Plaintiff & Intervenor Replies filed0ct.4th

[hermin1]

this is document 1104:

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
Case No. 03-2684L
and
Case No. 01-568L
Judge Charles F. Lettow
________________________________________
SHELDON PETERS WOLFCHILD, et al.,
Plaintiffs,
vs.
UNITED STATES,
Defendant
_____________________________________________
Wolfchild Plaintiffs’ Response to Motion for Reconsideration
_____________________________________________
Erick G. Kaardal
William F. Mohrman
Mohrman & Kaardal, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
Dated: October 4, 2011 Attorneys for Wolfchild Plaintiffs
Case 1:03-cv-02684-CFL Document 1104 Filed 10/04/11 Page 1 of 5
The Wolfchild Plaintiffs file this short response to the government’s motion for reconsideration of certain aspects of the August 5, 2011
decision.1 The Wolfchild Plaintiffs agree with the Court’s interpretat
ts Elimination Act,2 Distribution Act3 and the Tucker Act.4 The government’s statutory analysis involves specific, identifiable errors. First, on page 4 of the government’s motion, the government is mistaken that “the Reports Elimination Act did not terminate the requirement to submit the distribution plans to Congress under 25 U.S.C. § 1402(a).” To the contrary, the provisions cited by the government calling for the Secretary to submit a distribution plan to Congress were repealed in 1995 by the Reports Elimination Act.5 This federal law was designed to “alleviate the burden on the Executive Branch [and] to also allow the
1 The shortness of this response is not an indication that the issue of identifying the lineal descendants is not important. In fact, it is very, very important to the Wolfchild Plaintiffs’ continuing legal pursuits. To be put simply, the Wolfchild Plaintiffs desire that the Secretary of the Interior under COFC supervision identify each individual lineal descendant so that the confirmed lineal descendants’ statutory rights can be subsequently pursued in administrative, judicial and Congressional forums.
2Federal Reports Elimination and Sunset Act of 1995, Pub.L.No. 104-66, 109 Stat. 707 (“Reports Elimination Act”).
3 Indian Tribal Judgment Funds Use or Distribution Act, 25 U.S.C. § 1401, et seq. (“Distribution Act”).
4 28 U.S.C. § 1491 (“Tucker Act”). Op. at 40-42.
5 Pub.L. No. 104–66, 109 Stat. 707. 2
Case 1:03-cv-02684-CFL Document 1104 Filed 10/04/11 Page 2 of 5
utilizing their time.”6 This Act repealed certain provisions of law mandating the submission of reports to Congress as of the date of enactment or four years thereafter.7 The reporting requirements mandated by the Distribution Act under Sections 1402(a) and 1404 of Title 25 were among those repealed.8 Thus, contrary to the government's contentions, the Secretary is no longer required or allowed to submit its proposed distribution
Nonetheless, the government argues at page 4 that the Reports Elimination Act did not terminate “all reports found in House Document 103-7 but only any reports that were annual, semiannual or regular periodic.” The government’s interpretation contradicts the plain meaning of the statutory language of the Reports Elimination Act, “each provision of law requiring the submittal to Congress (or any committee of Congress) of any annual, semiannual, or other regular periodic report specified on the lists [prepared by the Clerk of the House of Representatives (House Document No. 103-7)] shall cease to be effective.”9 The phrase “any annual,
6 H.R.Rep. No. 104–327 (1995), 1995 WL 683033, at *23,
7 Id. at 25.
8 109 Stat. at 734–35 (eliminating the reporting requirements listed in H.R. Doc. No. 103–7 (1993)); H.R. Doc. No. 103–7, at 113 (listing reporting requirements under 25 U.S.C. § 1402(a) and § 1404 as among those being abrogated).
9 Pub.L. 104-66, Title III, § 3003, 109 Stat. 707, 734 (as amended)(emphasis added). 3
Case 1:03-cv-02684-CFL Document 1104 Filed 10/04/11 Page 3 of 5
semiannual, or other regular periodic report” is describing all “those reports specified on the lists.” A natural reading is that Congress wanted all the reports on the lists to be ceased – that is why the lists of reports were referred to. If Congress wanted to exclude reports from the lists from repeal, it could have done so. However, Congress did not exclude any reports from the lists. Thus, the government’s interpretation is in error.
Second, the government’s attempt on page 6 to salvage the Distribution Act based on the phrase “notwithstanding any other law” is unpersuasive. Congress in the Reports Elimination Act was repealing the reporting requirement of the Distribution Act. By the government’s interpretation, “notwithstanding any law” text could make any statute unrepealable – which is not true. A statute with “notwithstanding any other law” text can be repealed by Congress doing so – which happened with the Reports Elimination Act repealing the reporting requirement of the Distribution Act.
Third, the government on page 8 errs by arguing that the Distribution Act is severable. It is not severable because without the reporting requirement and deadline – all repealed by the Reports Elimination Act – the statute is “decimated” as the Court has noted.10 Nothing is left.
Accordingly, the Court has acted responsibly. To ensure an
10 Op. at 42.
4
Case 1:03-cv-02684-CFL Document 1104 Filed 10/04/11 Page 4 of 5
5
enforceable judgment, the Court has fallen back on its general powers under 28 U.S.C. § 1491 and RCFC 52.2 (a) and used the decimated Distribution Act as a guideline.11
CONCLUSION
For the foregoing reasons, the government’s motion for reconsideration should be denied in its entirety.
Dated: October 4, 2011.
Respectfully submitted,
/s/ Erick G. Kaardal
Erick G. Kaardal, No. 229647
Mohrman & Kaardal, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
Attorney for Plaintiffs
612-341-1074
f. 612-341-1076
11 Id. Case 1:03-cv-02684-CFL Document 1104 Filed 10/04/11 Page 5 of 5

Below is document 1105:

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
__________________________________________
SHELDON PETER WOLFCHILD, et. al., )
)
)
Plaintiffs, )
)
v. ) No. 03-2684L
)
THE UNITED STATES, ) Judge Charles Lettow
)
)
Defendant. )
)
__________________________________________)
PLAITIFF-ITERVEORS’ RESPOSE I OPPOSITIO TO THE
UITED STATES’ MOTIO FOR RECOSIDERATIO OF THE
COURT’S AUGUST 5, 2011 OPIIO AD ORDER, AS CORRECTED
R. Deryl Edwards MO# 48277
606 S. Pearl
Joplin, MO 64801-2582
[phone] (Telephone)
[phone] (Facsimile)
[e-mail]
ATTORNEY FOR THE ROBERTSON
VADNAIS LINEAL DESCENDANTS
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 1 of 21
ii
TABLE OF COTETS
STATEMENT OF THE CASE .………....……………………...................2
STANDARD OF REVIEW .……………………………………………….3
ARGUMENT ...…………………………………………………………….7
I. THE UNITED STATES’ MOTION TO RECONSIDER DOES NOT
RAISE AN ISSUE JUSTIFYING DEPARTURE FROM THE LAW OF
THE CASE .….……………………………………………………………..7
A. The Government’s Motion Does Not Claim The Discovery Of
“New And Different Material Evidence” That Was Not
Presented In The Prior Action Nor Any “Intervening Change Of
Controlling Legal Authority” .……..…………………………9
B. The United States’ Arguments Concerning The Federal Reports
Elimination Act, Final Judgment And The Alleged
Inconsistency Of The Court’s Order With The Distribution Act
Fail To Prove The Court’s August 5, 2011 Opinion And Order
Was Clearly Incorrect ..………….……………………………9
C. The Motion Fails To Establish That The August 5 Order
Would Work A Concrete Manifest Injustice Against
The United States ....…………………………………………11
CONCLUSION ..………………………………………………………….13
CERTIFICATE OF SERVICE ....……………………………………….....17
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 2 of 21
iii
TABLE OF AUTHORITIES
COURT OF FEDERAL CLAIMS RULES (RCFC):
RCFC 54(b) .………………………………………………………….3, 4, 5
RCFC 59 ..………….........................................................................1, 3, 4, 5
RCFC 60 ..………………………………………………………………….3
FEDERAL STATUTES:
Federal Reports Elimination and Sunset Act of 1995,
25 U.S.C. § 1402(a) …………………………………………..…8, 13
FEDERAL CASES:
Alpha I, L.P. v. United States, 86 Fed. Cl. 126, 129 (2009) ..…3, 6
Bannum, Inc. v. United States, 59 Fed. Cl. 241, 243 (2003) …….6
Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) ………….5
Cobell v. orton, 224 F.R.D. 266, 272 (D.D.C. 2004) ………..5, 6
Farmers Coop. v. United States, 2011 U.S. Claims LEXIS 1898
(September 20, 2011), Slip. Op. at 5-7 ….……………………5
Florida Power & Light Co., v. United States, 66 Fed. Cl. 93,
95-97 (2005) ………………………………………………….4
Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300
(1999) …………………………………………………………6
Henderson County Drainage Dist. o. 3 v. United States, 55 Fed.
Cl. 334, 337 (2003) …..……………………………………….6
Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698
(Fed. Cir. 2001) ………………………………………….3, 5, 7
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 3 of 21
iv
Klamath Irrigation Dist. v. United States, 68 Fed. Cl. 119, 120
(2005) …..……………………………………………………..4
L-3 Communs. Integrated Sys., L.P. v. United States, 98 Fed.
Cl. 45, 48-49 (2011) ……………………………………..3, 5, 6
Matthews v. United States, 73 Fed. Cl. 524, 525 (2006) .………..6
orthern Helex Co., v. United States, 225 Ct. Cl. 194, 201 (1980),
634 F.2d 557, 561 (1980) .………………………………11, 12
Potts v. Howard University Hospital, 623 F. Supp. 2d 68, 71
(D.D.C. 2009) …..…………………………………………5, 6
Short v. United States, 228 Ct. Cl. 535 (1981), 661 F.2d 150, 154
(1981) ………………………………………………………..11
Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101
(D.D.C. 2005) ...………………………………………………6
United States v. Turtle Mountain Band of Chippewa Indians, 222
Ct. Cl. 1, 8 (1979) ...…………………………………………11
Wolfchild v. United States, 68 Fed. Cl. 779, 785 (2005)
(Wolfchild II) ..……………………………..2, 4, 5, 7, 9, 10, 11
Yuba atural Resources., Inc. v. United States, 904 F.2d 1577,
1583 (Fed. Cir. 1990) …..…………………………………….3
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 4 of 21
I THE UITED STATES COURT OF CLAIMS
__________________________________________
)
SHELDON PETERS WOLFCHILD, et al., )
)
)
vs. ) Case No.: 03 – 2684L
)
UNITED STATES, ) Hon. Charles F. Lettow
)
Defendant. )
__________________________________________)
PLAITIFFS-ITERVEORS’ RESPOSE I OPPOSITIO TO
THE UITED STATES’ MOTIO FOR RECOSIDERATIO
Come Now, the Plaintiff-Intervenors, by and through their
undersigned counsel of record, and, pursuant to RCFC 59, herewith
collectively submit Intervening-Plaintiffs’ Response in Opposition to the
United States’ September 2, 2011 Motion for Reconsideration (Doc. # 1100)
of this Court’s August 5, 2011 Opinion and Order (Doc. # 1093) and
Judgment (Doc. # 1094), as corrected by this Court’s August 18, 2011 Order
(Doc. # 1097) and August 22, 2011 Corrected Judgment (Doc. # 1098) in the
captioned matter. The Plaintiffs submit the following in support of their
response in opposition to the Government’s Motion for Reconsideration:
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 5 of 21
2
STATEMET OF THE CASE
The Plaintiff-Intervenors submit that the United States’ motion for
reconsideration fails for several reasons. As a preliminary matter, the
Plaintiff-Intervenors join with the Plaintiffs in their arguments against the
Government’s motion.1 However, there are additional reasons why this
Court should overrule the motion.
In Wolfchild II,2 this Court detailed the criteria it would utilize in
reviewing a motion to reconsider interlocutory rulings. Among those criteria
was a requirement that the Government show that this Court’s prior rulings
were “clearly incorrect” and their preservation would work a “manifest
injustice.”3
The United States’ motion is fatally defective for its inability to make
a “strong showing of clear error” – on any of the three grounds stated in the
motion. Additionally, even if it could show clear error, the Government has
not made any showing, much less a prima facie showing, of manifest
injustice operable against the Defendant. The United States has not proven
any “exceptional circumstances” justifying the relief sought.
1 See Docket No. 1104, October 4, 2011.
2 Wolfchild v. United States, 68 Fed. Cl. 779, 785 (2005) (Wolfchild II).
3
Id., citing Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir.
2001).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 6 of 21
3
STADARD OF REVIEW
The applicable standard of review depends on the interlocutory
character of this Court’s August 5, 2011 Opinion and Order, as corrected.
Regardless of the finality of the judgment, the decision whether to grant
reconsideration lies largely within the discretion of the trial court.4
Reconsideration of final judgments is generally governed by RCFC
59(e) and RCFC 60.5 However, where a party seeks reconsideration and/or
clarification of an interlocutory decision, as in the case sub judice, different
RCFC provisions come into play.
The standards applicable to reconsideration of non-final decisions are
set forth in RCFC 54(b) and RCFC 59(a).6 RCFC 54(b) provides that “any
order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims and all the
parties' rights and liabilities.”7 RCFC 59(a)(1) provides that rehearing or
reconsideration may be granted as follows: “(A) for any reason for which a
4 Alpha I, L.P. v. United States, 86 Fed. Cl. 126, 129 (2009) (citing Yuba
atural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990)).
5 L-3 Communs. Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48-49
(2011).
6 Alpha I, Id., 86 Fed. Cl. at 129.
7 RCFC 54(b).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 7 of 21
4
new trial has heretofore been granted in an action at law in federal court; (B)
for any reason for which a rehearing has heretofore been granted in a suit in
equity in federal court; or (C) upon the showing of satisfactory evidence,
cumulative or otherwise, that any fraud, wrong, or injustice has been done to
the United States.”8
These two Court of Claims rules have been described as reflecting the
“precept that ‘courts possess inherent power to modify their interlocutory
orders before entering a final judgment.’”9 RCFC 54(b) expressly
recognizes that “any order or other form of decision is subject to revision at
any time before the entry of judgment.”10 RCFC 59(a)(1) permits
reconsideration “on all or some of the issues.” Among the basis for
reconsideration by the court is “for any reason for which a new trial has
heretofore been granted in an action at law in federal court.”11
Under federal common law principles, this court has power to
reconsider its prior decision on any ground consistent with application of the
8 RCFC 59(a)(1); see also Klamath Irrigation Dist. v. United States, 68 Fed.
Cl. 119, 120 (2005) (“a motion for reconsideration of the court's ruling on a
partial summary judgment motion may be filed under RCFC 59(a)(1)”).
9 Wolfchild II, 68 Fed. Cl. at 784 (citing Florida Power and Light Co. v.
United States, 66 Fed. Cl. 93, 95-97 (2005)).
10 RCFC 54(b).
11 RCFC 59(a)(1)(A).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 8 of 21
5
law of the case doctrine.12 This Court previously identified three reasons
warranting departure from the law of the case: (1) the discovery of new and
different material evidence that was not presented in the prior action, (2) an
intervening change of controlling legal authority, and (3) when the prior
decision is clearly incorrect and its preservation would work a manifest
injustice.13
As the present case remains in an “interlocutory posture”, the
Plaintiffs’ motion for reconsideration is reviewed under RCFC 54(b) and
RCFC 59(a), rather than the “more rigorous standards” of RCFC 59(e).14
Reconsideration under Rule 54(b) of the Federal Rules of Civil Procedure
differs from reconsideration under Rules 59 and 60, and “is available ‘as
justice requires.’”15 The Potts court defined the phrase “as justice requires”
as the following:
“as justice requires” indicates concrete considerations of whether the
court “has patently misunderstood a party, has made a decision
outside the adversarial issues presented to the [c]ourt by the parties,
has made an error not of reasoning, but of apprehension, or where a
12 Wolfchild II, 68 Fed. Cl. at 785 (2005)
13
Id., citing Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir.
2001); see also Farmers Coop. v. United States, 2011 U.S. Claims LEXIS
1898 (September 20, 2011), Slip. Op. at 5-7.
14 Wolfchild II, at 784.
15 L-3 Communs. Integrated Sys., Id., 98 Fed. Cl. at 48, citing Potts v.
Howard University Hospital, 623 F. Supp. 2d 68, 71 (D.D.C. 2009) (quoting
Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)); see also Cobell v.
orton, 224 F.R.D. 266, 272 (D.D.C. 2004)).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 9 of 21
6
controlling or significant change in the law or facts [has occurred]
since the submission of the issue to the court.”16
“[T]he ‘as justice requires’ standard amounts to determining ‘whether
reconsideration is necessary under the relevant circumstances.’”17
There are inherent restrictions on motions to reconsider. “The court
must consider such a motion with ‘exceptional care.’”18 Accordingly, the
movants “must do more than ‘merely reassert arguments which were
previously made and carefully considered by the court.’”19 A motion for
reconsideration is not intended, however, to give an 'unhappy litigant an
additional chance to sway' the court.20 “[W]here litigants have once battled
for the court's decision, they should neither be required, nor without good
reason permitted, to battle for it again.”21
16 L-3 Communs. Integrated Sys., Id., 98 Fed. Cl. at 49, (Potts, Id., 623
F.Supp.2d at 71; quoting Cobell, 224 F.R.D. at 272).
17 Potts, Id., (quoting Cobell, 224 F.R.D. at 272).
18
Henderson County Drainage Dist. o. 3 v. United States (Henderson
County), 55 Fed. Cl. 334, 337 (2003) (quoting Fru-Con Constr. Corp. v.
United States, 44 Fed. Cl. 298, 300 (1999)).
19 Bannum, Inc. v. United States, 59 Fed. Cl. 241, 243 (2003) (quoting
Henderson County, 55 Fed. Cl. at 337).
20 Alpha I, 86 Fed. Cl. at 129 (quoting Matthews v. United States, 73 Fed. Cl.
524, 525 (2006)).
21 Potts, 623 F. Supp. 2d at 71 (quoting Singh v. George Washington Univ.,
383 F. Supp. 2d 99, 101 (D.D.C. 2005)).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 10 of 21
7
ARGUMET
I. THE UITED STATES’ MOTIO TO RECOSIDER DOES
OT RAISE A ISSUE JUSTIFYIG DEPARTURE FROM THE
LAW OF THE CASE
In Wolfchild II, this Court articulated a review standard for
reconsideration of interlocutory orders such as this Court’s August 5, 2011
Opinion and Order, as corrected.22 Applying federal common law
principles, this court recognized its power to reconsider a prior decision on
any ground consistent with application of the law of the case doctrine.23
This Court identified three reasons which warranted departure from the law
of the case: (1) the discovery of new and different material evidence that was
not presented in the prior action, (2) an intervening change of controlling
legal authority, (3) when the prior decision is clearly incorrect and its
preservation would work a manifest injustice.24
The Plaintiff-Intervenors assert that the Government has failed to
identify any “exceptional circumstances” such as new material evidence, an
intervening change of controlling legal authority, or any grounds upon which
to conclude that this Court’s summary judgment rulings were manifestly
22
Wolfchild II, 68 Fed. Cl. 779, 784-785 (2005), citing Intergraph Corp. v.
Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001).
23 WolfchildII, Id.; see also Intergraph Corp., Id., (“The doctrine of law of
the case generally bars retrial of issues that were previously resolved.”)
24
Id.
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 11 of 21
8
erroneous. Thus, this Court’s August 5, 2011 rulings, as corrected, should
remain undisturbed.
The Government first argues “the Court has erred in finding that the
termination by the Federal Reports Elimination and Sunset Act of 1995 of
the requirement in 25 U.S.C. § 1402(a) to submit distribution plans to
Congress leaves substantial gaps in the Distribution Act.”25 The United
States next requests the Court to reconsider its August 5 Order, thereby
making it “a final judgment on all claims.”26 Finally, the Defendant
complains that the Court’s requirement that completion of a distribution plan
within one year of the Order and Judgment “would require Interior to begin
its efforts pending any appeal and prior to a final, non-appealable, judgment,
and may result in unnecessary expenditure of resources in the event this
Court’s judgment is reversed or modified.”27
As argued below, the United States’ Motion for Reconsideration does
not establish any of these three standards meriting reconsideration as a
matter of federal law.
25 United States’ Br. at 2.
26 U.S. Br., at 3.
27 Id., (emphasis added).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 12 of 21
9
A. THE GOVERMET’S MOTIO DOES OT CLAIM
THE DISCOVERY OF “EW AD DIFFERET
MATERIAL EVIDECE” THAT WAS OT
PRESETED I THE PRIOR ACTIO OR AY
“ITERVEIG CHAGE OF COTROLLIG LEGAL
AUTHORITY”
The Government’s motion for reconsideration does not address the
first two of the Wolfchild II standards. The Defendant does not cite to any
new, material evidence that was not presented in the most recent summary
judgment briefing. The United States likewise failed to cite any legislative,
administrative or judicial change in controlling legal authority otherwise
meriting reconsideration under the Wolfchild II standards. Consequently, the
motion for reconsideration must be reviewed on the sole basis that this
Court’s “prior decision is clearly incorrect and its preservation would work a
manifest injustice.”
B. THE UITED STATES’ ARGUMETS COCERIG
THE FEDERAL REPORTS ELIMIATIO ACT, FIAL
JUDGMET AD THE ALLEGED ICOSISTECY
OF THE COURT’S ORDER WITH THE DISTRIBUTIO
ACT FAIL TO PROVE THE COURT’S AUGUST 5, 2011
OPIIO AD ORDER WAS CLEARLY ICORRECT
The Government’s motion fails to establish any “concrete
considerations” justifying reconsideration of this Court’s August 5 Opinion
and Order.
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 13 of 21
10
As a preliminary matter, the Plaintiff-Intervenors submit that it is
noteworthy what issues the Government did not seek reconsideration. The
United States does not seek reconsideration of this Court’s finding that the
“government [was] in error to demand identification of plaintiffs and proofs
of descent throughout this case, under the Indian Judgment Distribution
Act.”28 The Government likewise does not seek reconsideration of the
Court’s order reimbursing the Plaintiffs and the Plaintiff-Intervenors for the
costs of determining eligibility.29 Finally, the United States’ motion notably
fails to request reconsideration of this Court’s finding that the Government
displayed an “unjustified litigation position,” which caused Plaintiffs and
Plaintiff-Intervenors to “expend resources that should have been borne by
the government.”30
Instead, the United States sets forth three reasons for reconsideration.
None of the three reasons articulated by the Government – all grouped under
the third “clear error/manifest injustice” prong in Wolfchild II - meet the
required “strong showing of clear error.” The Court of Claims has found
28 August 5, 2011 Opinion and Order, p. 38.
29 Id., at 39.
30 Id.
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 14 of 21
11
that the standard found under the third exception is a “stringent one.”31 In
United States v. Turtle Mountain Band of Chippewa Indians, the Court
stated, “[t]he purpose of the law-of-the-case principle is to provide finality to
judicial decisions.” A strong showing of clear error therefore is required
before a court should reexamine its decision.32
The United States’ motion for reconsideration fails to establish a
“strong showing of clear error.” The Court made a well-reasoned decision
based upon a complete summary judgment record on each of the three issues
briefed by the Government. The Plaintiff-Intervenors otherwise adopt the
reasons set out by the Plaintiffs in their response in opposition, which
concluded that the “Court has acted responsibly.”33 We agree.
C. THE MOTIO FAILS TO ESTABLISH THAT THE
AUGUST 5 ORDER WOULD WORK A COCRETE
MAIFEST IJUSTICE AGAIST THE UITED
STATES
The Government motion does not specifically address the “manifest
injustice” requirement of the third prong of the Wolfchild II analysis. This
oversight renders the motion defective as a matter of federal law.
31
Short v. United States, 228 Ct. Cl. 535 (1981), 661 F.2d 150, 154 (1981),
citing orthern Helex Co. v. United States, 225 Ct. Cl. 194, 201 (1980), 634
F.2d 557, 561 (1980);
32 222 Ct. Cl. 1, 8 (1979).
33 Plaintiffs’ Response in Opposition to U.S. Motion to Reconsider, Doc. #
1104, p. 4.
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 15 of 21
12
There are, however, possibly two colorable, indirect references in the
Government’s motion to the operation of “manifest injustice” against the
United States concerning the Defendant’s complaint regarding the
distribution plan. However, the United States must not only show “clear
error,” but must also establish the presence of manifest injustice, as well.
Accordingly, the Defendant’s challenge to the Court’s ruling on the Federal
Reports Elimination Act and the Government’s request for a final, rather
than interlocutory, judgment fail as reasons for reconsideration based upon a
lack of a clear showing of manifest injustice.
The Government must also base its motion upon a strong showing of
manifest injustice – not speculation. A mere suspicion of error, no matter
how well supported, does not warrant reopening an already decided point.34
The Defendant complains that the Court’s requirement that
completion of a distribution plan within one year of the Order and Judgment
“would require Interior to begin its efforts pending any appeal and prior to a
final, non-appealable, judgment, and may result in unnecessary expenditure
of resources in the event this Court’s judgment is reversed or modified.”35
The Defendant argues that this Court’s order directing the Secretary of
Interior to “submit the distribution plan one year from the date of the Court’s
34 orthern Helex, 225 Ct. Cl. at 201.
35 U.S. Br. at 3; (emphasis added).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 16 of 21
13
judgment is inconsistent with 25 U.S.C. § 1402(a).”36 It then asserts that to
comply with the Court’s order “would require significant effort by Interior
that may not be necessary, or change, as a result of any further proceedings
in this matter.”37
In each of the above examples, the Government’s motion for
reconsideration is based upon what “may” happen in the interim. However,
the Defendant’s speculation does not rise to provide a sufficient legal basis
for establishing manifest injustice. Consequently, the motion should be
denied in all respects.
COCLUSIO
WHEREFORE, the Plaintiffs-Intervenors request this Court to overrule the
United States’ Motion for Reconsideration of this Court’s August 5, 2011
Opinion and Order, as corrected, for the reasons stated herein and for such
other and further reasons as this Court deems just and proper.
36 U.S. Br. at 19.
37 Id., (emphasis added).
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 17 of 21
14
Respectfully Submitted,
s/ R. Deryl Edwards, Jr.
R. Deryl Edwards MO# 48277
606 S. Pearl
Joplin, MO 64801-2582
[phone] (Telephone)
[phone] (Facsimile)
[e-mail]
ATTORNEY FOR THE ROBERTSON
LINEAL DESCENDANTS
s/ Gary J. Montana
Gary J. Montana
Montana & Associates
N. 12923 N. Prairie Rd.
Osseo, WI 54758
Telephone No. 715.597.6464
ATTORNEY JULIA DUMARCE GROUP
GROUP B PLAINTIFF COORDINATOR
s/ Robin L. Zephier
Robin L. Zephier
ABOUREZK & ZEPHIER, P.C.
P.O. Box 9460
Rapid City, SD 57709
[phone]
ATTORNEY FOR ZEPHIER PLAINTIFFS
s/ Barry Hogan
Barry Hogan
Attorney, CPCU
RENAUD COOK DRURY
MESAROS, PA
One North Central, Suite 900
Phoenix, Arizona 85004-4417
ATTORNEY FOR THE RENAUD
JOHN DOES
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 18 of 21
15
s/ Randy V. Thompson
Randy V. Thompson, #122506
Robert J. Leighton, Jr., #220735
710 Lawson Commons
380 St. Peter Street
St. Paul, MN 55102
Telephone: [phone]
Fax: [phone]
ATTORNEYS FOR
PLAINTIFF/INTERVENORS
ABRAHAMSON GROUP
s/ Kelly Hope Stricherz
Kelly Hope Stricherz
213 Forest Ave
PO Box 187
Vermillion, SD 57069
605.624.3333
ATTORNEY FOR INTERVENORS’
MOZAK GROUP
s/ Scott A. Johnson
Scott A. Johnson (#124606)
Todd M. Johnson (# 52061)
JOHNSON LAW GROUP, LLC
10580 Wayzata Blvd., Suite 250
Minnetonka, MN 55305
ATTORNEYS FOR THE FELIX,
COURSOULLE, PRESCOTT AND
TAYLOR GROUPS OF PLAINTIFFS
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 19 of 21
16
s/ Jack Pierce
Jack E. Pierce
Pierce Law Firm, P.A.
6040 Earle Brown Drive
Suite 420
Minneapolis, MN 55430
[phone]
Fax: [phone]
Email: [e-mail]
ATTORNEY FOR THE GODOY ET AL.
INTERVENOR PLAINTIFFS
s/ Larry B. Leventhal
Larry B. Leventhal
Larry Leventhal & Associates
319 Ramsey Street
St. Paul, MN 55102
[phone]
Fax: [phone]
Email: [e-mail]
ATTORNEY FOR THE INTERVENOR BURLEY
PLAINTIFFS
s/ Creighton Thurman
Creighton A. Thurman
Creighton A. Thurman, Attorney at Law
P.O. Box 897
Yankton, SD 57078
[phone]
Fax: [phone]
Email: [e-mail]
ATTORNEY FOR THE COURNOYER,
ROBINETTE, KIMBELL AND WANNA
ET AL. INTERVENOR PLAINTIFFS
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 20 of 21
17
CERTIFICATE OF SERVICE
The Plaintiffs/Intervenor-Plaintiffs, by and through their respective
undersigned counsel, herewith certify that they transmitted the foregoing
Plaintiff-Intervenors’ Response in Opposition to the United States’ Motion
for Reconsideration by ECF transmittal, this 7th day of October, 2011.
s/ R. Deryl Edwards, Jr._
R. Deryl Edwards, Jr.
Robertson-Vadnais Plaintiffs
Case 1:03-cv-02684-CFL Document 1105 Filed 10/07/11 Page 21 of 21

[mdenney]

Monday, October 10, 2011
Two Recent (Albeit Late Posting) Documents
Regarding Defendant's Motion For Reconsideration



Document 1104 - Wolfchild Plaintiffs' Response to Motion for Reconsideration
The Wolfchild Plaintiffs' short response (5 page download) to the government's motion for reconsideration of certain aspects of the August 5, 2011 decision. MKLaw agrees with the Court's interpretations of the Reports Elimination Act, Distribution Act and the Tucker Act. (Entered: 10/04/2011)
freepages.genealogy.rootsweb.ancestry.com/~madalinerocque/documents/doc%201104.pdf


Document 1105 - Plaintiff-Intervenors' Response In Opposition to the United States' Motion for Reconsideration
of the Court's August 5, 2011 Opinion and Order, as Corrected.
The Plaintiff-Intervenors response (21 page download) submits that the United States' Motion for Reconsideration fails for several reasons. (Entered: 10/07/2011)
freepages.genealogy.rootsweb.ancestry.com/~madalinerocque/documents/doc%201105.pdf


NOTE: The Response was filed contending that the Joint Motion was premature because bills cannot be submitted until there is a final judgment. Judge Lettow concurred and further stated a final judgment cannot be issued until after October 21, 2011 because the possibility of an appeal remains open until October 21st.



All this was copied from the MADALINE ROCQUE Site link below-
freepages.genealogy.rootsweb.ancestry.com/~madalinerocque/lawsuit11.html