IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al. ) ) Plaintiffs, ) ) v. ) ) DIRK KEMPTHORNE, Secretary of the ) Interior, et al. ) ) Defendants. ) ____________________________________) Case No. 1:96CV01285 (Judge Robertson) DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MEMORANDUM IN SUPPORT OF EQUITABLE RESTITUTION AND DISGORGEMENT JEFFREY S. BUCHOLTZ Acting Assistant Attorney General MICHAEL F. HERTZ Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director ROBERT E. KIRSCHMAN, JR. Deputy Director JOHN T. STEMPLEWICZ Senior Trial Counsel JOHN WARSHAWSKY Senior Trial Counsel CYNTHIA L. ALEXANDER GLENN D. GILLETT JOHN R. KRESSE MICHAEL J. QUINN PHILLIP SELIGMAN JOHN J. SIEMIETKOWSKI Trial Attorneys April 9, 2008 Attorneys for Defendants TABLE OF CONTENTS Table of Contents ............................................................. i Table of Authorities ........................................................... vi Defendants’ Response to Plaintiffs’ Memorandum in Support of Equitable Restitution and Disgorgement .................................................................1 Summary ....................................................................1 Argument ....................................................................3 I. The Court Lacks Authority To Award Money To Plaintiffs .......................5 A. The United States Has Not Waived Its Sovereign Immunity ................5 B. The Appropriations Clause Prohibits Monetary Relief ....................11 C. Plaintiffs Have Not Stated A Claim Cognizable in Equity Jurisdiction .......14 D. Equitable Restitution Is Not Available To Plaintiffs......................19 E. The District Court Lacks Jurisdiction Because Remedies for Breach of Trust Are Impliedly Forbidden Under The APA ................20 F. Claims For The Payment Of Money Were Stricken From Plaintiffs’ Complaint And The Only Relief Available To Them Is An Accounting Pursuant To The 1994 Act ..........................................25 G. Plaintiffs’ Renewed Efforts To Expand Their Remedies To Include Money Must Fail ...........................................28 1. Federal Rule Of Civil Procedure 54(c) Does Not Provide A Basis For Plaintiffs’ Equitable Disgorgement Claim ..............28 2. Plaintiffs’ Selected Citations From Certain Cobell Decisions Do Not Support An Equitable Disgorgement Claim ................33 II. The Court’s Impossibility Holding Does Not Justify Equitable Disgorgement Based Upon Aggregate Throughput Figures ......................36 A. Interior’s Ability To Perform An Aggregate Throughput Analysis Of All Funds Collected Is Not Relevant To What Remedy Is Available To Plaintiffs .............................................37 B. The Court’s Impossibility Holding Does Not Lead To Consideration Of, Or Justify, A Monetary Payment To Plaintiffs .......................41 C. The Doctrine Of Laches And The Statute Of Limitations Bar Claims For Equitable Restitution And Disgorgement .....................43 III. Plaintiffs Cannot Pursue Monetary Relief On Behalf Of The Certified Class ........47 A. The Class Certification Order Entered In This Case Limits Plaintiffs To Declaratory Or Injunctive Relief ..........................49 1. Plaintiffs’ Request For Monetary Relief Obligates The Court To Reconsider Class Treatment ................................49 2. The “Mandatory” Nature Of The Present Class Limits Available Remedies .........................................51 3. Rule 23(b)(1)(A) Certification Does Not Contemplate Monetary Relief ............................................53 4. Plaintiffs’ Disgorgement Theory Is Incompatible With Rule 23(b)(2) ..............................................54 a. Claiming The Remedy Is “Equitable” Does Not Affect The Analysis ...................................55 b. Regardless Of The Test Applied, A Monetary Remedy Would Dominate .....................................56 c. Plaintiffs’ New Remedy Invokes Individual, Not Common Questions ...................................59 d. A Monetary Remedy Would Also Predominate For All Former IIM Account Holders ........................61 e. The Disgorgement Claim Conflicts With Traditional Rule 23(b)(2) Cases .........................62 B. Class Notice and Opt-Out Rights Are Insufficient to Cure the Problem .......63 1. Mere Notice And Opt-Out Opportunity Are Insufficient ............63 2. Plaintiffs Do Not Seek And Cannot Obtain Rule 23(b)(3) Certification ...................................64 IV. IIM Funds Are Not Missing...............................................69 A. Plaintiffs Bear A Substantial Burden Of Proof With Regard To The Quantification Of Any Amount Allegedly Owed For Restitution Or Disgorgement ........................................69 1. Plaintiffs’ Attempt To Shift The Burden Of Proof To The Government Fails To Satisfy Controlling Law, Which Imposes Upon The Plaintiffs The Initial Burden Of Proving A “Reasonable Approximation” Of The Amount Allegedly Due For Restitution Or Disgorgement ...........70 2. Plaintiffs’ Burden of Proof Arguments Rely Upon Easily Distinguishable Case Law ..............................72 3. Neither Equity Nor Law Warrants Imposing Strict Liability .........77 4. Plaintiffs’ Argument Fails To Present A Reasonable Approximation Of The Amount To Be Disgorged Because It Disregards The Individual Nature of the Harm Allegedly Resulting From The Government’s Failure To Provide Individual Class Members With The Historical Statements of Account ................................................78 5. Plaintiffs Also Fail To Establish The Requisite Causal Relationship Between Their Claimed Amount And The Alleged Wrong .............................................80 6. Plaintiffs’ Failure To Establish A Reasonable Approximation Of An Amount To Be Disgorged Or A Means To Determine Amounts To Be Disgorged To Individuals Will Prejudice Defendants’ Ability To Assert Res Judicata And Any Future Court’s Ability To Determine Which Issues Are Precluded By This Litigation ..........................................82 B. Plaintiffs Incorrectly Assume – With No Proof – That A Wrong Has Been Done ..................................................83 1. Because Defendants Did Not Repudiate Their Accounting Duty, Plaintiffs Are Not Entitled To Monetary Relief On That Basis ................................................84 2. Even Assuming This Court’s Impossibility Holding Constitutes A Finding Of Repudiation Of The Accounting Duty, The Finding Implicates Congress, Not Defendants ....................87 3. Plaintiffs Fail To Assert That Interior’s Actions Are A Wrong Committed Against Any Of The Named Plaintiffs .................88 C. Plaintiffs’ Assertion That They Are Entitled To An Award Of Billions of Dollars Is Refuted By The Historical Accounting Work Already Performed By Interior .................................89 1. The “Paragraph 19” Project ...................................90 2. The Litigation Support Accounting Project.......................92 3. Judgment and Per Capita Account Reconciliations .................95 4. Other Projects and Tests .....................................95 D. Plaintiffs’ Methodologies For Estimating Alleged Benefit To The Government Are Fatally Flawed .................................97 1. Plaintiffs’ Claim That Defendants Failed To Disburse Over $3 Billion Of Trust Funds Grossly Misconstrues The Data In AR-171 And DX-365 ..............................97 a. AR-171 Does Not Support The Claim That The Government Has Failed To Distribute $3.6 Billion ...........97 i. Plaintiffs Wrongly Assume That No Disbursements Occurred Prior to 1972 ..............98 ii. Plaintiffs Wrongly Include “Tribal IIM” Receipts ...........................98 iii. Plaintiffs Wrongly Include More Than $920.1 Million of Interest Paid As Being Akin to Royalty and Lease Revenues ...............99 b. Defendants’ Table (DX-365) Does Not Establish That As Much As $3 Billion In Collected IIM Revenues Should Have Been But Were Not Posted To IIM Accounts ...............................99 2. Plaintiffs Incorrectly Assert That All Osage “Headright” Revenues Constitute IIM Subject to Disgorgement ....................................104 3. Plaintiffs’ Exclusion of Automated Clearinghouse And Electronic Funds Transfer Transactions Significantly Understates Disbursements Made to IIM Account Holders .........107 4. The Evidence At The October 2007 Trial Demonstrated That Virtually All Revenue Disbursed by Check Reached the Beneficiaries .............................................108 5. Plaintiffs’ Allegation Of A Benefit To The Government Is Based Upon An Erroneous Depiction Of The Cash Management Function Of The Treasury General Account And The Budgetary Accounting Function of The 14X6039 IIM Account ..............110 6. Plaintiffs’ Computation Of An Alleged Benefit To The Government Is Simply An Inflated Estimate Of Prohibited Prejudgment Interest ....114 V. The Court Should Deny Plaintiffs’ Request To Return Trust Lands And Their Proceeds ....................................................117 Conclusion .................................................................123 TABLE OF AUTHORITIES CASES Aetna Casualty & Surety Co. v. United States, 71 F.3d 475 (2d Cir. 1995) ............................................... 8 Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.Cir. 1980) ............................................ 36 Alabama v. Bowsher, 734 F. Supp. 525 (D.D.C. 1990), aff'd sub nom. on other grounds Arizona v. Bowsher, 935 F.2d 332 (D.C. Cir. 1991) ................................... 8 Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (Fed. Cir. 1993) ............................................... 8 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .................................................... 29 Albrecht v. Comm. on Employee Benefits, 357 F.3d 62 (D.C. Cir. 2004) ............................................. 21 Allen v. McCurry, 449 U.S. 90 (1980), .................................................... 82 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ............................................. 57 Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398 (5th Cir. 2007) .......................................... 71, 81 Amax Land Co. v. Quarterman, 181 F.3d 1356 (D.C. Cir. 1999).......................................... 114 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)........................................... 48, 50, 51, 54 America's Community Bankers v. FDIC, 200 F.3d 822 (D.C. Cir. 2000).......................................... 8, 14 Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006).................................................... 80 Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712 (4th Cir. 1983) .......................................... 29, 30 Baker v. John Morrell & Co., 266 F. Supp. 2d 909 (N.D. Iowa 2003) ..................................... 31 In re Barr Lab., Inc., 930 F.2d 72 (D.C. Cir. 1991)............................................. 43 Beckett v. Air Line Pilots Ass'n, 995 F.2d 280 (D.C. Cir. 1993)......................................... 17, 18 Bolin v. Sears, Roebuck & Co., 231 F.3d 970 (5th Cir. 2000) ............................................. 61 Bowen v. Massachusetts, 487 U.S. 879 (1988)................................................. passim Bravo v. Sauter, 727 So. 2d 1103 (Fla. Dist. Ct. App. 1999) ............................... 75, 76 Breeden v. Weinberger, 493 F.2d 1002 (4th Cir. 1974) ............................................ 75 Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002)............................................ 43 Bryan v. Security Trust Co., 176 S.W.2d 104 (Ky. Ct. App. 1943) ................................... 75, 76 CFTC v. American Metals Exchange Corp., 991 F.2d 71 (3d Cir. 1993) .............................................. 80 CFTC v. Sidoti, 178 F.3d 1132 (11th Cir. 1999) ........................................... 80 CarrAmerica Realty Corp. v. Kaidanow, 321 F.3d 165 (D.C. Cir. 2003)......................................... 44, 45 Disability Rights Council v. WMATA, 239 F.R.D. 9 (D.D.C. 2006)........................................ 50, 52, 64 Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)............................................. 5 Chard v. O'Connell, 120 P.2d 125 (Cal. App. 1 Dist. 1941) ..................................... 86 Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004) ........................................... 21 Chula Vista City Sch. Dist. v. Bennett, 824 F.2d 1573 (Fed. Cir. 1987) ........................................... 26 Cioffe v. Morris, 676 F.2d 539 (11th Cir. 1982) ............................................ 29 City of Houston v. HUD, 24 F.3d 1421 (D.C. Cir. 1994)................................... 11, 12, 13, 14 Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998)................................. 26, 27, 46, 75 Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999)........................................ passim Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006)...................................... 28, 35, 43 Cobell v. Kempthorne, 532 F.Supp.2d 37 (D.D.C. 2008)....................................... passim Cobell v. Norton, 226 F.R.D. 67 (D.D.C. 2005).......................................... passim Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001)........................................ passim Cobell v. Norton, 260 F. Supp. 2d 98 (D.D.C. 2003)...................................... 46, 85 Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003), vacated in part on other grounds and remanded, 392 F.3d 461 (D.C. Cir. 2004) ................................... 87 Cobell v. Norton, 392 F.3d 251 (D.C. Cir. 2004)................................ 75, 118, 119, 121 Cobell v. Norton, 428 F. 3d 1070 (D.C. Cir. 2005) ....................................... passim Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000) ........................................... 53 Coleman v. PBGC, 196 F.R.D. 193 (D.D.C. 2007)............................................ 56 In re Complaint of Nautilus Motor Tank Co., 85 F.3d 105 (3rd Cir. 1996) .............................................. 42 Connell v. U.S. Steel Corp., 516 F.2d 401 (5th Cir. 1975) ............................................. 86 Consolidated Edison Co. v. United States, 247 F.3d 1378 (Fed. Cir. 2001) ........................................ 11, 25 Crawford v. La Boucherie Bernard, Ltd., 815 F.2d 117 (D.C. Cir. 1987)............................................ 17 Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C Cir. 1995) ........................................... 8, 17 Dalehite v. United States, 346 U.S. 15 (1953)..................................................... 78 Democratic Central Comm. v. WMATA, 84 F.3d 451 (D.C. Cir. 1996)............................................. 69 In re Dennis Greenman Securities Litigation, 829 F.2d 1539 (11th Cir. 1987) ........................................... 48 Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999)................................................... 8, 9 Dept. of the Army v. FLRA, 56 F.3d 273 (D.C. Cir. 1995)............................................. 10 Diamond Chemical Co. v. Akzo Nobel Chemicals, B.V., 517 F. Supp. 2d 212 (D.D.C. 2007)......................................... 6 Disability Rights Council v. WMATA, 239 F.R.D. 9 (D.D.C. 2006)........................................ 50, 52, 64 District of Columbia v. Orleans, 406 F.2d 957 (D.C. Cir. 1968)............................................ 36 Dunkin' Donuts of America, Inc. v. Minerva, Inc., 956 F.2d 1566 (11th Cir. 1992) ........................................... 32 Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir.1973), vacated on other grounds, 417 U.S. 156 (1974)............................................................... 68 In re Electronic Data Sys. Corp. "ERISA" Litig., 224 F.R.D. 613 (E.D. Tex. 2004).......................................... 61 England v. Winslow, 237 P. 542 (Cal. 1925) .................................................. 86 In re Enron Corp. Sec., Derivative & ERISA Litig., 284 F. Supp. 2d 511 (S. D. Tex. 2003) ..................................... 20 Eubanks v. Billington, 110 F.3d 87 (D.D.C. 1997) ........................................... passim Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920 (3d Cir. 1984) ....................................... 29, 30, 31 Federal Crop Insurance Corp. v. Merrill, 332 U.S.380 (1947) .................................................... 13 Fisher v. J.P. Morgan Chase & Co., 230 F.R.D. 370 (S.D.N.Y. 2005) .......................................... 60 Ford v. Chartone, Inc., 908 A.2d 72 (D.C. 2006) ................................................ 62 Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) ........................................... 41 Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29 (1994), aff'd, 64 F.3d 677 (Fed. Cir. 1995) (Table) ............. 77, 78 Friends of the Earth v. Armstrong, 485 F.2d 1 (10th Cir. 1973) .............................................. 42 Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004)........................................ 57, 65, 66 Garcia v. Veneman, 211 F.R.D. 15 (D.D.C. 2002)....................................... 51, 56, 57 Gilbane Bldg. Co. v. Federal Reserve Bank of Richmond, 80 F.3d 895 (4th Cir. 1996) ........................................... 29, 30 Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973) .............................................. 66 Goodman v. Goodman, 907 P.2d 290 (Wash. 1995) .............................................. 86 Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)............................................... 6,19, 20 Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir. 1976) ............................................ 53 Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999).................................................... 17 Hansberry v. Lee, 311 U.S. 32 (1940)..................................................... 66 Hoopa Valley Tribe v. United States, 596 F.2d 435 (Ct. Cl. 1979) .............................................. 24 Hubbard v. EPA, 982 F.2d 531 (D.C. Cir. 1992)....................................... 9,10, 12 In re Liability of Bureau of Indian Affairs for Interest on Individual Monies, B-243029, 1991 WL 197151 (Comp. Gen. March 25, 1991) ............................ 116 Int'l Harvester v. East Coast Truck, 547 F.2d 888 (5th Cir. 1977) ............................................. 30 In re Jackson Nat. Life Ins. Co. Premium Litig., 193 F.R.D. 505 (W.D. Mich. 2000)........................................ 61 Jimenez v. Domino's Pizza, Inc., 238 F.R.D. 241 (C.D. Cal. 2006).......................................... 61 Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994) ............................................ 22 Keepseagle v. Veneman, Civ. A. No. 9903119EGS1712, 2001 WL 34676944 (D.D.C. Dec. 12, 2001) ............................................................ 34, 63 Kennedy v. Miller, 582 N.E.2d 200 (Ill. App. Ct. 1991) ....................................... 74 Kentucky v. Graham, 473 U.S. 159 (1985)..................................................... 5 Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966).................... 18 Laird v. Nelms, 406 U.S. 797 (1972).................................................... 78 LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007) ........................................... 22 Library of Congress v. Shaw, 478 U.S. 310 (1986)............................................... 114, 115 Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006)............................................ 50 Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004)............................................ 57 Luria Bros. & Co., Inc. v. Alliance Assurance Co., Ltd., 780 F.2d 1082 (2d Cir. 1986) ............................................ 31 Maryland Dep't of Human Resources v. HHS, 763 F.2d 1441 (D.C. Cir. 1985)............................................ 6 Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003)........................................... 80 Matarese v. Moore-McCormack Lines. Inc., 158 F.2d 631 (2d Cir. 1946) ............................................. 32 Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996)................................................. 64, 66 McCarthy v. Kleindienst, 741 F.2d 1406 (D.C. Cir. 1984)........................................... 50 McLaughlin v. American Tobacco Co., 2008 WL 878627 (2d Cir. 2008) ................................. 67, 68, 69, 80 Megapulse Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982)............................................ 24 Mehling v. New York Life Ins. Co., 246 F.R.D. 467 (E.D. Pa. 2007)........................................... 67 United States v. Mitchell, 445 U.S. 535 (1980)), .............................................. 88, 118 Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288 (1960)................................................. 18, 19 Monod v. Futura, Inc., 415 F.2d 1170 (10th Cir. 1969) ........................................... 30 Moore v. Capitalcare, Inc., 461 F.3d 1 (D.C. Cir. 2006).............................................. 20 Motorola, Inc. v. Perry, 917 F.Supp. 43 (D.D.C. 1996)] ........................................... 26 National Association of Regional Councils v. Costle, 564 F.2d 583 (D.C. Cir. 1977)......................................... 11, 12 National Resource Defense Council v. EPA, 513 F.3d 257 (D.C. Cir. 2008)............................................ 82 New Hampshire v. Maine, 532 U.S. 742 (2001).................................................... 35 OPM v. Richmond, 496 U.S. 414 (1990)................................................. 12, 14 Old Republic Ins. Co. v. Employers Reins. Corp., 144 F.3d 1077 (7th Cir. 1998) ............................................ 29 Ortiz v. Fibreboard, 527 U.S. 815 (1999).............................................. 51, 52, 53 Parker v. Time Warner, 239 F.R.D. 318 (E.D.N.Y. 2007).......................................... 58 Parsons v. United States, 670 F.2d 164 (Ct. Cl. 1982) .............................................. 75 In re Paxil Litig., 218 F.R.D. 242 (C. D. Cal. 2003) ......................................... 62 Pinkley, Inc. v. City of Frederick, 191 F.3d 394 (4th Cir. 1999) ............................................. 30 Porter v. Warner Holding Co., 328 U.S. 395 (1946).................................................... 18 Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004) ............................................... 10, 11 Rainbolt v. Johnson, 669 F.2d 767 (D.C. Cir. 1981)...................................... 17, 73, 74 Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir. 1962) ............................................. 32 In re Revinius Inc., 977 F.2d 1171 (7th Cir. 1992) ............................................ 29 Reynolds v. Sheet Metal Workers, 702 F.2d 221 (D.C. Cir. 1981)............................................ 64 Reynolds v. Slaughter, 541 F.2d 254 (10th Cir. 1976) ............................................ 32 Richards v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006)......................................... passim Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971) ....................................... 31, 32, 58 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) .......................................... 57, 58 Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168 (1st Cir. 1995) ............................................. 29 SBC Communications, Inc. v. FCC, 407 F.3d 1223 (D.C. Cir. 2005)........................................... 82 SEC v. First City Financial Corp., 890 F.2d 1215 (D.C. Cir. 1989)........................................ passim SEC v. Hughes Capital Corp., 917 F. Supp. 1080 (D.N.J. 1996) .......................................... 70 Sarafin v. Sears, Roebuck & Co., 446 F. Supp. 611 (N.D. Ill. 1978) ......................................... 61 In re School Asbestos Litig., 789 F.2d 996 (3d Cir. 1986) ............................................. 57 Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229 (C.D. Cal. 2006).......................................... 61 Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006)................................................. 19, 20 Sharp v. Weinberger, 798 F.2d 1521 (D.C. Cir. 1986)........................................... 21 In re Singer, 818 N.Y.S.2d 417 (N.Y. Surr. Ct.), aff'd sub nom. Singer v. Tydings, 817 N.Y.S.2d 241 (N.Y.A.D. 2006) ........................................... 86 Soc. Sec. Admin., v. FLRA, 201 F.3d 465 (D.C. Cir. 2000)........................................... 115 Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C. Cir. 2000)........................................... 43 Taylor v. District of Columbia Water & Sewer Auth., 205 F.R.D. 43 (D.D.C. 2002).................................... 53, 57, 62, 63 Thomas v. Albright, 139 F.3d 227 (D.C. Cir. 1998)......................................... 50, 64 Thompson v. Kennickell, 797 F.2d 1015 (D.C. Cir. 1986).......................................... 114 Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) ............................................. 55 Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994).................................................... 52 USX Corp. v. Barnhart, 395 F.3d 161 (3d Cir. 2004) ............................................. 31 United States v. American Trucking Ass'n, 310 U.S. 534 (1939).................................................... 36 United States v. Marin, 651 F.2d 24 (1st Cir. 1981) .............................................. 29 United States v. Mescalero Apache Tribe, 518 F.2d 1309 (1975).................................................. 115 United States v. Minor, 228 F.3d 352 (4th Cir. 2000) .............................................. 8 United States v. Mitchell, 463 U.S. 206 (1983)................................................. passim United States v. N.Y. Rayon Importing Co., 329 U.S. 654 (1947)................................................... 115 United States v. Navajo Nation, 537 U.S. 488 (2003).................................................... 23 United States v. Nordic Village, Inc., 503 U.S. 30 (1992)................................................... 5, 18 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003).................................................... 23 In re Veneman, 309 F.3d 789 (D.C. Cir. 2002)...................................... 51, 54, 63 Village of Brookfield v. Pentis, 101 F.2d 516 (7th Cir. 1939) .......................................... 17, 18 Warner v. Cox, 487 F.2d 1301 (5th Cir. 1974) ............................................ 24 West v. Oklahoma Tax Commission, 334 U.S. 717 (1948)................................................... 104 White Mountain Apache Tribe v. United States, 26 Cl. Ct. 446, 449 (1992),aff'd, 5 F.3d 1506 (Fed. Cir. 1993)................................................... 75 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) ........................................ 54, 61 CONSTITUTION AND STATUTES U.S. Constitution Art. I, § 9, cl. 7............................................... 11 5 U.S.C. § 702 .......................................................... passim 5 U.S.C. § 7105(g)(3)........................................................ 10 5 U.S.C. § 7118(a)(7) .........................................................10 25 U.S.C. § 161a .......................................................... 116 25 U.S.C. § 162a ........................................................ passim 25 U.S.C. § 4011 ..................................................... 25, 26, 79 25 U.S.C. § 4012 .......................................................... 116 28 U.S.C. § 1331 ........................................................... 15 28 U.S.C. § 1491(a) ......................................................... 22 28 U.S.C. § 2072(b) ......................................................... 68 28 U.S.C. § 2401(a)...................................................... 46, 47 Act of June 24, 1938 (25 U.S.C. § 162a)] ......................................... 7 American Indian Trust Fund Management Reform Act of 1994, Pub. L. No. 103-412, 108 Stat. 4239 (1994 Act) ................................................. 1, 7 Employee Retirement Income Security Act, 29 U.S.C. § 1001 etseq................... 17 Fed. R. Civ. P. 15(b)...................................................... 30, 31 Fed. R. Civ. P. 19(a)(1)(B)................................................... 122 Fed. R. Civ. P. 23(b)(2) ................................................... passim Fed. R. Civ. P. 23(b)(3) ................................................... passim Fed. R. Civ. P. 23(c)(1)(B).................................................... 65 Fed. R. Civ. P. 54 ........................................................ passim Fed. R. Evid. 803(6)-(8) ...................................................... 75 H.R. Rep. No. 94-1656 (1976),reprinted in 1976 U.S.C.C.A.N. 6121, 6133 ............. 22 Indian Tucker Act, 28 U.S.C. § 1505......................................... 16, 22 Little Tucker Act, 28 U.S.C. § 1364(a)(2) ........................................ 22 Osage Allotment Act of 1906, Pub. L. No. 59-321, 34 Stat. 539...................... 104 Osage Act of June 24, 1938, § 3, 52 Stat. 1034 .................................. 104 Osage Act of October 21, 1978, § 2(a), Pub. L. No. 95-496, 92 Stat. 1660 ............. 104 Tucker Act, 28 U.S.C. § 1491 ................................................. 16 Ute Indian Rights Settlement Act § 507(c), 106 Stat. 4600 (1992) ..................... 18 MISCELLANEOUS 1A C.J.S.Accounting § 44 (Feb. 2008) .......................................... 71 D. Dobbs, Handbook on the Law of Remedies (1973) ............................... 6 D. Dobbs, 1 Law of Remedies § 3.1, at 279 (2d ed. 1993) ......................... 7, 19 C. Wright & A. Miller, 5A Federal Practice & Procedure (2d ed. 1990) ................ 43 C. Wright, A. Miller & H. Kane, 7AA Federal Practice & Procedure (2008) .......... 58, 62 Manual for Complex Litigation § 21.221................................... 53, 54, 55 OMB Circular A-11 (2007) ...................................................111 Restatement (Third) of Restitution and Unjust Enrichment (Tent. Draft 5) (June 2007) .....71 Restatement (Third) of Trusts (2007) .............................................81 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al. ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Robertson) DIRK KEMPTHORNE, Secretary of the ) Interior, et al. ) ) Defendants. ) ____________________________________) DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MEMORANDUM IN SUPPORT OF EQUITABLE RESTITUTION AND DISGORGEMENT Summary Plaintiffs seek over $58 billion in damages, cloaked in the guise of an equitable disgorgement claim. Memorandum In Support Of Equitable Restitution And Disgorgement [Dkt. 3515] (Pls. Mem.). That relief is not available in this Court. The Administrative Procedure Act (APA) does not waive the United States’ sovereign immunity with respect to such a claim which, no matter how artfully Plaintiffs try to disguise it, is for money damages. Plaintiffs seek a monetary award as a substitute, to compensate them for allegedly withheld funds that they contend would have been revealed if the Department of the Interior (Interior) completed the historical accounting this Court found required by the American Indian Trust Fund Management Reform Act of 1994 , Pub. L. No. 103-412, 108 Stat. 4239 (1994 Act). The 1994 Act does not, however, contemplate the payment of money and no legal basis exists to justify such an award. Plaintiffs have cited no case in which a district court has ordered “disgorgement” under the APA or otherwise granted monetary relief under a general theory of equitable powers, and we are aware of none. The only live claim brought by Plaintiffs and the only relief available to them pursuant to the 1994 Act is an accounting; the Court early on struck from the complaint Plaintiffs’ claims that would have required a “cash infusion” into the IIM system. This Court’s recent conclusion that it will be impossible to complete the historical accounting does not alter the jurisdictional landscape or justify an equitable disgorgement remedy. Given the Court’s conclusion, the appropriate remedy now is either a remand (for Interior to explore other avenues) or dismissal. Plaintiffs’ multi–billion dollar claim is also barred because this case is certified as a class action under Federal Rule of Civil Procedure 23(b)(1)(A) and (b)(2). These provisions generally permit only common declarative or injunctive relief. This rule protects individual class members who do not suffer from a common monetary injury that can be addressed by class-wide relief. Such protection is necessary here because the financial effect of the alleged failure to perform a historical accounting would vary among account holders, account types, income streams and the timing of those streams. This rule, followed consistently within this circuit, proscribes the monetary relief Plaintiffs now seek. Because the equitable disgorgement claim should be rejected on the existing record, no need exists to conduct the trial scheduled for June, 2008. Should the June trial proceed, an analysis of the aggregate amount of funds that were collected by Interior and posted to the accounts of individual Indians will not provide a factual predicate for an award of $58 billion. This throughput data comprises aggregate information that does not reflect upon the adequacy of a historical accounting for individual Indian money (IIM) accounts or provide a basis to analyze any individualized monetary remedy. Assuming this Court does review the aggregate throughput data, it will not find evidence that funds are missing from IIM accounts. Plaintiffs cannot meet their burden of proving that their $58 billion claim is a reasonable approximation of any benefit obtained by the government. To the contrary, all available evidence, including accounting work performed since the inception of this litigation, indicates that funds belonging to IIM account holders have been posted to their accounts. Plaintiffs’ efforts to paint a different picture suffer from numerous, fundamental, factual flaws. Thus, Plaintiffs ultimately are left arguing that this Court should simply shift the burden of proof and require Defendants to prove that every single transaction over the course of more than a century was accurate. This argument is likewise factually flawed and legally unsupportable. Remarkably, Plaintiffs now even ask this Court to order the undoing of all transactions related to individual Indian land -- including the return of allotted land sold almost a century ago -- and their associated proceeds. This demand is factually, legally and procedurally flawed and is well beyond the jurisdiction of this Court and the scope of this case. It, and Plaintiffs’ other related management claims, should be summarily dismissed. Argument This Court's determination that a complete historical accounting of the IIM system is impossible means that, in some percentage of cases, IIM account holders covered by the 1994 Act cannot receive confirmation of past transactional activity, i.e., the purpose to be served by the historical accounting. Nowhere does the 1994 Act or any other statute provide that, if Interior is unable to provide a complete accounting for each and every eligible account holder, which Congress did not consider possible in any event, it should not provide an accounting of any kind to any account holder but should instead pay all account holders the difference between the estimated aggregate IIM system revenues and provable disbursements for the past 120 years. But that is the very thing Plaintiffs now seek, and they do not draw the line at this unwarranted embellishment of Interior's accounting obligation. They also demand the value of the supposed benefits or improper advantages gained by the government from the alleged misuse of funds allegedly wrongfully withheld. In addition, Plaintiffs also demand that the government transfer to them the value of all individual Indian trust land transactions and uses where the government cannot prove that fair value was previously paid. Granting the relief Plaintiffs now seek would manifestly require the Court to order an "infusion of cash" into the IIM system, an order this Court previously and without challenge by Plaintiffs held that it lacks authority to issue. Plaintiffs have not proposed to the Court a remedy for Defendants' alleged breach of the accounting duty but, rather, an alternative claim, one in which they are attempting to convert their case from a claim for an "accounting of the money that already exists in the IIM trust" to a claim for a payment of money completely outside the IIM system. Plaintiffs have not and cannot demonstrate – and the Court should not assume – that the money claimed is currently in the Treasury. Despite this, Plaintiffs are trying to obtain from the Court, under the guise of restitution and disgorgement, the identical relief which is plainly unavailable from this Court through trust mismanagement claims. For these and a variety of other substantial reasons, discussed below, the Court should dismiss the case now that Plaintiffs have made clear that they seek compensation for the government's alleged “unlawful withholding” as a substitute for the accounting. No purpose would be served by holding a trial to determine the size of a monetary award that this Court cannot grant. I. The Court Lacks Authority To Award Money To Plaintiffs A. The United States Has Not Waived Its Sovereign Immunity “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”1 United States v. Mitchell, 463 U.S. 206, 212 (1983) (Mitchell II). Such consent may not be implied, but must be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). Plaintiffs contend that the necessary waiver of sovereign immunity is found in section 702 of the APA. Pls. Mem. at 45.2 Because section 702 only waives sovereign immunity for “[a]n action in a court of the United States seeking relief other than money damages,” 5 U.S.C. § 702, Plaintiffs recognize that they must characterize their current claim for money as something other than a claim for money damages. Pls. Mem. at 47. Unfortunately for Plaintiffs, as the Supreme Court has recognized, “‘[a]lmost invariably . . . suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for ‘money damages,’ as that phrase has traditionally been applied, since they 1 Although the United States is not a named Defendant, all claims against individuals acting in their official capacity are treated as if the claims were brought against the federal government itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (an official-capacity lawsuit is in effect against the sovereign). 2 Plaintiffs suggest that, alternatively, their action can be “brought as an action to enforce statutory trust duties as informed by common law” and cite Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996), for the proposition that the government’s sovereign immunity is waived for non-APA claims. Pls. Mem. at 45 n.89. Defendants acknowledge that the law in this Circuit is that “[t]he APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.” Id. Defendants respectfully reserve the right to challenge this expansive view in subsequent proceedings. In any event, all of Plaintiffs’ common law claims have already been dismissed and, therefore, Plaintiffs cannot bring the action described in their Memorandum within the confines of this case. Cobell V, 91 F. Supp. 2d at 28, 31. seek no more than compensation for loss resulting from the defendant’s breach of legal duty.’” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (quoting Bowen v. Massachusetts, 487 U.S. 879, 918-919 (1988) (Scalia, J., dissenting)). Plaintiffs principally rely upon Bowen and its progeny, see Pls. Mem. at 47-50, but misapply its principles in determining whether a claim for money is a claim for “money damages,” within the meaning of section 702. In Bowen, the Supreme Court held that Massachusetts could sue under the APA to “set aside” an order by the Department of Health and Human Services disallowing reimbursement for certain expenses under its Medicaid program. The Court held that a suit is for “money damages” – and not maintainable under the APA – if it seeks a sum of money as compensatory relief to substitute for a suffered loss. 487 U.S. at 893­ 95. However, a remedy requiring the payment of money may be specific relief – and not precluded by section 702 – when it “give[s] [the claimant] the very thing to which he was entitled.” Id. at 895 (quoting Maryland Dep't of Human Resources v. HHS, 763 F.2d 1441, 1446 (D.C. Cir. 1985) (quoting D. Dobbs, Handbook on the Law of Remedies 135 (1973)). The Medicaid statute in Bowen provided that the Secretary of HHS “shall pay” certain sums when specified services are provided. 487 U.S. at 900 (quoting 42 U.S.C. § 1396b(a)). Bowen is predicated upon the fact that the relevant Medicaid statute imposed a direct obligation to provide the monetary relief being sought. Thus, on those facts, the Supreme Court concluded that Massachusetts did not seek damages but rather sought “to enforce the statutory mandate itself, which happens to be one for the payment of money.” Bowen, 487 U.S. at 900. Accordingly, the state’s claim was held to fall within section 702 of the APA. In sharp contrast to Bowen, the 1994 Act does not expressly or impliedly impose a duty to pay money to individual Indians. To the contrary, it requires Interior to “account for the daily and annual balance of all funds held in trust by the United States for the benefit of an Indian tribe or an individual Indian which are deposited or invested pursuant to [the Act of June 24, 1938 (25 U.S.C. § 162a)].” 1994 Act, § 102(a), 25 U.S.C. § 4011(a). In short, unlike the Medicaid statute involved in Bowen, the 1994 Act does not mandate “the payment of money.” Moreover, the Court has already identified the “very thing” to which Plaintiffs are entitled: “In the case at bar, plaintiffs seek ‘the very thing to which they are entitled,’ an accounting of their money that actually exists in the IIM trust.” Cobell v. Babbitt, 91 F. Supp. 2d 1, 28 (D.D.C. 1999)(Cobell V)(citing Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255, 262­63 (1999) (Blue Fox) and Bowen, 487 U.S. at 895)). To be sure, the Court has recently determined that it is impossible to give Plaintiffs that “very thing” to which they are entitled because Congress will not pay for it. Cobell v. Kempthorne, 532 F.Supp.2d 37, 102 (D.D.C. 2008) (Cobell XX). However, for purposes of a sovereign immunity analysis under the APA within the meaning of Bowen, any remedy that Plaintiffs receive in this case – other than an accounting – is a substitute for the accounting they are entitled to receive under the 1994 Act. According to what Plaintiffs refer to as “the leading treatise on remedies,” Pls. Mem. at 48, in distinguishing between a specific remedy and damages: The damages award is often a substitutionary remedy. That is, it substitutes money for the original condition or thing to which the plaintiff was entitled . . . Damages gives the plaintiff a money substitute. Frequently a substitutionary remedy in money is the only remedy available . . . In its substitutionary character damages contrasts with specific relief . . . . 1 Dan B. Dobbs, Law of Remedies § 3.1, at 279 (2d ed. 1993) (emphasis in original). As discussed below, the money remedy Plaintiffs now request is not a reasonable substitute for an accounting, but for purposes of a sovereign immunity analysis, any money remedy that Plaintiffs propose would merely be a substitute for the accounting – “the very thing to which they are entitled” – and would thus constitute “money damages” under section 702. For this reason, Plaintiffs’ reliance on cases holding that money damages are not being sought when money is the “very thing” to which a plaintiff is entitled is misplaced because, again, an accounting – not money – is the “very thing” to which Plaintiffs are entitled. See Pls. Mem. at 48-50 (citing United States v. Minor, 228 F.3d 352 (4th Cir. 2000) (plaintiff sought return of forfeited money pursuant to statute); Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (Fed. Cir. 1993) (airlines sought return of illegally withheld money pursuant to statute); America’s Community Bankers v. FDIC, 200 F.3d 822 (D.C. Cir. 2000) (plaintiff claimed that statute required refund of payment); Aetna Casualty & Surety Co. v. United States, 71 F.3d 475 (2d Cir. 1995) (surety permitted to amend complaint to bring equitable subrogation claim against the United States); Alabama v. Bowsher, 734 F. Supp. 525 (D.D.C. 1990), aff’d sub nom. on other grounds Arizona v. Bowsher, 935 F.2d 332 (D.C. Cir. 1991) (action by states to recover unclaimed money in Treasury is barred by intergovernmental immunity component of Supremacy Clause rather than sovereign immunity)).3 Conspicuously absent from Plaintiffs’ sovereign immunity discussion is any mention of Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999). There, the Supreme Court held 3 Plaintiffs’ reliance on Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995), and SEC v. First City Financial Corp., 890 F.2d 1215 (D.C. Cir. 1989), is misplaced in their sovereign immunity analysis. Pls. Mem. at 49. Although each case involved a claim for money, Crocker addressed an action between private parties and the United States was the plaintiff in First City Financial, a civil action for disgorgement of profits for a violation of the Securities Exchange Act of 1934. that an action to enforce an equitable lien does not come within the specific-relief rule of Bowen because a lien is merely the means to satisfy a money damages claim. The Court dismissed the notion that the “equitable” nature of the claimed relief was determinative of whether section 702 of the APA provided a basis to award monetary relief: Bowen’s analysis of § 702 . . . did not turn on distinctions between “equitable” actions and other actions, nor could such a distinction have driven the Court's analysis in light of § 702's language. As Bowen recognized, the crucial question under § 702 is not whether a particular claim for relief is "equitable" (a term found nowhere in § 702), but rather what Congress meant by “other than money damages” (the precise terms of § 702). Bowen held that Congress employed this language to distinguish between specific relief and compensatory, or substitute, relief. Blue Fox, 525 U.S. at 261. The APA does not allow monetary relief which is essentially substitutionary in nature even if associated with allowable specific relief. For example, applying Bowen in a hiring discrimination case, the D.C. Circuit reversed a back pay award “because Congress has not expressed an unequivocal intent to waive sovereign immunity for such relief.” Hubbard v. EPA, 982 F.2d 531, 532 (D.C. Cir. 1992) (en banc). The court held also that section 702 of the APA was not a waiver, because a back pay award would constitute “money damages”: Specific remedies “attempt to give the plaintiff the very thing to which he was entitled.” At the time the EPA violated Hubbard's rights by denying him an offer of a job as a criminal investigator, he had never worked for the EPA and thus was not entitled to any pay . . . . The only “entitlement” that the EPA deprived Hubbard of was the job offer he would have received except for the constitutional deprivation. Instatement is the specific relief for that deprivation, it gives Hubbard “the very thing” he was owed . . . . * * * [Moreover], Bowen's holding . . . does nothing for Hubbard's cause. Hubbard's basic claim is not for enforcement of any legal mandate that the EPA pay him a sum of money; rather, it is to force the EPA to offer him the job it denied him. Id. at 533, 536 (internal citations omitted). Similarly, when commissary employees sought reimbursement of all monies lost by unit employees as a result of the Army’s failure to announce a change in a “pay lag” from ten days to twelve days,4 the D.C. Circuit rejected the availability of monetary relief. Dept. of the Army v. FLRA, 56 F.3d 273 (D.C. Cir. 1995). While the Federal Labor Relations Authority found for the employees and directed the Army to reimburse them, the Court of Appeals, relying upon Bowen and Hubbard, determined that the monetary relief ordered was money damages and was not encompassed by the waiver of sovereign immunity in the enabling statutes, 5 U.S.C. §§ 7105(g)(3) and 7118(a)(7). The Court determined: In this case, proper notice of the pay-lag policy change was the thing to which the commissary employees were entitled. The interest charges for which the employees seek compensation are sums they lost only as a consequence of the Army's failure to give them the notice they were due. Accordingly, any compensation for such interest is properly characterized as "money damages." Hence, the question before the court is whether the Statute waives the immunity of the United States to liability for money damages. Dept. of the Army v. FLRA, 56 F.3d at 276. Plaintiffs’ “basic claim” here is similarly not for the enforcement of any legal mandate that Defendants pay them a sum of money, but for the rendering of the accounting required by the 1994 Act. The performance of the accounting alone would not create an entitlement to money. Plainly, Bowen and its progeny do not support Plaintiffs’ sovereign immunity argument. The Court of Federal Claims’ consideration of this jurisdictional issue in Pueblo of 4 Because pay was not deposited until twelve days after the end of the pay period, some employees had insufficient funds in their account to cover checks drawn and they incurred interest charges when overdraft lines of credit were used to honor the checks. Laguna v. United States, 60 Fed. Cl. 133 (2004), appropriately frames the issue. Pueblo of Laguna involved an Indian tribe’s claim for an accounting and the recovery of monetary damages for mismanagement of the trust. Aware of the Cobell litigation and the filing of at least ten related tribal trust cases in this Court, the court observed: It is unclear how the district court has jurisdiction over these matters, which, though veiled as requests for injunctive relief, appear ultimately designed to obtain monetary relief. On this point, the Federal Circuit, in Consolidated Edison Co. v. United States, 247 F.3d 1378 (Fed. Cir. 2001) (en banc), instructed that “[a] party may not circumvent the [Court of Federal Claims’] exclusive jurisdiction by framing a complaint in the district court as one seeking injunctive, declaratory or mandatory relief where the thrust of the suit is to obtain money from the United States.” Id. at 1385 (quoting Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985)); cf. Cobell v. Norton, 240 F.3d 1081, 1094-95 (D.C. Cir. 2001). Pueblo of Laguna, 60 Fed. Cl. at 139 n.10 (citations omitted). B. The Appropriations Clause Prohibits Monetary Relief Because Plaintiffs are now seeking a payment of money from the Treasury, and have not identified a specific res from which this money would be paid, intertwined with any sovereign immunity analysis is the limit the Appropriations Clause of the Constitution places on the Court’s power to order monetary relief. U.S. Const. Art. I, §9, cl. 7. The D.C. Circuit discussed this issue in City of Houston v. HUD, 24 F.3d 1421, 1428 (D.C. Cir. 1994). There, relying upon Bowen, Houston sought to recover funds from a block grant awarded by the Department of Housing and Urban Development for a particular fiscal year, despite the fact that the appropriation for that fiscal year had been fully obligated and lapsed before Houston filed its suit. The Court of Appeals denied the claim as moot. The court first examined the settled law regarding its limited constitutional authority. Quoting National Association of Regional Councils v. Costle, 564 F.2d 583, 588-89 (D.C. Cir. 1977), the court found: Equity empowers the courts to prevent the termination of budget authority which exists, but if it does not exist, either because it was never provided or because it has terminated, the Constitution prohibits the courts from creating it no matter how compelling the equities. Id. at 588-89 (footnote omitted). City of Houston, 24 F.3d at 1426. The court described the “equitable exception” as “narrow,” and observed that “[i]t is beyond dispute that a federal court cannot order the obligation of funds for which there is no appropriation.” Id. (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 184 (D.C. Cir. 1992)) (emphasis added). The Court of Appeals next turned to and rejected Houston’s “chief argument” that Bowen and its progeny made relief available to the City because the injunctive relief it sought sounded in equity. The court quoted the Supreme Court in OPM v. Richmond, 496 U.S. 414, 424 (1990): The Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, provides that: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” For the particular type of claim at issue here, a claim for money from the Federal Treasury, the Clause provides an explicit rule of decision. Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute. . . . [The Appropriations Clause] means simply that no money can be paid out of the Treasury unless it has been appropriated by an Act of Congress. City of Houston, 24 F.3d at 1428. The Court of Appeals then rejected Houston’s final argument based upon Bowen, that it was entitled to recover as equitable monetary relief “no-year” funds that HUD had not reserved for use in any particular year or for particular projects. The court concluded: This argument, however, runs afoul of the APA section 702's fundamental requirement that a plaintiff seek relief “other than money damages.” Section 702 permits monetary awards only when, as in Bowen, such an award constitutes specific relief – that is, when a court orders a defendant to pay a sum owed out of a specific res. See generally Hubbard v. EPA, 982 F.2d 531 (D.C. Cir. 1992) (en banc) (holding that back pay does not constitute specific relief available under APA section 702). An award of monetary relief from any source of funds other than the 1986 [Block Grant] appropriation would constitute money damages rather than specific relief, and so would not be authorized by APA section 702. City of Houston, 24 F.3d at 1428 (emphasis in original). The results of the Appropriations Clause analysis may seem harsh in a particular case. However, as Justice Frankfurter noted for the Supreme Court in Federal Crop Insurance Corp. v. Merrill, 332 U.S.380 (1947), denying recovery is not “callous,” but “merely expresses the duty of all courts to observe the conditions defined by Congress for charging the public treasury.” 332 U.S. at 385. The City of Houston analysis is controlling here. Although Plaintiffs ask the Court to pay them approximately $58 billion to prevent the unjust enrichment of the United States, see Pls. Mem. at 44 & Attachment A, and imply that this amount is sitting somewhere in the United States Treasury waiting to be paid to them, Plaintiffs make no allegation whatsoever about where this money is located.5 Indeed, by Plaintiffs’ own reasoning, the money cannot be in the Treasury. They allege that the money “unlawfully withheld” was used to pay down the national debt, and that the benefit realized by this improper use of the money was a reduction in the need to borrow money to pay the national debt. Thus, on Plaintiffs’ theory, the government does not 5 Although stated nowhere in their Memorandum, Plaintiffs may want to argue that the Judgment Fund provides a source for the constitutionally-required appropriation necessary to pay a claimant who can make out a substantive right to money, when there is no other, more specific appropriation. However, as the D.C. Circuit made clear in City of Houston, 24 F.3d at 1428, if monetary relief comes from any other source of funds apart from an identified res, it cannot possibly be viewed as the very thing to which a plaintiff was entitled – rather, it is substitutionary in nature, and therefore, damages. Use of the Judgment Fund is substitutionary and would constitute an award of money damages, thus falling outside of the waiver of sovereign immunity provided by section 702. have more money, it simply has less debt. It is beyond dispute that this money cannot be found in the IIM system. The average balance of money held for current IIM account holders over the years has been as high as approximately $400 million. See Cobell v. Norton, 428 F. 3d 1070, 1072 (D.C. Cir. 2005) (Cobell XVII), (citing March 9, 2005 Declaration of James E. Cason, Associate Deputy Secretary, U.S. Department of the Interior, In Support of Motion for Emergency Stay Pending Appeal, at 3). Indeed, Plaintiffs specifically disclaim any request that any payment to them would come from the money currently being held in the IIM system, by subtracting from their $58 billion claim the $423 million identified as the consolidated balance of the IIM accounts as of September 30, 2007. See Pls. Mem., Attachment A, Column I, & n.6. Because no specific fund exists at Treasury or elsewhere to satisfy the $58 billion judgment Plaintiffs now demand, the prohibition established in OPM v. Richmond and City of Houston precludes such relief. Any payment would either violate the constitutional limits in the Appropriations Clause or constitute “money damages” contrary to the requirement of section 702 of the APA. City of Houston, 24 F.3d at 1428.6 C. Plaintiffs Have Not Stated A Claim Cognizable in Equity Jurisdiction Even if the Court concludes that sovereign immunity has been waived by section 702 of the APA, that section does not confer jurisdiction and thus jurisdiction – if it exists – must be 6 America’s Community Bankers, 200 F.3d 822, does not help Plaintiffs. The D.C. Circuit reaffirmed, but distinguished, City of Houston from the case before it because the award of equitable monetary relief was based upon statute and “no transfer of funds would be necessary” because the award could be accomplished through offsets on future assessments made against the plaintiffs. 200 F.3d at 829-31. No such statutory payment scheme or offset option is available to Plaintiffs here. Any award would require a “transfer of funds.” found in some other statute. Plaintiffs rely on the general federal question statute, 28 U.S.C. § 1331. Pls. Mem. at 45. Section 1331 gives district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. However, Plaintiffs do not identify which law of the United States creates a general equitable restitution claim against the United States. The Court cannot have jurisdiction over such a claim unless Plaintiffs can provide a specific statute authorizing such relief. See, e.g., Cobell v. Norton, 226 F.R.D. 67, 75 (D.D.C. 2005) (“As this Court has previously made clear, ‘plaintiffs’ substantive rights are created by – and therefore governed by – statute. Thus, to the extent plaintiffs seek relief beyond that provided by statute, their claims must be denied.’”) (quoting Cobell V, 91 F. Supp. 2d at 29). Until now, Plaintiffs’ claims have been grounded in the accounting requirement the Court of Appeals found in the 1994 Act. The 1994 Act obviously does not have a provision supplying monetary relief as a substitute for an accounting. Indeed, it does not provide monetary relief under any circumstances. Plaintiffs repeatedly cite Scott on Trusts and similar treatises but they fail to demonstrate that the language of the 1994 Act offers any unequivocally expressed assent for this Court to impose monetary liability upon the United States. The premise underlying Plaintiffs’ equitable claim to money is that this Court sits as a “Chancellor in Equity,” Pls. Mem. at 8, but this premise is incorrect and has been expressly rejected by the Court of Appeals. When the D.C. Circuit vacated the Court’s 2004 structural injunction that dictated how the historical accounting should be performed, it summarized: “To recap: the district court reissued an injunction dictating how Interior must fulfill its obligation to complete an accounting for the IIM trust fund in the absence of any pending request for reissuance by any party and on the ill-founded assumption that the 1994 Act gave it the freedom of a private-law chancellor to exercise its discretion.” Cobell XVII, 428 F.3d at 1077 (emphasis added). “Nor does the Act have language in any way appearing to grant courts the same discretion that an equity court would enjoy in dealing with a negligent trustee. Congress was, after all, mandating an activity to be funded entirely at the taxpayers’ expense.” Id., 428 F.3d at 1074-75. Thus, because the 1994 Act defines the relief available, Plaintiffs are incorrect in asserting that this Court is free to serve as a traditional Chancellor in Equity. Plaintiffs cite Mitchell II, Pls. Mem. at 2, 5 n.6, 7, 10, to support their argument that this Court has the authority to award equitable relief that includes a monetary reward, but Mitchell II undermines their argument. First, Mitchell II established the important point that acts of Congress are what constitute the trust instruments that "establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities." Mitchell II, 463 U.S. at 224. Thus, Mitchell II militates against expanding relief to provide something Congress never contemplated. Second, Mitchell II was brought in the United States Court of Claims under the Tucker Act, 28 U.S.C. § 1491, and the Indian Tucker Act, 28 U.S.C. § 1505. Mitchell II, 463 U.S. at 211-12. It was a case in which 1,465 individual allottees, an allottees association, and a tribe sought recovery for alleged mismanagement of trust assets. It is hard to comprehend how Plaintiffs, knowing that Mitchell II was brought under the Tucker Act and pursued in the Court of Claims, can assert that “Mitchell II confirms that remedies typically available to other beneficiaries in breach of trust cases are also available to the Indian beneficiaries in these proceedings.” Pls. Mem. at 10. Quite simply, Plaintiffs brought this case in a different court, relying upon a different jurisdictional statute. Plaintiffs’ other authorities are no more helpful. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995), cited for the proposition that an action in restitution can result in a defendant’s payment of money, Pls. Mem. at 14, is not relevant to the statutory scheme in this case.7 Nothing in that case, which involved a dispute between the private parties, overcomes the law of the case here that already addresses the effect of the 1994 Act. Crawford v. La Boucherie Bernard, Ltd., 815 F.2d 117 (D.C. Cir. 1987), is similarly unhelpful. See Pls. Mem. at 12-13. It involved claims brought against private trustees (two brothers) by members of a profit-sharing plan. The issue was whether, under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA), a district court could offset the two brothers’ interest in the profit-sharing plan against a judgment against them based on their breach of trust duties. Actually, if anything, Crawford supports Defendants’ position by demonstrating that courts must look to the pertinent statutory language to ascertain the scope of their authority in a given case. Crawford, 815 F.2d at 119-20. Plaintiffs cite Village of Brookfield v. Pentis, 101 F.2d 516 (7th Cir. 1939), and Beckett v. Air Line Pilots Ass’n, 995 F.2d 280 (D.C. Cir. 1993), for broad propositions that are not in dispute. See Pls. Mem. at 11-12. That “[c]ourts of equity have original inherent jurisdiction to 7 Plaintiffs’ cite to Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318-19 (1999), Pls. Mem. at 8, is inapposite for the same reasons. The dispute there was between a Mexican holding company/construction company and the respondent investment funds, and involved the legality of a district court’s injunction intended to prevent the Mexican company from transferring its assets in which no lien or equitable interest was claimed. Rainbolt v. Johnson, 669 F.2d 767 (D.C. Cir. 1981), Pls. Mem. at 12, is likewise inapplicable because it involved private parties and the trust at issue was not created by statute. decree and enforce trusts and to do whatever is necessary to preserve them from destruction,” Pentis, 101 F.2d at 520-21, does not suggest that Plaintiffs may recover monetary relief in this Court. Nor does the unremarkable proposition that “beneficiaries of a trust . . . may sue to enforce the duties owed to them by [the] trustee” lead to the conclusion that the beneficiaries in this case can recover money pursuant to the 1994 Act. Beckett, 995 F.2d at 287. Where Congress intends to allow an action for monetary relief, it clearly states that intention. This is true in cases involving the trust relationship between the government and Native Americans. See, e.g., Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966) (addressing the jurisdiction conferred on the Indian Claims Commission); Ute Indian Rights Settlement Act, § 507(c), 106 Stat. 4600, 4655 (1992) (“[T]he Tribe is authorized to bring an action for an accounting against the United States, if applicable, in the United States Claims Court for moneys owed plus interest at 10 percent.”). The 1994 Act contains no such provision. Plaintiffs cite several cases in which equity jurisdiction is implied from a statute. See Pls. Mem. at 3-4. These cases flow from the uncontroversial general equity principles set forth in Porter v. Warner Holding Co., 328 U.S. 395 (1946), and reiterated in Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288 (1960). None involved the United States as a defendant. Notably, as this Court has recognized, “the [g]overnment is simply not in the position of a private litigant or a private party under traditional rules of common law or statute.” Cobell V, 91 F. Supp. 2d at 29 (quoting Nevada v. United States, 463 U.S. 110, 141 (1983)); see also United States v. Nordic Village, Inc., 503 U.S. 30, 39 (1992) (“Resort to the principles of trust law is also of no help to respondent. Most of the trust decisions respondent cites are irrelevant, since they involve private entities, not the Government.”). Indeed, in Robert De Mario Jewelry, and in every one of the cases involving implied equity jurisdiction cited in Plaintiffs’ Memorandum, at 3-4, the United States was the plaintiff. The defendant in each case had been found to have violated a statutory provision and the question presented was whether the court had jurisdiction over a claim to recover any money gained as consequence of violating the statute brought by the federal agency charged with enforcing the statute. In their Memorandum, Plaintiffs have not stated a claim, but rather a desire to receive money – and, as discussed below, an ill-conceived mechanism for calculating how much money they want. This Court does not have jurisdiction to give Plaintiffs the money they seek. D. Equitable Restitution Is Not Available To Plaintiffs Equitable restitution is not an available alternative remedy for Plaintiffs. Application of equitable restitution principles requires a specific fund of money within Defendants’ possession.8 Knudson, 534 U.S. at 214 (“[F]or restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.”). If the specific fund of money is not in Defendants’ possession, then, as in Knudson, “the kind of restitution that” the Plaintiffs seek “is not equitable – the imposition of a constructive trust or equitable lien on particular property – but legal – the imposition of personal liability for the benefits that they conferred upon” Defendants. Id. In Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), the Supreme 8 As the Supreme Court has noted, there is a limited but inapposite exception to this rule for “an accounting for profits.” Knudson, 534 U.S. at 214 n.2. This form of equitable restitution would allow a plaintiff to recover profits produced by the defendant’s use of property even if the plaintiff cannot identify a particular res containing the profits sought to be recovered. Id. (citing 1 D. Dobbs, Law of Remedies § 4.3(1), p. 588 (2d ed. 1993). Court, in a unanimous opinion with no concurrences, again explored the differences between true equitable restitution (available under section 502(a)(3) of ERISA as “other appropriate equitable relief”) and legal restitution, and again reemphasized that “particular funds or property in the defendant’s possession” was an essential requirement of equitable restitution. Id. at 362. Whereas in Knudson the particular funds had already passed into a “Special Needs Trust” and were not the subject to a claim of equitable restitution, the funds in Sereboff were still in the possession of the defendants and Mid Atlantic identified a “particular fund” as opposed to the general assets of the Sereboffs. Id. at 363-64; accord Moore v. Capitalcare, Inc., 461 F.3d 1, 7-8 (D.C. Cir. 2006). Plaintiffs here cannot point to a particular fund that contains the funds to which they assert ownership nor is it likely that they can trace any of the claimed sums into a particular fund held by the United States. See In re Enron Corp. Sec., Derivative & ERISA Litig., 284 F. Supp. 2d 511, 679 (S. D. Tex. 2003) (requesting ERISA monetary relief equal to the difference between what their pensions are worth and what they would have been worth using a true valuation of Enron stock). The Enron court noted that: unless Plaintiffs can trace some or all of the sum of money to which they claim entitlement, but which was never received by them or by the plan, through Enron's enormous business into the bonuses and increased salaries that went into these particular Defendants' personal pockets and which remains within their possession and control. Plaintiffs have set themselves a daunting task. Id. Accordingly, equitable restitution is not available to Plaintiffs. E. The District Court Lacks Jurisdiction Because Remedies for Breach of Trust Are Impliedly Forbidden Under The APA Although styled as a claim for “equitable restitution,” Plaintiffs’ new demand for money is essentially a claim for recovery of money for breach of trust. Indeed, Plaintiffs repeatedly allege a breach of trust in their Memorandum. See, e.g., Pls. Mem. at 1 n.2, 2, 3, 5, 6 n.9 & n.12, 7-10, 13, 18, 28, 31, 44, 51, 53-54, 58, 62. To be sure, Plaintiffs do not make it clear precisely which alleged breach they rely upon: at times they seem to rely on a failure to conduct an accounting, at others on some ill-defined notion that Defendants have improperly retained the IIM beneficiaries’ trust money or at least unreasonably delayed in making payment, and at other points, Plaintiffs rely on a strained theory that Defendants have improperly commingled IIM trust money with United States money. In any event, whatever the alleged breach of trust may be, as an equitable remedy for such a breach, Plaintiffs claim the right to recover money. This Court does not have jurisdiction to entertain Plaintiffs’ new breach of trust claim. The APA’s waiver of sovereign immunity is not available “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. The D.C. Circuit has held in contract cases that the Tucker Act is one such statute, and that consequently all claims premised on contracts – regardless of whether the plaintiff seeks damages, specific performance, quantum meruit relief, or something else – are "impliedly forbid[den]" under the APA. See, e.g., Albrecht v. Comm. on Employee Benefits, 357 F.3d 62, 68 (D.C. Cir. 2004)(“‘the Tucker Act impliedly forbids – in APA terms – not only district court awards of money damages, which the Claims Court may grant, but also injunctive relief, which the Claims Court may not.’”) (quoting Transohio Savings Bank v. OTS, 967 F.2d 598, 609 (D.C. Cir. 1993)); Sharp v. Weinberger, 798 F.2d 1521, 1524 (D.C. Cir. 1986) (“We know of no case in which a court has asserted jurisdiction [under the APA] either to grant a declaration that the United States was in breach of its contractual obligations or to issue an injunction compelling the United States to fulfill its contractual obligations.”); see also Christopher Village, L.P. v. United States, 360 F.3d 1319, 1327-29, 1332-33 (Fed. Cir. 2004) (Fifth Circuit lacked jurisdiction to issue a declaratory judgment as to HUD’s liability on a contract, even as a predicate for a damages action in the Court of Federal Claims, because the APA does not waive the government’s immunity from such a claim); Katz v. Cisneros, 16 F.3d 1204, 1209 (Fed. Cir. 1994) (“where contract damages are available in the Court of Federal Claims, the Tucker Act forbids specific performance or declaratory relief under its terms and thus impliedly forbids such relief via the APA”). Indeed, the legislative history of section 702 specifically cites the Tucker Act, 28 U.S.C. § 1491(a), as an example of a statute that “impliedly forbids” relief under the APA. See H.R. Rep. No. 94-1656 (1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6133. Of course, the Tucker Act covers not only claims on contracts, but also “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department.” 28 U.S.C. § 1491(a). The Supreme Court has recognized that the Tucker Act, and its companion statute, the Indian Tucker Act, 28 U.S.C. § 1505, include claims for breach of trust relationships established by Congress. See, e.g., United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II). Accordingly, just as Congress intended the Tucker Act to serve as the vehicle for litigating contract claims against the government – and thus impliedly forbade any relief (damages, equitable remedies, or otherwise) on a contract under the APA – it is not unreasonable to conclude that Congress likewise intended for breach of trust claims to proceed under the Tucker Act, and not under the APA.9 The statutes creating the trust relationships with individual 9 Of course, breach of trust claims involving less than $10,000 – not relevant here – are covered by the Little Tucker Act, 28 U.S.C. § 1364(a)(2). See, e.g., LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007). Indians predate the APA. The Indian breach of trust cases discussed in recent years by the Supreme Court have all come up through the Court of Federal Claims under the Tucker Act, and the Indian Tucker Act. See, e.g., Mitchell II, 463 U.S. 206; United States v. Navajo Nation, 537 U.S. 488 (2003); United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003). Indeed, in Mitchell II the Supreme Court reviewed the legislative history of the Indian Tucker Act and found that “an important goal of the Act was to ensure that it would ‘never again be necessary to pass special Indian jurisdictional acts in order to permit the Indians to secure a court adjudication on any misappropriations of Indian funds.’” 463 U.S. at 214 (quoting 92 Cong. Rec. 5313 (1946) (statement of Rep. Jackson)). The Supreme Court noted that the House Report for the Indian Tucker Act stressed the same point on the need for legislation that would provide Indians access to the Court of Federal Claims to bring their breach of trust claims for obligations assumed by the federal government: “‘If we fail to meet these obligations by denying access to the courts when trust funds have been improperly dissipated or other fiduciary duties have been violated, we compromise the national honor of the United States.’” 463 U.S. at 215 (quoting H.R. Rep. No. 1466, 79th Cong. 1st Sess., 5 (1945)). The APA is a statute designed to provide remedies in cases that the Tucker Act does not touch, and the 1976 amendments to the APA were never intended to create a scheme to circumvent or supplement the Tucker Act and its limitations. Plaintiffs’ proper remedy, if they have a valid breach of trust claim, lies, if anywhere, in the Court of Federal Claims under the Tucker Act, not in the district court. To be sure, as long as Plaintiffs were pursuing their claim for an accounting under the 1994 Act, they were not pursuing a monetary claim impliedly forbidden by the Tucker Act. Thus, in Megapulse Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982), the plaintiff sought to enjoin the public release of technical data that it had supplied to the Coast Guard pursuant to a contract, asserting that release of the data would violate the Federal Trade Secrets Act. In holding that the action was properly brought under the APA, the D.C. Circuit emphasized that the “source of the rights upon which the plaintiff base[d] its claims” was not the contract, but the Trade Secrets Act. See 672 F.2d at 968; see also id. at 969 (noting that the contract was relevant only to the government’s defense to the trade secret claim, not to the plaintiff’s affirmative case). Were it otherwise, the court recognized, dismissal would have been required: “[W]e agree that a plaintiff whose claims against the United States are essentially contractual should not be allowed to avoid the jurisdictional (and hence remedial) restrictions of the Tucker Act by casting its pleadings in terms that would enable a district court to exercise jurisdiction under a separate statute and enlarged waivers of sovereign immunity, as under the APA.” Id. at 967. Similarly, here, the accounting obligation imposed by the 1994 Act is enforceable under the APA. However, because Plaintiffs’ money claims are now for a breach of trust, they are subject to the jurisdictional restrictions of the Tucker Act. If Plaintiffs’ “equitable restitution” claims are sufficient to vest APA jurisdiction in a district court, it would be difficult to imagine any breach of trust claim against a federal agency that could not similarly be restyled as an APA claim. As observed by the Court of Claims: Since the United States by reason of its nature acts only through agents, it is hard to conceive of a claim falling no matter how squarely within the Tucker Act which could not be urged to involve as well agency error subject to review under the APA . . . . We refuse to believe that Congress intended, in enacting the APA, so to destroy the Court of Claims by implication. Hoopa Valley Tribe v. United States, 596 F.2d 435, 445 (Ct. Cl. 1979) (quoting Warner v. Cox, 487 F.2d 1301, 1306 (5th Cir. 1974)); accord, e.g., Consolidated Edison Co. v. United States, 247 F.3d 1378, 1385 (Fed. Cir. 2001) (“This court and its sister circuits will not tolerate a litigant’s attempt to artfully recast its complaint to circumvent the jurisdiction of the Court of Federal Claims.”). Because Plaintiffs’ new money claim is in substance an action for breach of trust, relief under the APA is impliedly forbidden by the Tucker Act, and jurisdiction in the district court is foreclosed by 5 U.S.C. § 702. F. Claims For The Payment Of Money Were Stricken From Plaintiffs’ Complaint And The Only Relief Available To Them Is An Accounting Pursuant To The 1994 Act Since the early stages of this case, the Court has consistently ruled that Plaintiffs’ only claim is for an accounting and that the Court would not entertain a claim seeking an infusion of money into the IIM accounts. Thus, in 1999, the Court stated, “Plaintiffs do not, as explained below, make any type of claim for money in this case.” Cobell V, 91 F. Supp. 2d at 27. The corresponding explanation left no room for doubt: Plaintiffs have expressly disavowed seeking an order for the payment of money in this case. Thus, accepting defendants’ “true accounting” argument as correct for the moment, plaintiffs simply do not seek every element of a “true'' accounting, as that phrase was meant at common law. Instead, and most importantly (as the government is fond of recognizing in other contexts) plaintiffs do not even properly seek a common-law claim for an accounting. See infra subpart III(C). Instead, they seek to enforce their statutory right to an accounting as that phrase is meant under the provisions of 25 U.S.C. § 162a(d)(1)-(7) and 25 U.S.C. § 4011. Although the interpretation of this statute does, as the government admits, demand that the court look to common law for guidance, it does not mean that plaintiffs must by necessity seek an order of money to be paid. To the contrary, plaintiffs narrowly seek to preclude defendants from acting contrary to law in abridging plaintiffs' rights granted by statute and to affirmatively force defendants to comply with the law as stated by Congress. Id. (emphasis added). The Court’s holding in 1999 accords with its 1998 denial of Defendants’ motion to dismiss, which asserted that Plaintiffs were seeking a monetary award which is beyond this Court’s jurisdiction.10 Accepting the assurances of Plaintiffs’ counsel, the Court struck portions of their complaint and denied Defendants’ motion to dismiss. The Court stated: Given the allegations contained in the Complaint and, importantly, certain representations of the plaintiffs’ counsel, the Court holds that the retrospective allegations of the Complaint seek solely an accounting. Thus, the plaintiffs do not seek money damages. *** The plaintiffs have repeatedly and expressly stated that their Complaint does not seek an additional infusion of money or other damages for other losses, but rather requests only an accounting. See Transcript of October 5, 1998, Motions Hearing at 39 (“[The government] also like[s] the phrase that we're seeking an infusion of money. That's just not what we're seeking. We're not seeking any new or additional money. The money is there. The amount is misstated. We seek to adjust the statement of the amount.”) The Court will construe the Complaint in that light. This is a reasonable construction of certain ambiguous phrases contained in the Complaint upon which the defendants focus, such as “breach of 10 Defendants raised jurisdictional and sovereign immunity issues concerning Plaintiffs’ request for monetary relief. This Court, based in large part on representations by Plaintiffs’ counsel, avoided the issue, stating: Although the Complaint contains other references that could presumably lead to compensatory relief,[footnote omitted] the plaintiffs have plainly stated that they only seek an accounting, not a cash infusion. Thus, the defendants' argument supporting their motion to dismiss on this point is moot.17 Fn17: Because the plaintiffs admit that they do not ask this court to order cash infusions into the account for lost or mismanaged funds, this case does not present an “artful pleading” problem.[see Chula Vista City Sch. Dist. v. Bennett, 824 F.2d 1573, 1579 (Fed. Cir. 1987); Motorola, Inc. v. Perry, 917 F.Supp. 43, 46 (D.D.C. 1996)] ... In the present case, the defendants claim that a cash infusion is really the gravamen of the plaintiffs’ Complaint. The defendants’ fear, however, is belied by the plaintiffs’ express concession that they do not ask this Court to take such an action.” Cobell v. Babbit, 30 F. Supp. 2d at 40 & n.17 (emphasis added). trust'' and “made whole.” Although the Complaint contains other references that could presumably lead to compensatory relief, the plaintiffs have plainly stated that they only seek an accounting, not a cash infusion. Thus, the defendants' argument supporting their motion to dismiss on this point is moot. Because the plaintiffs do not ask this Court to order the government to make cash infusions into the IIM accounts to recompense the plaintiffs for lost or mismanaged funds, but instead ask this Court solely for a declaration of the defendants' trust duties and an accounting of money already existing in the account, the Court will deem the plaintiffs' Complaint to state such a claim in that regard only. Cobell v. Babbitt, 30 F. Supp. 2d 24, 39-40 (D.D.C. 1998) (Cobell I) (emphasis added and footnotes omitted). The Court struck language from the complaint which it found to be “clearly irrelevant to the relief the plaintiffs proclaim to seek”: [T]he following references are stricken from the Complaint: (1) “[T]he true totals would be far greater than those amounts, but for the breaches of trust herein complained of.” Plaintiffs’ Complaint ¶ 2; (2) “[Defendants] have lost, dissipated, or converted to the United States' own use the money of the trust beneficiaries.” Id. ¶ 3(d); (3) “and to direct [the defendants] to restore trust funds wrongfully lost, dissipated, or converted.” Id. ¶ 4; (4) “Failure to exercise prudence and observe the requirements of law with respect to investment and deposit of IIM funds, and to maximize the return on investments within the constraints of law and prudence.” Id. 21(g). Cobell I, 30 F. Supp. 2d at 40 n.18 (emphasis added). In 2005, this Court reaffirmed that “[t]he plaintiffs’ single ‘live’ cause of action seeks a remedy for this legal breach [failure to provide an accounting], and the remedy that this Court has fashioned is limited to ensuring that the defendants produce the requisite accounting of the Indian trust.” Cobell v. Norton, 226 F.R.D. 67, 77 (2005). The Court noted that, “[a]s this Court has previously made clear, ‘plaintiffs’ substantive rights are created by – and therefore governed by – statute. Thus, to the extent plaintiffs seek relief beyond that provided by statute, their claims must be denied.’” Id. at 75 (quoting Cobell V, 91 F. Supp. 2d at 29). The Court of Appeals affirmed this point in 2006, stating that the accounting of the IIM accounts is the “ultimate relief sought in this case” and “the ultimate relief sought by the class members.” Cobell v. Kempthorne, 455 F.3d 301, 314-15 (D.C. Cir. 2006) (Cobell XVIII). G. Plaintiffs’ Renewed Efforts To Expand Their Remedies To Include Money Must Fail Plaintiffs seek to avoid the above language from Cobell I, Cobell V, the Court’s 2005 opinion, and Cobell XVIII by relying upon (1) Rule 54(c) of the Rules of Civil Procedure; and (2) selective quotes of general language within certain Cobell opinions, taken out of context. Pls. Mem. at 65-67. Those efforts should be rejected. 1. Federal Rule Of Civil Procedure 54(c) Does Not Provide A Basis For Plaintiffs’ Equitable Disgorgement Claim The previous decisions of this Court, which relied upon Plaintiffs’ own representations, clearly recognize that the relief sought was not a “true accounting” as Plaintiffs now contend, Pls. Mem. at 5, and did not include “any claim for money,” whether labeled as damages or some other sort of cash infusion. Cobell V, 91 F. Supp. 2d at 27 (“Plaintiffs have expressly disavowed seeking an order for the payment of money in this case. Thus, accepting defendants’ “true accounting” argument as correct for the moment, plaintiffs simply do not seek every element of a “true'' accounting, as that phrase was meant at common law.”). Reversing course, Plaintiffs now contend that Federal Rule of Civil Procedure 54(c) allows this Court to order the very equitable monetary relief expressly disclaimed earlier, in the form of “equitable restitution” or “equitable disgorgement.” Pls. Mem. at 11 n.21. Plaintiffs’ arguments stretch the application of Rule 54(c) beyond the point of reason and precedent and ignore a critical part of Rule 54, the requirement that the relief provided be based upon a claim that “entitle[s]” the party to that relief not specifically requested. While Rule 54(c) permits the Court to “grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings,” it is also true, consistent with fundamental notions of due process and fair play, that “Rule 54(c) does not allow the district court to award relief based on a theory that was not properly raised at trial.” Old Republic Ins. Co. v. Employers Reins. Corp., 144 F.3d 1077, 1080 (7th Cir. 1998). The First Circuit explained in Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168 (1st Cir. 1995): Rule 54(c) creates no right to relief premised on issues not presented to, and litigated before, the trier.” Dopp [v. HTP Corp.], 947 F.2d 506, 518 (1st Cir. 1991); see also In re Revinius Inc., 977 F.2d 1171, 1177 (7th Cir. 1992) (holding that “Rule 54(c) does not allow a party to obtain relief based upon a . . . theory that was not properly raised at trial”); Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920, 923-24 (3d Cir. 1984) (explaining that the rule permits relief predicted on a particular theory “only if that theory was squarely presented and litigated by the parties at some stage or other of the proceedings”); Cioffe v. Morris, 676 F.2d 539, 541 (11th Cir. 1982) (similar). 57 F.3d at 1173-74. In language directly applicable here, involving an explicit removal of certain theories of recovery at the outset of the case, the Court concluded: Thus, Rule 54(c)'s concern for appropriate relief does not include relief which a plaintiff has foregone because of failures in the pleadings or in the proof. See 6 James W. Moore et al., Moore's Federal Practice ¶ 54.62 (2d ed. 1985). . . . Rule 54(c) ['s] . . . safety net cannot be stretched so widely as to grant a plaintiff relief on an unpleaded theory of which the defendant had no notice. Id. Similarly, the Fourth Circuit explored the exception to the seeming compulsory nature of Rule 54(c), determining that “alternative relief” is not available when “granting it would be unjust.” Gilbane Bldg. Co. v. Federal Reserve Bank of Richmond, 80 F.3d 895, 901 (4th Cir. 1996) (citing Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716 (4th Cir. 1983); United States v. Marin, 651 F.2d 24, 31 (1st Cir. 1981)); accord Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975) ("[A] party may not be `entitled' to [Rule 54(c) ] relief if its conduct of the cause has improperly and substantially prejudiced the other party."); Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 400 (4th Cir. 1999). In Gilbane, relying upon the Atlantic Purchasers decision, the court determined that: Trebling a defendant's exposure after trial, we determined, would be unfairly prejudicial: [A] substantial increase in the defendant's potential ultimate liability can constitute specific prejudice barring additional relief under Rule 54(c). We believe that this exception to the Rule is applicable in the present case. [The plaintiff]'s complaint gave no warning to [the defendant] that successful prosecution of the action could result in an award to [the plaintiff] of three times [its] actual damages. This default denied [the defendant] and its counsel the opportunity to make a realistic appraisal of the case, so that their settlement and litigation strategy could be based on knowledge and not speculation. Gilbane, 80 F.3d at 901 (quoting from Atlantic Purchasers, 705 F.2d at at 716-17). In this case, the Plaintiffs now seek monetary relief after expressly disclaiming such a theory and accepting this Court’s conforming amendments to their complaint. Allowing Plaintiffs to drastically alter their course after ten years is the very prejudice described in Gilbane and Atlantic Purchasers. The Third Circuit, in Evans Products Co. v. West American Insurance Co., 736 F.2d 920, 923 (3d Cir. 1984), recognized that “ fundamental notions of due process and fair play” limit the reach of Rule 54(c). “Put another way, relief may be based on a theory of recovery only if the theory was presented in the pleadings or tried with the express or implied consent of the parties. Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969).”11 Id., 736 F.2d at 923-24; Baker 11 The “express or implied consent” language is embodied in Federal Rule of Civil Procedure 15(b). Rule 15(b) is often a corollary to Rule 54(c). See Int’l Harvester v. East Coast Truck, 547 F.2d 888, 890-91 (5th Cir. 1977) (trial court’s granting of contract rescission was improper when not sought by the parties who had stipulated to the validity of the contract; the v. John Morrell & Co., 266 F. Supp. 2d 909, 929-30 (N.D. Iowa 2003) (relief not specifically requested may be granted if the shift in thrust of the case does not prejudice the other party and issue were squarely presented and litigated at trial).12 In the instant case, there clearly was no “express or implied consent” to proceeding on a theory of monetary relief based upon the complaint. The cases cited by Plaintiffs do not support their reliance upon Rule 54(c). Pls. Mem. at 65-66. Plaintiffs’ quotation from Robinson v. Lorillard Corp., 444 F.2d 791, 803 (4th Cir. 1971) (“leaving no question that it is the court's duty to grant whatever relief is appropriate in the case on the basis of the facts proved ”) is an unremarkable statement of the general rule; however, the court continued: There are only two limiting principles to the general rule which might avail the defendants. The first is that a remedy desired by none of the parties should not be forced upon them. [citations omitted] But that is not our case. *** The one other limiting principle which might assist defendants' case is expressed pleadings could not have been properly amended under Rule 15(b) to include rescission and Rule 54(c) was not available because of prejudice to the defendant); see also Luria Bros. & Co., Inc. v. Alliance Assurance Co., Ltd., 780 F.2d 1082, 1088-90 (2d Cir. 1986) (citing International Harvester and reversing trial court’s relief of rescission when the issues of rescission and restitution were not even discussed at trial until the court announced its decision). 12 In USX Corp. v. Barnhart, 395 F.3d 161, 165 (3d Cir. 2004), the court appears to address the situation now presented to this Court: As the Advisory Committee explains, it “makes clear that a judgment should give the relief to which a party is entitled, regardless of whether it is legal or equitable or both.” Fed.R.Civ.P. 54 advisory committee's note to 1937 adoption. In other words, Rule 54(c) addresses and cures a limited formal problem. It is not designed to allow plaintiffs to recover for claims they never alleged. USX Corp., 395 F.3d at 165 (emphasis added). in the following manner by Rental Development Corporation of America v. Lavery, 304 F.2d 839, 842 (9th Cir. 1962): If, however, it is made to appear that the failure to ask for particular relief substantially prejudiced the opposing party, Rule 54(c) does not sanction the granting of relief not prayed for in the pleadings. Robinson, 444 F.2d at 802. Plaintiffs’ citation to Dunkin’ Donuts of America, Inc. v. Minerva, Inc., 956 F.2d 1566, 1575 (11th Cir. 1992), is even less helpful to them because the only discussion of Rule 54(c) in Dunkin’ Donuts is in the dissenting opinion (Clark, J., concurring in part and dissenting in part). Moreover, the dissenting judge recognized the second limiting principle set forth in the Robinson case - prejudice to the opposing party. Id. That limiting principle is clearly applicable here where the Defendants are prejudiced by now having to respond to allegations and theories which Plaintiffs expressly disclaimed ten years ago to avoid jurisdictional and sovereign immunity issues. Plaintiffs’ reliance on Reynolds v. Slaughter, 541 F.2d 254 (10th Cir. 1976), and Matarese v. Moore-McCormack Lines. Inc., 158 F.2d 631 (2d Cir. 1946), is similarly misplaced. The plaintiffs there sought to recover on contract or quasi-contract theories. However, when the court found that no valid contract existed but value had been provided, the court selected restitution or unjust enrichment as appropriate remedies. Both appellate courts determined that the trial courts did not err because the proof at trial established the entitlement and the defendants were not prejudiced. This case is not a case in which the relief now requested was “squarely presented and litigated at some stage” of the proceedings or was tried with the express or implied consent of the parties. To the contrary, Plaintiffs expressly and repeatedly disclaimed the relief now sought when the issue was squarely presented to the Court. This Court accepted Plaintiffs’ disclaimer of “any cash infusion” of lost or mismanaged monies, denied the Defendants’ dispositive motions and struck from the Complaint the language that might support assertions that monetary relief was being sought. Before the Court can grant “alternative relief” under Rule 54(c), there must be an “entitlement” to that relief based upon the complaint or agreed upon modifications. This critical element is lacking here by Plaintiffs’ own design. Because Rule 54(c) does not permit a litigant at the end of a proceeding to obtain the very relief previously disclaimed to defeat a motion to dismiss, Plaintiffs’ reliance on Rule 54(c) fails. 2. Plaintiffs’ Selected Citations From Certain Cobell Decisions Do Not Support An Equitable Disgorgement Claim Plaintiffs’ reliance upon selected quotations from Cobell I and Cobell VI is particularly misplaced. Plaintiffs quote this Court in Cobell I as stating generally that “to the extent that the plaintiffs state a claim for equitable relief for breach of trust duties, the defendant’s motion for judgment on the pleadings must be denied.” Pls. Mem. at 67 (quoting Cobell I at 33). Plaintiffs ignore that, in subsequent portions of the Court’s decision, the Court unequivocally determined that “the retrospective allegations of the Complaint seek solely an accounting.” Id. at 39. Plaintiffs also quote the Court of Appeals in Cobell VI, wherein the court cited general tenets related to equitable remedies and stated more specifically that this Court “has substantial ability to order that relief which is necessary to cure the appellants’ legal transgressions,” and that this Court was “justified in fashioning equitable relief that would ensure the vindication of plaintiffs’ rights.” Cobell VI, 240 F.3d at 1108. Plaintiffs fail to acknowledge, however, that the only equitable remedy that was addressed by the Court of Appeals was the historical accounting. No consideration was given to paying Plaintiffs money as an appropriate equitable remedy. Indeed, the only discussion in Cobell VI regarding the payment of money in an Indian case was the observation that the courts have “repeatedly recognized the right of Native Americans to seek relief for breaches of fiduciary obligations, including suits for monetary damages under the Tucker Act where prospective remedies would be inadequate.” Id. at 1104, 1107 (citing Mitchell II) (emphasis added)). The court correctly noted that Mitchell II involved the award of monetary relief not as an equitable remedy, but as “monetary damages where injunctive or declaratory relief would be insufficient. Mitchell II, 463 U.S. at 227.” Cobell VI, 240 F.3d at 1108 (emphasis added). Significantly, the Court of Appeals in Cobell VI concluded that this court “should (and did) remand to the agency for the proper discharge of its obligations . . . ” Id. at 1109. Thus, the court’s general language in Cobell VI regarding equitable remedies, read in context with the issues then before it and the fact that the court’s decision did not even address equitable monetary relief, provides no support for an award of equitable restitution and disgorgement. As this Court summarized in 2005, “the remedy that this Court has fashioned is limited to ensuring that the defendants produce the requisite accounting of the Indian trust. Nothing in the Cobell VI Opinion can be construed to broaden the scope of this case to include issues unrelated to the defendants’ obligation to provide an accounting of the trust . . . .” 226 F.R.D. at 77 (emphasis added). The Court of Appeals affirmed this point in 2006, stating plainly that the accounting of the IIM accounts is the “ultimate relief sought in this case” and “the ultimate relief sought by the class members.” Cobell XVIII, 455 F.3d at 314-15.13 Finally, Plaintiffs assert that the Court of Appeals “expressly reserved the right of this Court to address the impossibility of an accounting” in Cobell XVII, 428 F.3d at 1077. This is a misstatement. What the D.C. Circuit actually stated was: Under these circumstances, the district court abused its discretion by reissuing the injunction. We reach this conclusion without prejudice to plaintiffs’ argument on appeal that execution of the reissued injunction is impossible . . . Id. This holding only clarifies that the Court of Appeals did not rule upon Plaintiffs’ impossibility argument regarding “the reissued injunction.” It obviously did not address, let alone “expressly reserve,” this Court’s authority to entertain an equitable disgorgement claim based upon a conclusion that the accounting is impossible due to inadequate appropriations. Thus, Plaintiffs have presented no basis for this Court to award equitable disgorgement. The law of this case dictates just the opposite.14 13 To the extent the Court of Appeals has considered monetary relief in this case, it has expressed grave skepticism. See Excerpt, Appellate Oral Argument Transcript, at 41:23­ 58:5 (Sept. 16, 2005), included as Exhibit 1 filed contemporaneously with this memorandum.. 14 Defendants argued in their June 13, 2007 brief that the doctrine of judicial estoppel bars Plaintiffs from seeking monetary relief. Defendants’ Responding Brief Regarding The Scope Of The October 10, 2007 Hearing [Dkt 3339], at 7-11. That argument is still valid. Because they previously persuaded the Court that they were not seeking an order for the payment of money and obtained favorable decisions on Defendants' dispositive motions as a result, they are now estopped from asserting the remedies of equitable restitution and disgorgement as substitutes for the accounting requested in their complaint. New Hampshire v. Maine, 532 U.S. 742, 748 (2001) (generally, rule of judicial estoppel prevents a party from prevailing in one aspect of a case on an argument and then relying on a contradictory argument to prevail in another aspect). In New Hampshire v. Maine, the Supreme Court identified three factors typically requiring judicial estoppel: (1) the party’s later position is clearly inconsistent with the earlier position; (2) the party succeeded in persuading the court to accept the party’s earlier position so the acceptance of the inconsistent position would create the perception that either the first or second court was misled; and (3) the party asserting the inconsistent position would derive an unfair advantage or impose an unfair detriment to the opposing party if not II. The Court’s Impossibility Holding Does Not Justify Equitable Disgorgement Based Upon Aggregate Throughput Figures In the Court’s January 30, 2008 Findings of Fact and Conclusions of Law, Cobell v. Kempthorne, 532 F. Supp. 2d 37 (D.D.C. 2008) (Cobell XX), the Court concluded that Congress’ “refusal to appropriate enough money” to pay for the historical accounting that the Court found legally required15 “render[s] a real accounting impossible – or, perhaps, [ ] recognize[s] that such an accounting is impossible, unless it is ‘nuts’ enough to pay more than $3 billion to hunt down perhaps $3 billion of unexplained variances in the government’s accounts.”16 Cobell XX at 102. The Court then stated that its conclusion that “Interior is unable estopped. As explained throughout this brief, those factors have all been met. 15 Defendants respectfully note that the United States continues to hold a more limited view of the accounting obligation than the Court has articulated. Neither the 1994 Act nor common law trust principles specify the requirements for the accounting. See Cobell XVII, 428 F.3d at 1076 (“[N]either congressional language nor common law trust principles (once translated to this context) establish a definitive balance between exactitude and cost.”). Thus, the D.C. Circuit confirmed that the district court owe[s] substantial deference to Interior's plan. The choices at issue require[] both subject-matter expertise and judgment about the allocation of scarce resources, classic reasons for deference to administrators. Id. In the final analysis, Cobell XVII confirms that the Secretary is entitled to substantial deference as to his decisions about allocating resources required to satisfy the accounting requirements of the 1994 Act and assembling the ledger of account transactions constituting that accounting. 16 Defendants respectfully disagree with the Court’s conclusions as to the scope of the accounting required by the 1994 Act, as well as the holding of impossibility that resulted from those conclusions. Even assuming that the Court was correct as to the “plain meaning” of the 1994 Act, a point with which we disagree, that plain meaning should not have led to the conclusion that Interior’s efforts to implement the Act are futile. See Alabama Power Co. v. Costle, 636 F.2d 323, 360 n.89 (D.C.Cir. 1980), quoting United States v. American Trucking Ass'n, 310 U.S. 534, 543 (1939), and citing District of Columbia v. Orleans, 406 F.2d 957, 959 (D.C. Cir. 1968) (recognizing the tenet of statutory construction that, notwithstanding the “plain to perform an adequate accounting of the IIM trust does not mean that a just resolution of this case is hopeless. It does mean that a remedy must be found . . . .” Id. at 103. At a March 5, 2008, status conference regarding “an appropriate remedy,” id., this Court invited Plaintiffs to file, for the first time ever, “a written claim for equitable disgorgement.” March 5, 2008, Status Conference Transcript (Tr.) at 40. As explained below, entitlement to equitable disgorgement does not follow from the Court’s impossibility holding and should not be based upon an aggregate throughput analysis in any event. Accordingly, Plaintiffs’ claim should be denied and the trial scheduled for June 9, 2008 cancelled. A. Interior’s Ability To Perform An Aggregate Throughput Analysis Of All Funds Collected Is Not Relevant To What Remedy Is Available To Plaintiffs As found in Cobell VI, the 1994 Act placed a statutory obligation upon Interior to perform individual historical accountings for thousands of individual trust accounts. The 1994 Act does not require, nor for the past eleven years did this litigation address, an aggregate throughput analysis by Interior of all funds ever collected by the agency but that were not posted to IIM accounts. See 25 U.S.C. § 162a(d) (the Interior Secretary shall prepare and provide “periodic statements of . . . account performance” and balances to individual account holders); Cobell v. Norton, 428 F.3d 1070, 1073-78 (D.C. Cir. 2005) (Cobell XVII) (addressing the scope of the accounting to be conducted on individual accounts of beneficiaries). In fact, Defendants twice proposed and were twice enjoined to perform an individual-by-individual, not aggregate, accounting. Because of this history, it is fundamentally unfair to attempt to now devise an meaning” of a statute, a court must look beyond the words to the purpose of the act where its literal terms lead to “absurd or futile results”). For the purpose of this brief, however, we do not further challenge those conclusions but address the consequences that flow from them. equitable remedy based upon aggregate throughput figures. Despite that, Plaintiffs’ arguments for equitable disgorgement are clearly based upon such an analysis. The Court has itself suggested that an aggregate throughput analysis, rather than the completion of individual accountings for individual IIM accounts, may be appropriate. In 2007, for the first time in this case, the Court required that issues related to “throughput” be addressed as part of an evidentiary proceeding. June 18, 2007 Status Conference, Tr. 68-69. In its January 30 opinion, the Court identified “core questions” as to whether the aggregate information demonstrates “how many of the total dollars are accounted for in some way,” and “whether the work done so far permits any reliable estimate of the difference (if any) between dollars in and dollars out.” Cobell XX at 82. After receiving evidence on this “throughput” at the October 2007 hearing, the Court opined that “[t]he response of both parties to the throughput question can best be described as desultory.” Id. The Court appears now to be extending further the paradigm of an aggregate throughput analysis of all funds to the remedies phase of this case. In its January 30 opinion, the Court focused upon “$3 billion of unexplained variances in the government’s account,” and observed that Defendants’ throughput estimate appeared “to show an expected shortfall of about $3 billion between receipts and postings.” Id. at 86. The Court also found that the data contained in AR­171 “provide only a starting point in assessing the size of the IIM trust fund that cannot be accounted for.” Cobell XX at 84. As established below in Part IV, supra, the approximately $3 billion difference between all funds collected by Interior and those funds posted to IIM accounts does not constitute a “shortfall” or “variances in the government’s account.” Irrespective of that fact, there is no factual reason for making an aggregate throughput analysis the predicate of a monetary claim. The throughput data Defendants compiled comprises aggregate information; it does not reflect upon the adequacy of historical accounting of individual accounts or serve as a basis to analyze any monetary remedy to Plaintiffs. Id. at 102. Indeed, there is a rational reason for the limited evidence the parties were able to present during the October, 2007 trial regarding the total amount of funds that have passed through the IIM and related accounts over the past 100 years or more. Simply put, the administration of IIM accounts has never been performed on an aggregate level, where aggregate dollar amounts were compiled and reconciled nationally. As the Court recognized, IIM accounts throughout history have been administered on an individual-by-individual basis, first in local offices and then, most recently, through the work of OHTA and its contractors. Cobell XX at 83; October 24, 2007 Tr. at 1917:6-10 (Fitzgerald). Aggregated IIM account data exists only to a limited extent and has not been readily available. This does not reflect a failure on the part of the Government; accounting data are compiled to serve identified needs, and the accounting duty at issue in this case pertains to the provision of statements of account to individual account holders. The 1994 Act did not mandate the provision of an aggregate trust accounting statement. No consolidated IIM trust exists. Rather, there are hundreds of thousands of individual trusts. October 24, 2007 Tr. 1919:11-23 (Fitzgerald). An individual beneficiary of a commingled trust can receive a full accounting without an accounting of the entire trust, much as banks provide with common trust funds. Id. at 1929:18-24. Furthermore, while each beneficiary is entitled to enforce his or her accounting right, no individual has the right to an accounting of all other beneficiaries’ money. Id. at 1919:24-1920:5. Accordingly, the 1994 Act contemplates an accounting for individual beneficiaries, 25 U.S.C. § 162a, and Interior has spent over $127 million working for years on an individual-by-individual historical accounting, to present individual beneficiaries with transactional data regarding their particular IIM accounts. It is this accounting, and not an aggregate throughput analysis of all funds received by Interior, that is the subject of the 1994 Act and this case. Indeed, the Court twice issued detailed structural injunctions directing how Interior should proceed in accounting for the individual accounts based upon the plan Interior submitted as ordered by the Court. An aggregate throughput analysis of funds including those that have not been posted to IIM accounts thus falls outside the scope of this case. To now require Interior to redirect its focus and perform an aggregate throughput analysis in a matter of months is unreasonable and will not lead to information related to the required historical accounting and is not a duty required by the 1994 Act or any other statute. To the extent the available “throughput” evidence has any relevance, it is only to gauge the magnitude and cost of the total historical accounting project for IIM funds. See e.g., AR 641, July, 2002 Report to Congress at 29. However, a consolidated throughput analysis of all collections would not represent the sum of the individual accountings performed for individual plaintiffs. For example, an aggregate accounting would be greater than the sum of the individual accountings which the Court possesses the jurisdiction to monitor because, among other things, it would encompass accounts maintained for individuals who have long since passed away and have no representatives among the plaintiff class. See Cobell XX at 98 (a statutory right exists for IIM beneficiaries living as of October 25, 1994). It would also include throughput related to previous judgments and settlements which would have to be netted out to preclude double payments. E.g., United States v. Mitchell, 463 U.S. 206 (1983). Therefore, as a measure of equitable restitution or what ought to be “disgorged,” an aggregate throughput analysis is not probative because it merely provides a rough estimate applicable to the entire class – plus a large number of persons outside the class – but not to individual account holders. B. The Court’s Impossibility Holding Does Not Lead To Consideration Of, Or Justify, A Monetary Payment To Plaintiffs Plaintiffs appear to assume that the Court’s conclusion that it will be impossible for Interior to complete the entire historical accounting because of inadequate congressional funding somehow leads directly to monetary relief as “an appropriate remedy.” That assumption is unfounded. Indeed, Plaintiffs have cited no case in which a conclusion of impossibility due to inadequate congressional funding has resulted in the disgorgement of money in an APA case. Rather than a multi-billion dollar monetary award which the 1994 Act never contemplated, the Court’s conclusion of impossibility can lead to only two appropriate outcomes: (1) Interior continues to perform the best accounting practicable with the Court retaining jurisdiction to monitor the agency to assure that it is proceeding as diligently as possible with the appropriations provided by Congress; or (2) the case is dismissed because the complete relief sought is now impossible to receive and, thus, unattainable. Regarding the first outcome, a conclusion of impossibility due to inadequate congressional appropriations does not automatically eliminate a federal agency’s duty to perform its statutory obligations. See Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) (although impossibility due to inadequate resources serves as a defense against a charge of contempt, it does not relieve a federal agency from performing its statutory obligations); cf. Cobell V, 91 F. Supp. 2d. at 48 (lack of congressional funding cannot impair the trustee- delegates’ fiduciary duties). Here, the Court of Appeals’ determination in Cobell VI that the 1994 Act obligates Interior to perform a historical accounting is still the law of the case. 240 F.3d at 1102-04. In addition, Congress has continued to appropriate millions of dollars for the preparation of individual historical accountings.17 See Cobell XX, 532 F. Supp. 2d at 58. Furthermore, the Court’s January 30 opinion did not order Interior to cease performing its historical accounting work. Because its obligation to conduct the accounting has not ceased, Interior is still performing historical accounting work. While Interior continues to perform its accounting work Congress will determine whether to dedicate appropriations to cover the cost. The Court assumed that Congress would not appropriate such funds. However, it is up to Congress to decide how to react to the Court’s conclusions. In re Complaint of Nautilus Motor Tank Co., 85 F.3d 105, 113 n.10 (3rd Cir. 1996) (“[O]ur role is not to anticipate legislative developments.”). As of now, the historical accounting – not monetary relief – is the only remedy contemplated by 17 Defendants respectfully disagree with the Court’s conclusion that the appropriation bills that have followed passage of the 1994 Act have not “amended” the requirements of the 1994 Act. Cobell XX at 102. First, without even considering whether the bills could be viewed as implicitly modifying the 1994 Act, the Court of Appeals has made it clear that a determination as to what the original 1994 Act requires cannot be made without consideration of subsequent appropriation bills because the appropriations “unequivocally control what may be spent on historical-accounting activities during the period of their applicability.” Cobell v. Norton, 428 F.3d 1070, 1075 (D.C. Cir. 2005). Second, where the vitality of a statute, here the 1994 Act, depends on subsequent appropriations bills, the appropriations bills can be viewed as implicitly modifying the statute. Friends of the Earth v. Armstrong, 485 F.2d 1, 7-8 (10th Cir. 1973). Congress and available to Plaintiffs under the 1994 Act.18 The second possible outcome, dismissal of the case, is an unavoidable result of the Court’s conclusion that the historical accounting required by law is impossible. As explained above, the only remedy available to Plaintiffs is the historical accounting. If the Court’s conclusion of impossibility is correct, Plaintiffs’ only live claim has been rendered unattainable. Dismissal would, therefore, be warranted. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), citing 5A Wright & Miller, Federal Practice and Procedure § 1357, at 347-48 (2d ed. 1990) (“dismissal is appropriate where the allegations contradict the claim asserted”); see also In re Barr Lab., Inc., 930 F.2d 72 (D.C. Cir. 1991) (writ of mandamus denied where agency’s inadequate resources led to Congress’ goals being unfulfilled and the court did not have the power to remedy those resource problems); accord Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000) (It is “possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible.”). C. The Doctrine Of Laches And The Statute Of Limitations Bar Claims For Equitable Restitution And Disgorgement Plaintiffs’ new claim for equitable restitution and disgorgement relies upon an aggregate throughput analysis of funds dating back more than a century to the beginning of the earliest IIM accounts, together with an assertion of repudiation, but these very assertions raise a bar to the relief under the doctrine of laches, as well as the applicable statute of limitations. Laches applies where a plaintiff has unfairly and prejudicially delayed bringing a claim. 18 Plaintiffs have been urging the Court to grant equitable monetary relief since 2003, but neither this Court nor the D.C. Circuit has wavered in holding that the accounting is the “ultimate relief sought in this case.” Cobell XVIII, 455 F.3d at 314-15. CarrAmerica Realty Corp. v. Kaidanow, 321 F.3d 165, 171 (D.C. Cir. 2003). The rationale for this defense is settled: As claims become increasingly stale, pertinent evidence becomes lost; equitable boundaries blur as defendants invest capital and labor into their claimed property; and plaintiffs gain the unfair advantage of hindsight, while defendants suffer the disadvantage of an uncertain future outcome. Id. (quoting NAACP v. NAACP Legal Def. & Educ. Fund, Inc., 753 F.2d 131, 137 (D.C. Cir. 1985)). That rationale is especially applicable here. Plaintiffs, after years of disclaiming anything but an accounting, now demand at least $58 billion in monetary relief divorced from any accounting. This claim comes after nearly twelve years of litigation and millions of tax dollars appropriated and spent to conduct historical accountings and prepare statements of account for IIM account holders to address Plaintiffs’ original demand for IIM accountings. The record in this case is replete with allegations of the government’s failure to render full statements of account to IIM account holders. Plaintiffs accordingly elected over a decade ago to forego monetary relief in favor of injunctive relief seeking improvements in individual accounts administration and individual accountings for all class members. The Court approved the injunctive-relief-only limitation and the government relied upon it. Plaintiffs’ current, cumulative remedy, however, presumes a duty existed to keep meticulous records of the gross flow of funds through the entire IIM system from the first day that IIM flowed to account holders. If account holders or a class thereof believed that their funds were wrongfully diverted (or their lands were wrongfully alienated) on a wholesale basis, claims could have been brought many years ago, and Interior could have assembled records to defend against such a macro-level claim. It certainly is too late now to assert such a claim. The unfairness of Plaintiffs’ mass claim and the prejudice to Defendants are apparent. Interior maintained a decentralized record keeping system for decades, a fact presumably known to Plaintiffs. But now, Plaintiffs demand a cumulative statement of transactions. Had Plaintiffs provided timely notice of their most recent theory, Interior’s recordkeeping practices might have been modified decades ago. Just since the filing of this action, Interior has spent over $127 million and years collecting, coding, imaging, and utilizing documents containing transactional information regarding the accounts of individual Indians, in an effort to reconcile individual transactions within their accounts. Interior has not engaged, until very recently, in an examination of aggregate throughput numbers regarding the overall funds collected. Different documents could have been searched, and different data could have been compiled and analyzed. After over eleven years of litigation (much less the decades that preceded the filing of this action), it is difficult to assess the extent of the harm more clearly. What is clear, however, is that to have less than a year to collect throughput data on an aggregate basis is prejudicial to Defendants’ defense of this monetary claim. Defendants are now left to refocus their efforts and accounting resources on the paradigm shift precipitated by Plaintiffs’ mass restitution and disgorgement claim, while still performing their statutory duty to account, which would hand to Plaintiffs the “unfair advantage of hindsight.” CarrAmerica Realty Corp., 321 F.3d at 171. Indeed, Plaintiffs now argue that it is up to Defendants to prove the reasonableness of each and every transaction, including the disposition of real property, completed over more than a century. Pls. Mem. at 22. Laches is meant to prevent such unfairness and should, therefore, bar Plaintiffs’ monetary claim. In addition, the Court earlier in this case denied Defendants’ motions to dismiss and for partial summary judgment, which were based upon the argument that Plaintiffs’ claims were barred by the statute of limitations and the doctrine of laches. In rejecting those arguments, the Court ruled that laches was inapplicable and the statute of limitations could not run because Plaintiffs did not allege in their complaint, nor did Defendants establish, that Defendants had repudiated their trust obligations. Cobell v. Norton, 260 F. Supp. 2d 98, 108-10 (D.D.C. 2003); Cobell I, 30 F. Supp. 2d at 45. Plaintiffs now contend, as discussed below, that Defendants repudiated their duty to account. E.g., Pls. Mem. at 1, 13. Should the Court agree that Defendants repudiated their accounting duty and also determine that this somehow constitutes repudiation of the trust, the doctrine of laches would bar Plaintiffs’ claims pursuant to the prior rulings of this Court. Plaintiffs do not identify when the alleged repudiation took place. However, because Plaintiffs appear to base their repudiation claim clearly upon the absence of a comprehensive historical accounting, the claimed repudiation would have occurred decades ago. Plaintiffs’ assertion that there has been a repudiation and their new theory of liability revive the statute of limitations defense as another basis on which to conclude that their new remedy is prohibited because the claim is stale, as a matter of law. This Court has considered the limitation bar in deciding a summary judgment motion Defendants asserted prior to the Phase 1.5 trial in early 2003. Cobell v. Norton, 260 F. Supp. 2d 98 (D.D.C. 2003). There the Court stated that “[b]ecause plaintiffs have alleged claims for relief against the United States, their claims are barred by the statute of limitations if they were not brought within six years after their right of action accrued.” Id. at 103. This determination rests on the limitations provision in 28 U.S.C. § 2401(a), and the Court, therefore, recognized that the “key issue thus becomes whether plaintiffs’ claims have ‘accrued’ for purposes of 28 U.S.C. § 2401(a).” Id. at 104. The Court concluded, however, that the statute did not begin to run until the trustee has repudiated the trust. Id. at 107. The Court found no basis for finding repudiation, and hence, a limitation bar, at the summary judgment stage. Now, however, Plaintiff concede the matter of repudiation, which substantially alters the circumstances under which the Court previously examined the limitations question. As a result, any monetary remedy must be correspondingly limited to six years from the date by which Plaintiffs knew or should have known of the alleged breaches of trust on which the new money remedy is based.19 III. Plaintiffs Cannot Pursue Monetary Relief On Behalf Of The Certified Class The class representatives urge that an unprecedented election be approved by the Court – on behalf of hundreds of thousands of IIM account holders – effectively forcing these individuals to forego their accounting right as defined by the Court to instead pursue an alternate claim for money. Even more striking is Plaintiffs’ suggestion that such a monumental surrender of the accounting rights be ordered, without even letting class members have a say in how such a decision would affect them or what benefit they might receive in this “bargain,” for as the class is certified, all class members will be involuntarily bound to the class outcome. Partly because of these serious ramifications, the rules governing class actions prohibit the class remedy Plaintiffs seek. Plaintiffs’ effort to couch the multi-billion dollar monetary claim in the fiction of an 19 At this juncture, Defendants accept the repudiation requirement as law of the case but respectfully note their continued belief that repudiation need not occur for the statute to run. equitable recovery does not alter the hard truth that such a monetary remedy is not available in this class action. This case is certified to proceed as a class action under Federal Rule of Civil Procedure 23(b)(1)(A) and (b)(2). Under these provisions, Plaintiffs are limited to common declarative or injunctive relief. As the D.C. Circuit recently observed, “[a] court may certify a class pursuant to Rule 23(b)(2) only when ‘the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.’” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir. 2006) (quoting Fed. R. Civ. P. 23(b)(2)). Rule 23(b)(1)(A) has a similarly limited focus, and Plaintiffs identify no lesser standard under that subdivision for the remedy they seek.20 To the extent Plaintiffs now abandon their remedy of a common order for specific performance of an accounting and pursue a substitute remedy involving the recovery of money, their new remedy is unavailable to this class. It makes no difference whe