA had until “90 days after October 17,

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 Nation

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 increased

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 that the BIA could complete 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 had 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 than

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 the

BIA’s November 7 letter. Again, the letter directed the Nation
5

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 proposal

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 judgment 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 its

position on the deadline for action, the Nation was equitably

estopped from asserting an earlier deadline. The Nation

appealed. 
6

II. DISCUSSION

A. Receipt

The BIA asserts that the Nation’s proposal was not

“received” by the agency on October 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 take

possession or delivery of” or “to admit or accept in some

character or capacity”). 

DOI’s “Internal Agency Procedures Handbook for NonConstruction Contracting Under 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 that
7

“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 by

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 particular 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 employment 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. But

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 “the

Anti-Deficiency Act’s requirements ‘apply to the official,

. . . they do not affect the rights in this court of the citizen

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 agency

nevertheless obligates itself to spend in excess of appropriations,

it does not cancel the agency’s obligations nor defeat the rights

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 the
9

Navajo Nation is equitably estopped from disputing the

timeliness of the declination after remaining silent in the face of

the BIA’s repeated assertions of its position on the matter. 

Second, DOI argues that equitable tolling of the 90-day deadline

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 to

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 disclosed 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 courts

to “equitably” pretend it has not done so. There is no evidence

in the record that the BIA made any effort to prevent personnel
10

such as Slim from “receiving” proposals, or to inform tribes that

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 without

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 after

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 awarded 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 has

been oft rejected. See Yurok Tribe, 785 F.3d at 1412 (noting
11

that the statute, “by its clear terms, sets a floor, not a ceiling, on

the 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 limited

to funding for programs the government currently provides to

the requesting tribe.” Yurok Tribe, 785 3d at 1412-13. 

III. CONCLUSION

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.
KAVANAUGH, 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.