Legal Case Summary

We will hear argument next in case 14, 5, 10, a manominee Indian tribe of Wisconsin versus the United States. Mr. Strahlmer? Mr. Chief Justice, may it 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 that equitable tolling under Hollins should apply. In the Erwin case, this Court specifically cross-reference American pipe as an example of a defective pleading that could satisfy equitable tolling, American pipe, obviously being 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 proved to be ineffective, that that individual has the ability to ask the Court to find that equitable tolling should apply. If there is such a case, the facts of this case really should satisfy this test. The test is set forth in the Holland case. Do diligence and extraordinary circumstances are the two prongs that have to be satisfied? Both of them are well-satisfied in this case. First, the Monomony Tribe relied on a pre-existing class action which dealt with almost identical substantive claims against the United States. Are you talking about the Rama? Yes, correct, Justice Ginsburg. And that was a decision, unpublished decision by a district court that never went any further. Well, it is still a certified class, Justice Ginsburg, and the Monomony 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, is poised to receive another large payment in a settlement that the class and the United States have asked for to approve. 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, we'll go later to exhaustion when that's a separate question. So how could you reasonably rely on a lower court decision that hasn't gone through the crucible of a pellet review without having done any research on whether its premises were subject to dispute, reasonable dispute, and rely on that? Well, Justice Sotemaira, I have a couple of answers to your question. First of all, the United States did not challenge the certification of the class in the Rayma case, not when it was originally certified based on the claims that were then in the case miscalculation claims, nor later on when the additional argument just lost. They raised the argument that the exhaustion requirement didn't meet in the commonality prong of class certification. So they did make an argument against it. Or they argued, but the district court judge in the Rayma case, reasonably we think, concluded that because of the unique nature of the claims that the Rayma class was seeking to believe. But every other court up until that time had said, no, you need it to exhaust. 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 rely on the fact that the manani tried didn't rely just on that case? 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 resentment as a defense. Instead, it raised rule 23 grounds as a basis not to certify the class. And the district court judge in that case on garden variety rule 23 grounds ruled that that case could not be certified. Didn't say anything in his order about resentment, 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. All of this goes to deciding whether the legal advice they received was a 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 you're really, you're really arguing a remarkable proposition that if you get bad legal advice, that justifies equitable tolling. Well, you mentioned extraordinary circumstances, but there are. Are cases referred to extraordinary circumstances that stood in the way and prevented timely filing? I would not qualify erroneous legal advice as preventing 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 judgment called 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 presentment, nothing about jurisdiction, the government didn't raise that defense, focused only on rule 23 issues, in any case in which a district court judge declines to certify a class, if equitable tolling isn't available as a fallback, then the most of you want to speak. The limit our principle, erroneous legal advice justifies erroneous equitable tolling only in class action cases. No, I would frame it slightly differently, Your Honor. I would say that when a party reasonably relies on class action tolling that at a later date is found to be in a- What's the limit to class actions? You don't want to- Why should it be limited to class actions? Well, the party's not going to show it's legal advice justifies equitable tolling. Why should it be limited to class actions? Well, the Holland test still has to be satisfied, Your Honor. Have to show due diligence. Have to show extraordinary circumstances. That may go on. Eliminate the tolling

. That may go on. Eliminate the tolling. But if legal advice prevents timely filing in class action situations, I don't know why Bad Legal Advice doesn't prevent timely filing in every other situation as well. I just don't- It's sort of a weird rule just for class actions. Well, Justice Scalia, the circumstances in this case are extraordinary and are very rare. It is very unlikely that you will find another circumstance where a pre-existing 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. What was the length of time between the denial of class certification and the presentment? Was it a long time, wasn't it? The total amount was 707 days, Your Honor. So why was that due diligence? I mean, I know that we're not arguing about due diligence, but it seems to me that when it was- Certification was denied in the Cherokee case. You had two years to present and you would have been home free. You would not have encountered a time bar. Two years. But you, in fact, didn't present until four years after the denial and the sort of in the Cherokee case. So how was that due diligence? Well, in the context of reliance on class action tolling applying, Your Honor, it is due diligence. And it's reasonable diligence. In a class action environment, a party is not encouraged to do anything. And a party is entitled to- But the class action is over

. It's been denied. Why- The class action has been denied. Correct. So at that point, you know you're on your own. You can't piggyback on the class. You know you're on your own and yet you let two years go by. I don't understand that. Well, Your Honor, under class action tolling rules, you're entitled to the entire period that the class action certification was pending. That's 700 days. It's automatically- That's not quite true. There's a circuit split which hasn't been addressed anywhere in the briefing. Some of the circuits do it the way you say. They stop the clock and restart the clock at the end of the told period. In those circuits, you would win. You could wake the entire six years plus however long the other case was pending. But another series of circuits looked to diligence throughout 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's certainly in any class action environment a risk in relying on class action tolling, particularly as the facts of this case demonstrate if ultimately- Let's go back to the class action. All of these decisions. Were they made with the advice of a lawyer? 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 file. 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 there legal advice? They relied on legal advice provided by class counsel who communicated with all punitive class members and made it clear that the tolling period would apply during the penance of the certification. And they also made- If we disagreed that that was- If we think that was unreasonable, what- You're reading of what class counsel said, what would happen? Well, 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 where presentment had not been found to be an obstacle because of the unique nature of the claims had issue in the case, should be an important factor that this court will factor into whether or not equitable tolling should apply. But it 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 tribe's mind that they didn't do the presentment. And 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 than that particular decision. That's true, Your Honor, and that particular decision had a direct impact on the monomony tribe because they were a member of the class. They benefited from that decision. They received payments out of settlements that the United States and the class counsel had the court approve, 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 counsel as well as the United States have proposed that the claims that will be signed by parties will serve as the presentment to satisfy the jurisdictional requirement

. So yes, they did benefit. And that was not an unbenefitable point. The point is there is one court that says your tribe can be a member. Your tribe didn't present its claim to the contracting officer. And so why 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 attacking general practices of the administration. Then, okay, you 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 and the Indian bureau, whatever, in the government. And there they say you can't have a class action. So you'd think, and this kind of case you want to bring now is the second con, not the first con. So you'd say why is it fair to let you bring this case? After all, if you'd read the opinion closely, and 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 like you're talking about pure equities. You have very strong grounds. Now what you're replied to that? Well, I would not agree with one of your premises. Probably, wouldn't you agree with any of them? Not your conclusion or what your premise is. But the premise that I disagree with that I think is very important is that the Cherokee Nation complaint alleged the same kinds of system-wide short fundings by the United States that were contained in the Raymock complaint. The Raymock 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 challenged 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 Raymock 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 fund tribes because they were designed based off of the assumption that they were not statutorily entitled to 100% funding. So the nature of the claims in the Cherokee case, in my view, your honor, were the same as both were included in the Raymock complaint initially, and then as the complaint was amended over the course of the years, by the time the Cherokee Nation cert- You're not making that time to come here, are you? I mean, you're not challenging the general practices of the government, rather you're challenging the particular contracts, and whether you've got enough money under them. Is that right? That's correct, Your Honor. If that's 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. We 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 what the statute says or the rules, and we better file our resentment to the contracting officer. And certainly, you're not right, the words none, when they ask you if you have any claim

. Am I right? 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 talked about resentment and jurisdiction. The court ruled on Garden Variety rule 23 reasons. And ordinarily, those reasons are not a basis for class action tolling, not to apply. In fact, Crown Court is almost identical. The same kinds of Garden Variety rule 23 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 every reasonable reason to be able to rely on class action tolling. Now. I just want to clarify one point on this issue that you were a member of the class. You rely just on Council's letter in the first case in Ramen. The letter that were a council described the class and said there would be a- In Cherokee Nation? No, in the prior case. No, in the Reyma case, the tribe is a member of the class. It's received something. No, no, no, no. You said that the lawyers had told you that there would be class action tolling. That was generally the case

. That's in the Cherokee Nation case, you're on. Yes. And they said that when they filed the complaint. The complaint clearly included the tribe. It identified all tribes that had self-determination act contracts with the Indian Health Service. The tribe clearly fell 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 shortfunded them in the given years. But you have an answer to my question. That's the only advice from a lawyer you receive. Yes, Your Honor. That's correct. That's the only advice in the record. I'd like to reserve the balance by time. Thank you, Council. Mr. Chief Justice, I may please the court

. Just as so to my york, you stated the tribe determined that it was not going to win on the law and so it decided not to file. Indeed, the tribe made a strategic calculation here to allow the six-year CDA statute of limitations to pass because it wanted to monitor the litigation by other tribes rather than file and pursue its own action. The miscalculation that it made about whether the clear deadline could be extended by class section 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 to the extent that there was uncertainty as to whether it was a member of the Cherokee Nation class and whether the presentment was a jurisdictional bar to that class membership. The prudent course in any reasonably diligent litigant would have filed under the clear deadline rather than wait for the uncertain application of tolling and the potential forfeiture of its claims. How did it know that in Cherokee Nation? The claims that the only decision was on under Rule 23 and that presentment and tolling was not an issue here. Your Honor, the tribe confuses the definition of the class and the class certification decision with its own jurisdiction, whether the court's own jurisdiction over its claim. So the tribe itself was jurisdictionally barred from the class membership regardless of how the class was defined. There was no need necessarily for the class to be carved out those over whom the district court lacks jurisdiction. The fact that the court lacked jurisdiction flows from the fact that the tribe failed to meet the mandatory presentment requirement. Well, let's talk about the American, but tolling. It would seem to me as has happened in a number of litigations that at the time 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, then there can never be a class action. I agree, Your Honor, that they can present. And 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, that you can, before you receive any remedy under the class action suit, you can present exhaust then 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 exhaust. That's correct, Your Honor, but if the tribe exhausted while it still had time during the pendency of the Cherokee Nation Class Action, we wouldn't be sitting here today. Secondly, if it exhausted, let me just be clear that one of the problems with the class action or a fundamental problem with the class action tolling argument is the tribe is trying to told the wrong deadline. Class action tolling doesn't apply to the time to file administrative prerequisites to suit. It applies to the time for filing a lawsuit in federal court. And that is a good reason for that. And that's because the policy of class action tolling is to relieve litigants of the difficult choice of whether to file an individual lawsuit or to wait and participate in the class and risk forfeiting their right to the lawsuit. But that doesn't apply to an administrative prerequisite that must be completed either way, whether the tribe proceeded individually or as a class, the first step and mandatory step it had to take was to present its claim. And it failed to do that within the requisite time. This is slightly different argument. You're saying they can't get equitable told for exhaustion of the administrative process. Your Honor, I'm saying. Even if they could get told for filing a lawsuit. Yes, Your Honor, they can't get class action tolling for the time, the administrative period because that's not what American pipe refers to. It refers to the time for filing a lawsuit. And in any event, the class action rule under American pipe, American pipe may clear that it only applies to asserted 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 the suit

. That's correct, Your Honor, but if the tribe exhausted while it still had time during the pendency of the Cherokee Nation Class Action, we wouldn't be sitting here today. Secondly, if it exhausted, let me just be clear that one of the problems with the class action or a fundamental problem with the class action tolling argument is the tribe is trying to told the wrong deadline. Class action tolling doesn't apply to the time to file administrative prerequisites to suit. It applies to the time for filing a lawsuit in federal court. And that is a good reason for that. And that's because the policy of class action tolling is to relieve litigants of the difficult choice of whether to file an individual lawsuit or to wait and participate in the class and risk forfeiting their right to the lawsuit. But that doesn't apply to an administrative prerequisite that must be completed either way, whether the tribe proceeded individually or as a class, the first step and mandatory step it had to take was to present its claim. And it failed to do that within the requisite time. This is slightly different argument. You're saying they can't get equitable told for exhaustion of the administrative process. Your Honor, I'm saying. Even if they could get told for filing a lawsuit. Yes, Your Honor, they can't get class action tolling for the time, the administrative period because that's not what American pipe refers to. It refers to the time for filing a lawsuit. And in any event, the class action rule under American pipe, American pipe may clear that it only applies to asserted 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 the suit. So even if Cherokee Nation had been certified during the pendency of the class certification determination, the tribe was barred. But importantly, the Cherokee Nation class was not granted. It was denied. And it was denied as just as Ginsburg pointed out two years before the CDA 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 tribe knew 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. But the idea that a tribe or any litigant who could have acted earlier chooses to delay for strategic reasons and then could get tolling when it finds out that it miscalculated the deadline would be unprecedented. And in fact, the fact that equitable tolling is foreclosed follows directly from this court's case. It's simply a common litigation problem that this court has addressed time and again where a litigant believes the deadline is longer than it is, believes their claim accrued later than it did, believes that tolling applies. And in fact, it didn't. That was the case in Lawrence. That was the case in PACE. That was the case in Irwin. And in each of those cases, the court found equitable tolling did not apply. Thank you

. So even if Cherokee Nation had been certified during the pendency of the class certification determination, the tribe was barred. But importantly, the Cherokee Nation class was not granted. It was denied. And it was denied as just as Ginsburg pointed out two years before the CDA 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 tribe knew 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. But the idea that a tribe or any litigant who could have acted earlier chooses to delay for strategic reasons and then could get tolling when it finds out that it miscalculated the deadline would be unprecedented. And in fact, the fact that equitable tolling is foreclosed follows directly from this court's case. It's simply a common litigation problem that this court has addressed time and again where a litigant believes the deadline is longer than it is, believes their claim accrued later than it did, believes that tolling applies. And in fact, it didn't. That was the case in Lawrence. That was the case in PACE. That was the case in Irwin. And in each of those cases, the court found equitable tolling did not apply. Thank you. 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 E is in question. And it's in the appendix of pages 242 to 242. If there was a release covering those years, why is anything else, matter why isn't the release, the release of the claims for those three years? Well, you're certainly on the merits week, we agree with you, that the release would foreclose the right of the tribe to collect on these particular years. But we're at the preliminary stage, which is to say whether we even get to the merits of the claim. And certainly we think it does have relevance to the equitable tolling inquiry and whether the timeliness inquiry, which is, first of all, it goes to the diligence. This isn't just a litigant who took no action. It took one affirmative step and the one affirmative step it took was to release the claims that issue. Did the Indian Health Service have the authority to require the tribe to release those claims during the contract closeout process? No, there's no specific statutory authority. The tribe argues and its reply rate that the health service was somehow borrowed from seeking a release. But I don't believe that there was any, certainly in the government's view, there was no statutory prohibition on the type of release that was issued here, which basically allows for exception, provides a place in the release for exceptions of claim and the tribe agreed to none. So- What would have happened if they refused to sign the release? 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 an administrative 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 equitable tolling. So it turned out there were consequences after all? There weren't consequences in terms of its ability to contract with IHS or the terms on which it could contract with IHS going forward. I think that there are consequences and equity when a party releases a claim affirmatively, whether or not that was something that was required of it. It voluntarily signed that release

. 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 E is in question. And it's in the appendix of pages 242 to 242. If there was a release covering those years, why is anything else, matter why isn't the release, the release of the claims for those three years? Well, you're certainly on the merits week, we agree with you, that the release would foreclose the right of the tribe to collect on these particular years. But we're at the preliminary stage, which is to say whether we even get to the merits of the claim. And certainly we think it does have relevance to the equitable tolling inquiry and whether the timeliness inquiry, which is, first of all, it goes to the diligence. This isn't just a litigant who took no action. It took one affirmative step and the one affirmative step it took was to release the claims that issue. Did the Indian Health Service have the authority to require the tribe to release those claims during the contract closeout process? No, there's no specific statutory authority. The tribe argues and its reply rate that the health service was somehow borrowed from seeking a release. But I don't believe that there was any, certainly in the government's view, there was no statutory prohibition on the type of release that was issued here, which basically allows for exception, provides a place in the release for exceptions of claim and the tribe agreed to none. So- What would have happened if they refused to sign the release? 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 an administrative 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 equitable tolling. So it turned out there were consequences after all? There weren't consequences in terms of its ability to contract with IHS or the terms on which it could contract with IHS going forward. I think that there are consequences and equity when a party releases a claim affirmatively, whether or not that was something that was required of it. It voluntarily signed that release. But ultimately, even without the release, the tribe took no action to pursue its claim during the statutory period. Council for the tribe suggests that we should equate the rules for class action tolling and equitable tolling. But equity operates under different rules. The diligence requirement is paramount among them. Equitable tolling requires the party to demonstrate diligence throughout the entire period it seeks to hold. And it requires that the impediment to suit actually prevent the timely filing. Neither of those standards are met. Are there any circumstances in which reliance on legal advice could constitute the extraordinary circumstance required for equitable tolling? You're right. I think it's a, this Court has never recognized as such. In Holland, it was the very unusual circumstance where it was mistakes by counsel, but mistakes that really amounted to an abandonment by counsel. It was certainly not advice of counsel. So that it settled in all 13 circuits. They've all ruled one way. You don't think it's reasonable to give advice based on that, really? That that might be an exceptional solution. 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, especially counsel's advice was poorly rendered. But in the case, if you're asking if there was a situation where binding precedent afforded more time to elit again, but yet later it was determined that last time was available, that maybe a circumstance could qualify for tolling, but only where other factors are met

. But ultimately, even without the release, the tribe took no action to pursue its claim during the statutory period. Council for the tribe suggests that we should equate the rules for class action tolling and equitable tolling. But equity operates under different rules. The diligence requirement is paramount among them. Equitable tolling requires the party to demonstrate diligence throughout the entire period it seeks to hold. And it requires that the impediment to suit actually prevent the timely filing. Neither of those standards are met. Are there any circumstances in which reliance on legal advice could constitute the extraordinary circumstance required for equitable tolling? You're right. I think it's a, this Court has never recognized as such. In Holland, it was the very unusual circumstance where it was mistakes by counsel, but mistakes that really amounted to an abandonment by counsel. It was certainly not advice of counsel. So that it settled in all 13 circuits. They've all ruled one way. You don't think it's reasonable to give advice based on that, really? That that might be an exceptional solution. 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, especially counsel's advice was poorly rendered. But in the case, if you're asking if there was a situation where binding precedent afforded more time to elit again, but yet later it was determined that last time was available, that maybe a circumstance could qualify for tolling, but only where other factors are met. And for example, you know how about it's not 13, it's 12, but you're in a circuit that wasn't ruled. You mean that it's, it wouldn't be an extraordinary circumstance in that situation? Well, Your Honor, that was the case in Pace, for example, where the litigant in that case claimed that he was relying on then binding and existing third circuit precedent and believing that his time for filing a federal habeas action was told. That's one circuit. I'm talking about the vast majority throughout out of 13. And even in those cases like in Duncan, this, this Court over turned 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 the litigant failed to otherwise exercise diligence and the pursuit of the original claim. And here that would be that fear, fear, yes, exactly. As this Court has, and the questions have already suggested, the tribes reliance on cross-section tolling, in this case was not reasonable. But even if it had some belief that the deadline for filing its administrative claim could be extended, it was incumbent upon it under the diligence standard for Holland, the diligence front of Holland, to file within the clear deadline. After 2001, the tribe knew that it had to proceed individually. And the reason it waited in the words of the WCAW declaration was that it wanted certainty over its, over the substantive claim. And what it amounts to, what this case essentially amounts to is a tribe's determination that it was not worth the effort to pursue a claim until after this Court's decision in Cherokee Nation. What's the government harmed in any way by the lack of presentment? Well, you're under some respects, it 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 in petitioners' brief, they suggest that this was 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 cost would be required is a detailed and complex determination

. And for example, you know how about it's not 13, it's 12, but you're in a circuit that wasn't ruled. You mean that it's, it wouldn't be an extraordinary circumstance in that situation? Well, Your Honor, that was the case in Pace, for example, where the litigant in that case claimed that he was relying on then binding and existing third circuit precedent and believing that his time for filing a federal habeas action was told. That's one circuit. I'm talking about the vast majority throughout out of 13. And even in those cases like in Duncan, this, this Court over turned 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 the litigant failed to otherwise exercise diligence and the pursuit of the original claim. And here that would be that fear, fear, yes, exactly. As this Court has, and the questions have already suggested, the tribes reliance on cross-section tolling, in this case was not reasonable. But even if it had some belief that the deadline for filing its administrative claim could be extended, it was incumbent upon it under the diligence standard for Holland, the diligence front of Holland, to file within the clear deadline. After 2001, the tribe knew that it had to proceed individually. And the reason it waited in the words of the WCAW declaration was that it wanted certainty over its, over the substantive claim. And what it amounts to, what this case essentially amounts to is a tribe's determination that it was not worth the effort to pursue a claim until after this Court's decision in Cherokee Nation. What's the government harmed in any way by the lack of presentment? Well, you're under some respects, it 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 in petitioners' brief, they suggest that this was 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 cost would be required is a detailed and complex determination. And in fact, the experience in Rema highlights this 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 may suffer prejudice as a result of now nearly 20 years later having to determine actual contract support costs if this were to go back on the merits. The D.C. Circuit said this is presentment. This is just paperwork. It's easy to do. But the tribe couldn't, if they had, present it to the contracting office. So they just couldn't believe it at that. They would have to take an administrative appeal within 90 days or they'd have to appeal to the Federal Circuit within a year. So more was it state for this drive than simply filing a piece of paper? You're on a, there's no doubt that perhaps the D.C. Circuit's envelope in a stamp may have been a bit of hyperbole. But that said, what the tribes argument that it was the subsequent deadlines that would have led it to delay is really an astounding proposition, which is that their basis for tolling is the existence of statutes of limitation. And that really can't be the case. That the fact that once they filed their claim, it may then follow that additional limitations periods may kick in, that that could warrant delay in and of itself

. And in fact, the experience in Rema highlights this 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 may suffer prejudice as a result of now nearly 20 years later having to determine actual contract support costs if this were to go back on the merits. The D.C. Circuit said this is presentment. This is just paperwork. It's easy to do. But the tribe couldn't, if they had, present it to the contracting office. So they just couldn't believe it at that. They would have to take an administrative appeal within 90 days or they'd have to appeal to the Federal Circuit within a year. So more was it state for this drive than simply filing a piece of paper? You're on a, there's no doubt that perhaps the D.C. Circuit's envelope in a stamp may have been a bit of hyperbole. But that said, what the tribes argument that it was the subsequent deadlines that would have led it to delay is really an astounding proposition, which is that their basis for tolling is the existence of statutes of limitation. And that really can't be the case. That the fact that once they filed their claim, it may then follow that additional limitations periods may kick in, that that could warrant delay in and of itself. But even putting that aside, there were other options that the tribe could have pursued. For example, having presented its claim, and if it did so prior to, it said it hoped to be a part of the Cherokee Nation Class Action. If it did so prior to the Cherokee Nation Class Action, and the Cherokee Nation Class Action was, in fact, certified, then it may have an argument that it's part of that class. To the extent to which the Cherokee Nation Class was denied, then the only, then the presentment requirement was the necessary step to moving forward to presenting its claim individually at the judicial level. So I don't believe that the inevitability of further litigation in any way is a basis for tolling in this case. There are no further questions. Thank you, Council. You have nine minutes remaining, Mr. Schmohlmer. Thank you, Your Honor. I'll start with a few comments on the last point that Council made. The stamp in an envelope, quote, is more than hyperbole. It's just flat-wrong. There's costing, curred by the tribe to calculate the amount of claims. There's 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 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

. But even putting that aside, there were other options that the tribe could have pursued. For example, having presented its claim, and if it did so prior to, it said it hoped to be a part of the Cherokee Nation Class Action. If it did so prior to the Cherokee Nation Class Action, and the Cherokee Nation Class Action was, in fact, certified, then it may have an argument that it's part of that class. To the extent to which the Cherokee Nation Class was denied, then the only, then the presentment requirement was the necessary step to moving forward to presenting its claim individually at the judicial level. So I don't believe that the inevitability of further litigation in any way is a basis for tolling in this case. There are no further questions. Thank you, Council. You have nine minutes remaining, Mr. Schmohlmer. Thank you, Your Honor. I'll start with a few comments on the last point that Council made. The stamp in an envelope, quote, is more than hyperbole. It's just flat-wrong. There's costing, curred by the tribe to calculate the amount of claims. There's 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 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 of limitations, either 90 days to appeal in the 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 of limitations of the contract disputes act had not been found to be jurisdictional. It was later on found to be jurisdictional as a result of the presentment requirement. But the second statute of limitations that would have been triggered would in fact have been jurisdictional, and the tribe would have had no option but to litigate. And if we place these facts on top of what happened in Cherokee Nation, it perfectly illustrates the conundrum. 707 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 hundred and 150 days, let's give the government, you know, ample time to respond, then it would have triggered a statute of limitations that was jurisdictional, that the tribe would have had to have acted on in order to make sure that its claim was, in fact, going to still be alive. And that would have happened before the end of the 707 days. So it's more than a stamp in an envelope. It really is a jurisdictional conundrum that the tribe was aware of and concerned about that partially factored into the tribe's decision not to file claim. There are 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 articulate an equitable tolling principle that will open a floodgate to making a statute of limitations basically a nullity? Well, the primary basis you're on are for the tribe's position that equitable tolling should apply, is its reasonable reliance on class action tolling. The other factors, such as the cost of litigation, such as the United States' fiduciary responsibility and trust responsibility. If it was reasonable, why didn't you litigate that? There was no- Why didn't you take the order of the go court below and appeal that order? Well, there were two cases, both the Federal Circuit and the DC Circuit ruled just about the same time on that issue

. That triggers another statute of limitations, either 90 days to appeal in the 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 of limitations of the contract disputes act had not been found to be jurisdictional. It was later on found to be jurisdictional as a result of the presentment requirement. But the second statute of limitations that would have been triggered would in fact have been jurisdictional, and the tribe would have had no option but to litigate. And if we place these facts on top of what happened in Cherokee Nation, it perfectly illustrates the conundrum. 707 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 hundred and 150 days, let's give the government, you know, ample time to respond, then it would have triggered a statute of limitations that was jurisdictional, that the tribe would have had to have acted on in order to make sure that its claim was, in fact, going to still be alive. And that would have happened before the end of the 707 days. So it's more than a stamp in an envelope. It really is a jurisdictional conundrum that the tribe was aware of and concerned about that partially factored into the tribe's decision not to file claim. There are 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 articulate an equitable tolling principle that will open a floodgate to making a statute of limitations basically a nullity? Well, the primary basis you're on are for the tribe's position that equitable tolling should apply, is its reasonable reliance on class action tolling. The other factors, such as the cost of litigation, such as the United States' fiduciary responsibility and trust responsibility. If it was reasonable, why didn't you litigate that? There was no- Why didn't you take the order of the go court below and appeal that order? Well, there were two cases, both the Federal Circuit and the DC 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 present requirement that it had seeking served on 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 monomony tribe chose not to throw bad money after a bad result, which was guaranteed by preparing a petition syrup, which this court had already denied in the Arctic slope native. And there was no split, but you had a split. There was no split. No, Your Honor. When your decision came 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 DC Circuit held that class action tolling was not available, and they both remanded back to the trial courts to determine whether or not equitable tolling apply. And that first decision was appealed by Arctic slope native associate or petitioned this court to take that case, and it was not taken. And monomony did not take those steps by filing a petition. I also want to address the prejudice issue. If there's anything in the government's briefs that strikes me as hyperbole, it's that they were prejudice. 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 produced shortfall reports contemporaneous with the years in which these claims accrued, in which they told Congress for each tribe how much they shortfunded them. So the government would tell you that they're prejudiced because they would have to go back and look at the contract and look at the policy in place at the time to calculate the amount due. It is just not credible in my view. I rest our case here. Thank you, Council. The case is submitted