Did the Ninth Circuit err in construing a statutory provision to exempt self-determination contracts from whistleblower protections?

QUESTIONS PRESENTED Several provisions of the Indian Self-Determination and Education Assistance Act! (“ISDEAA”) were amended in 1988 to foreclose the United States Bureau of Indian Affairs (“BIA”) from engaging in the practice of the “{ijnappropriate application of federal procurement laws and acquisition regulations to selfdetermination contracts”2. To affect these purposes, Congress added provisions exempting “selfdetermination contracts” entered into pursuant to the ISDEAA from “the Office of Federal Procurement Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and [the] Federal acquisition regulations promulgated thereunder’, Additionally, Congress added a : definition of self-determination contracts that was ; intended to clarify “self-determination contracts are not procurement contracts, as defined by the Federal Grant and Cooperative Agreement Act of 19774, and the system of federal acquisition regulations contained in Title 41 of the Code of Federal Regulations should not apply to self-determination contracts.”5 The fundamental statutory interpretation question underlying this petition involves what effect a subsequent “technical” change to the language of exemption provisions that is intended “to conform the 1975 language with the 1988 Amendments” have on the scope of Federal laws that self-determination contracts are exempted from. Moreover, did Congress intend this technical change to authorize the BIA to exclude the application of any Federal law conceivably related to “contracts” from _ self-determination contracts, including an entire positive law title of the : United States Code, regardless of their subject matter? Is the presence of the term “contract” in both the exemption provision and the name of a Title of the United States Code a sufficient basis to overlook the complete absence of evidence Congress contemplated 1 Public Law No. 93-638, 88 Stat. 2203 (January 4, 1975). 2 See Senate Report 100-274, December 15, 1987) Pg. 7. 3 Public Law No. 100-472, 102 Stat. 2291 (October 5, 1988). §204(c) 4 Pub. L. No. 95-244, 92 Stat. 3 (Feb. 3, 1978) 5 Senate Report 100-274, (December 15, 1987) Pg. 18. 6 Senate Report 103-374 (September 12, 1994) Pg. 6. 7 Id. this technical change to vastly expand the scope of Federal laws precluded by the exemption provisions? The precedence of this Court and well-established principles of statutory construction would readily lead one to conclude the answer to be no. However, an undivided panel of the United States Court of Appeals for the Ninth Circuit upheld a decision by the BIA Director to deny Mr. Kent’s claim for relief under 41 U.S.C. § 4712(c) based upon such an interpretation after applying the arbitrary and capricious standard of review under the Administrative Procedures Act.8 The questions presented are: 1. Did the United States Court of Appeals for the Ninth Circuit err in construing 25 U.S.C. § 5324(a)(1) to exempt self-determination contracts from the whistleblower protections of 41 U.S.C. § 4712? 2. Is it permissible for a Federal Court to ignore the plain text of the Federal statute granting it jurisdiction to review a case in favor of electing to apply an interpretive process that both begins and affords primacy to the statutory provisions of a related but ultimately irrelevant and separate statute? 8. Does ambiguity in amendatory statutory language implicitly authorize Federal courts and agencies to broadly expand the scope of an explicitly defined statutory exemption beyond its originally intended purpose where Congress has not expressed any intent to do so. 85 U.S.C. § 706(2)