Southern Ute Indian Tribe v. Leavitt

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 4, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

SOUTHERN UTE INDIAN TRIBE,

Plaintiff - Appellant,
No. 07-2274
v.

MICHAEL O. LEAVITT, Secretary of
the United States Department of
Health and Human Services;
RICHARD H. CARMONA, Surgeon
General of the United States;
CHARLES W. GRIM, Assistant
Surgeon General and Director of the
Indian Health Service; JAMES L.
TOYA, Director, Albuquerque Area
Office of the Indian Health Service;
UNITED STATES INDIAN HEALTH
SERVICE; UNITED STATES
PUBLIC HEALTH SERVICE;
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES,

Defendants - Appellees.

NATIONAL CONGRESS OF
AMERICAN INDIANS,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
 (D.C. No. 1:05-CV-00988-WJ-LAM)

Steven Boos, Maynes, Bradford Shipps & Sheftel, Durango, Colorado (with Monte
Tyler Mills, Southern Ute Indian Tribe Legal Department, on the briefs) for
Plaintiff-Appellant.

John S. Koppel (Gregory G. Katsas, Acting Assistant Attorney General, Gregory J.
Fouratt, United States Attorney, and Barbara C. Biddle and Jeffrica Jenkins Lee,
Attorneys, Appellate Staff, on the brief) Department of Justice, Washington, D.C.,
for Defendants-Appellees.

Lloyd B. Miller and Hilary V. Martin, Sonosky, Chambers, Sachse, Miller &
Munson, LLP, Anchorage, Alaska, filed an amicus curiae brief for the National
Congress of American Indians is support of Plaintiff-Appellant.

Before HENRY, Chief Judge, TACHA and MURPHY, Circuit Judges.

HENRY, Chief Judge.

In litigation arising from the Secretary of Health and Human Services’s

(“HHS”) decision not to enter into a self-determination contract with the Southern

Ute Indian Tribe, the district court issued two operative orders: the first order

determined that the HHS decision was unlawful, granted summary judgment to the

Tribe, and ordered the Tribe to prepare a form of an order for injunctive relief for

HHS approval. The parties could not reach an agreement, which resulted in

continued litigation and culminated in the district court’s second order, which

found in favor of the HHS approach as to the start date of the contract and to

specifics regarding funding of the self-determination contract’s ancillary costs.

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The Tribe appeals from this second order. HHS argues that the second order is not

a final judgment on the merits, depriving this court of jurisdiction, and we agree.

I. Background

A. The Indian Self-Determination and Education Assistance Act Reflects
Congress’s Commitment to Tribal Self-Determination.

In 1975, Congress enacted the Indian Self-Determination and Education

Assistance Act, 25 U.S.C. § 450 et seq. (“ISDA”), in large part to strengthen

“collaborative relationships” with Native American tribes. The ISDA, as

amended, allows Native American tribes to enter into contracts with the Secretary

of HHS, and under these contracts, the tribes themselves, rather than HHS, provide

health service programs to their members. Should a tribe wish to control its

programs, the ISDA essentially directs the Secretary of the Interior and the

Secretary of HHS, upon the request of an Indian tribe, to turn over the direct

operation of its federal Indian programs to that tribe. Once a tribe requests control

of its programs, HHS and the tribe enter into a “self-determination contract,”

which the statute specifies must incorporate the provisions of a mandatory model

contract included in the text of the ISDA. In return, HHS agrees to reimburse the

tribes for administrative expenses and overhead costs called “contract support

costs” incurred in the provision of these services. See also 25 U.S.C. §

450j-1(a)(2)-(3).

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 Under Title I of the ISDA, tribes are entitled to enter into these contracts,

defined as contracts “for the planning, conduct and administration of programs or

services which are otherwise provided to Indian tribes and their members pursuant

to Federal law.” 25 U.S.C. § 450b(j). The government must enter into

self-determination contracts allowing tribal organizations to plan, conduct, and

administer certain federal programs, including programs “for the benefit of Indians

because of their status as Indians.” Id. § 450f(a)(1)(E).

HHS acted upon Congress’s express wish to transfer responsibility for the

administration and management of these programs and services to the tribe:

The Congress declares its commitment to the maintenance of the federal
secretary’s unique and continuing relationship with and responsibility to
the Indian people through the establishment of a meaningful Indian
self-determination policy which will permit an orderly transition from
federal domination of programs for and services to Indians to effective
and meaningful participation by the Indian people in the planning,
conduct, and administration of those programs and services.

Pub. L. No. 93-638, § 3(b), 88 Stat. 2203.

The Indian Health Service (“IHS”) is the primary federal health care

provider for tribes and is the major source of tribal self-determination contracts,

the type at issue here. 1

1
According to IHS’s Year 2008 Profile,

IHS services are administered through a system of 12 Area offices and
163 IHS and tribally managed service units. . . . There are 73 . . .
compacts, funded through 94 Funding Agreements, totaling over $1
billion. These compacts represent 323 Tribes, more than half of all the
(continued...)

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B. Contract Support Costs Include a Variety of Indirect Administrative Costs.

Contract support costs generally encompass indirect administrative costs,

such as special auditing or other financial management costs, 25 U.S.C. §

450j-1(a)(3)(A)(ii); direct costs, such as Workers’ Compensation Insurance, §

450j-1(a)(3)(A)(i); and certain startup costs, § 450j-1(a)(5). Pueblo of Zuni v.

United States, 243 F.R.D. 436, 440 (D.N.M. 2007). Most contract support costs

are indirect costs “generally calculated by applying an ‘indirect cost rate’ to the

amount of funds otherwise payable to the tribe.” Cherokee Nation of Okla. v.

Leavitt, 543 U.S. 631, 635 (2005). “Funding of indirect contract support costs is

based on a variety of factors, including specific terms of each negotiated ISDA

contract, each tribe’s annual indirect cost rate, the amount of funding made

available by Congress in the annual IHS appropriation and IHS policies and

1
(...continued)
federally recognized Tribes. There are also approximately 238 Tribes
and tribal organizations that contract under Title I, with a total funding
amount of $545 million. Overall, approximately half of the IHS budget
authority appropriation is administered by Tribes, primarily through
Self-Determination contracts or Self-Governance compacts.

There are 34 urban programs, ranging from community health to
comprehensive primary health care services. There are 15 tribal
hospitals, 254 tribal health centers, 166 tribal Alaska village clinics,
112 health stations, and 18 tribal school health centers.

http://info.ihs.gov/Profile08.asp.

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procedures for the calculation and distribution of indirect contract support costs.”

Pueblo of Zuni, 243 F.R.D. at 440.

C. The HHS Procedure upon Receipt of a Contract Proposal

Upon receipt of a contract proposal, HHS must review and approve or

decline the proposal within ninety-days; failure to act within the ninety-day

period results in the award of a contract by operation of law. 25 U.S.C. § 450j-

1(a)(2). HHS may decline a proposal for one of five specific reasons listed in 25

U.S.C. § 450f(a)(2): HHS may (1) consider the program’s service to be

unsatisfactory; (2) determine that the proposal does not assure adequate protection

of trust resources; (3) conclude that the proposed contract cannot properly

complete or maintain the proposed project; (4) calculate that the contract’s

proposed funding level exceeds the total amount of funds to be paid under the

contract under 25 U.S.C. §450j-1(a); or (5) conclude that the proposal’s services

or functions are beyond the scope of programs that the contractor may lawfully

engage in. If the HHS declines a proposal, a tribe may file an appeal through the

administrative process or initiate an action in federal court. 25 U.S.C. § 450f(b).

The leading Supreme Court case involving the ISDA is Cherokee Nation v.

Leavitt, 543 U.S. 631 (2005), which provides much of the backdrop for the

current litigation. In Cherokee Nation, the government entered into ISDA

contracts with the Cherokee Nation and the Shoshone-Paiute Tribes of the Duck

Valley Reservation (collectively, “the Tribes”). In two separate actions, the

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Tribes submitted claims for fiscal years 1994 through 1997. After HHS refused

to pay, the Tribes sued for breach of contract. In one case, this court upheld the

HHS decision, and in the second action, the Court of Appeals for the Federal

Circuit upheld a Board of Contract Claims decision favoring the Cherokee Nation

Tribe. 543 U.S. at 636-37. The Supreme Court consolidated the appeals.

In Cherokee Nation, the government promised to pay, and, citing a lack of

sufficient funds, simply failed to pay, the costs at issue. Between 1994 and 1997,

Congress annually appropriated $1.277 billion to $1.419 billion to the IHS to

execute the ISDA. 543 U.S. at 637. Justice Breyer, writing for the majority,

recognized that these amounts far exceeded the amounts that the Tribes claimed

Id. The congressional appropriations were in lump-sum amounts, without any

statutory restrictions applicable to these claims. Id. at 637-38.

Justice Breyer explained that the government’s ISDA contracts with the

Tribes are akin to regular government procurement contracts. In the case of

normal procurement contracts, when Congress appropriates sufficient legally

unrestricted funds to pay contracts at issue as part of a lump-sum appropriation,

the government is legally bound to pay those claims. Id. at 636. “[T]he

Government normally cannot back out of a promise to pay on grounds of

‘insufficient appropriations,’ even if the contract uses language such as ‘subject

to the availability of appropriations,’ and even if an agency’s total lump-sum

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appropriation is insufficient to pay all the contracts the agency has made.” Id. at

637.

The Court rejected the government’s attempt to avoid its obligations by

arguing the self-determination contracts were “unique” and subject to “special

treatment.” Id. at 638-39. The Court recognized that many ISDA contracts

include the phrase, “subject to the availability of appropriations,” but noted that

the phrase’s purpose is not to give the government a way out of the contract, but

rather to secure contracts that the parties negotiate in advance of Congressional

appropriation, which, in pertinent years for the Tribes, Congress did appropriate.

Cherokee Nation, 543 U.S. at 642 (quoting 25 U.S.C. § 450j-1(b)).

Since 1998, Congress has adopted a revised appropriation structure that is

no longer a simple lump-sum appropriation with recommendations on the amount

that IHS should expend on contract support costs. Beginning with 1998’s fiscal

year appropriation, Congress explicitly limited the amount that IHS could expend

on contract support costs by imposing a “cap” directly in the appropriations act.

See Pueblo of Zuni, 243 F.R.D. at 440. The Cherokee Nation Court did not

address what liability the government might incur when there is a “capped

appropriation for the total amount of funds owed to all ISDA contracts.” Id.

Finally, in addition to the availability of appropriations, HHS is not required to

reduce funding for programs, projects, or activities serving a tribe to make funds

available to another tribe or tribal organization under this Act. 25 U.S.C. §

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450j-1(b). We now apply this statutory and regulatory scheme to the facts of this

case.

D. Procedural Background

Beginning on January 25, 2005, with the Tribe’s submission of a proposal

pursuant to 25 U.S.C. § 450f to contract for the administration of the Southern

Ute Health Center, the parties engaged in correspondence, and subsequent

negotiations, regarding the proposal. Over the course of the next eight months,

the Tribe granted three extensions of the mandatory ninety-day term of decision

to the IHS.

In the negotiations, HHS noted that there was a cap on funds that IHS

could use to cover contract support costs, and that the HHS “appropriation does

not include any funds for new or expanded program assumption by Indian

Tribes.” Rec. vol. II, doc. 14, at 303. HHS argued that language must be inserted

into any new contract stating there are no contract support cost funds available for

the Fiscal Year 2005. Id. at 303-04. Congress had “appropriated $263,638,000 to

IHS to pay contract support costs and stated that money expended for contract

support costs was not to exceed this amount. This amount does not represent

sufficient money to pay contract support costs for any new or expanded program

assumption under the [Act].” Id. at 293.

The Tribe in turn, refused to agree to the IHS’s required additional

restrictive language. The Tribe indicated that it was able to implement the

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proposal for the Southern Ute Health Center “without the [contract support cost]

funding, but would not waive the statutory right to the funding.” Id. at 304.

On August 15, 2005, defendant director of the area, James L. Toya, sent a

letter to the Tribe declining its proposal. The letter noted the five declination

criteria from the ISDA, 25 U.S.C. § 450f(a)(2)(A) through (E) and lists (A), (C),

(D), and (E) as the bases for declination. As the district court noted,

in explaining this declination, [Mr.] Toya noted that [the Tribe] was
refusing to recognize in the contract that [contract support costs are]
not available and that this has the effect of meeting criteria (C), (D),
and (E). [Mr.] Toya then concluded that criteria (A) was met because
[the Tribe] had not shown it would be able to operate and maintain the
programs and provide satisfactory services without [contract support
cost] funds. The letter then lists an additional twelve reasons the
proposal would have been declined even if [the Tribe] had agreed to the
[contract support costs]. There is no evidence in the record that any of
these twelve issues had been discussed with [the Tribe] during
negotiations.

Rec. vol. II, doc. 14, at 304 (emphasis supplied).

After sending a response letter declaring the declination unlawful, in

September 2005, the Tribe filed a complaint for damages and preliminary and

permanent injunctive relief in federal court, which also alleged a violation of the

Administrative Procedure Act. HHS sought summary judgment, and the parties

agreed to consolidate the motion for preliminary injunction with the merits of the

case. The district court treated the parties’ respective motions as cross-motions

for summary judgment.

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 The district court rejected the HHS declination, noting that a lack of

sufficient congressional appropriations does not supplant the agency’s statutory

obligations and concluding that HHS could not condition its approval of the

contract based on language absent from the statutory model agreement. Further,

the district court recognized that the model agreement, required to be part of a

contract, also contains a provision making the contracts “subject to the

availability of appropriations,” which should allay the HHS concerns. 25 U.S.C.

§ 450l(c); Rec. vol. II, doc. 14, at 308.

The district court thus rejected the HHS reasons for declining the contract.

The district court granted summary judgment to the Tribe on its first two claims.

The court ordered the Tribe to prepare a draft order of injunctive relief for the

parties to sign. If the parties could not agree as to the order, the Tribe could seek

a presentment hearing. Rec. vol. II, doc. 14, at 314. The district court noted that

the Tribe’s Administrative Procedure Act claim and damages were “remaining

issues.” Id. at 315.

The court acknowledged that “[HHS] is between a rock and a hard place if

it has no discretion to decline contracts, no discretion to pay less than full

[contract support costs] on all outstanding contracts, and receives inadequate

appropriations to meet its obligations.” Id. at 312-13. The district court alluded

to the Supreme Court’s suggestions in Cherokee Nation, that the government’s

obligation to pay contract support costs may be different when there are no

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unrestricted funds available to pay them. Id. (citing 543 U.S. 631, 643).

However, the Court also noted that the government must refrain from “making

less essential contractual commitments” and “protect funds needed for more

essential purposes” so as to avoid making commitments it cannot fulfill. 543 U.S.

at 642. But “[t]he [g]overnment cannot speculate that the Supreme Court will

require it to pay obligations for which there are no unrestricted funds available

and the Government cannot . . . engage in self-help statutory amendment to avoid

the anticipated result of such a decision.” Rec. vol. II, doc. 14, at 313.

After the grant of summary judgment, the parties could only partially agree

on a form of order for injunctive relief. The Tribe submitted a contract

containing certain statutory model language, but refused to include the HHS

proposed language that HHS currently could not pay contract support costs. The

Tribe submitted a motion requesting a presentment hearing; it also indicated the

contract’s starting date would be October 1, 2005, which was the date originally

proposed, according to the Tribe. Rec. vol. II, doc. 15.

HHS filed a motion for clarification and suggested language that “would

reflect that defendants currently owe the tribe $0 in contract support costs (on the

basis that the tribe has not incurred any costs, and because no funds are available

to be dispersed); that the [contract support costs] amount reflecting plaintiff’s

required [contract support costs] will be calculated; but in view of the

congressional earmark for [contract support costs], the amount will be placed on

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the shortfall list for payment if and when funding becomes available.” Govt’s

Jurisd. Br. at 22 (quoting Rec. vol. II, doc. 19, at 394). As to the start date, HHS

argued the October 1, 2005, start date made little sense as the Tribe had provided

no health care services as of that date, and would not incur costs until (at the

earliest) the contract’s execution.

In its Second Order, the district court sided with HHS. The court

determined that the ISDA did not prohibit that HHS version of the terms for the

annual funding agreement. The Tribe would be paid $0 now, would be placed on

the “shortfall list,” and would be paid contract support costs if and when funds

became available. Id. at 394. The court noted that the omission of such language

would compel HHS to enter a contract that it must immediately breach, “opening

the door to unwinnable – and perhaps frivolous – breach of contract claims.” Id.

at 397.

The court denied the Tribe’s motion for a presentment hearing, granted the

HHS motion for clarification, and ordered that the following occur:

(1) the Parties shall meet and resume obligations for entering a self-
determination cont[r]act which includes a start date of the date the
Tribe undertakes operation of the Southern Ute Health Clinic;
(2) the contract will include [the Secretary’s] version of the Annual
Funding Agreement language which is described [in this Order];
(3) the Southern Ute Indian Tribe will be placed immediately on [the
Secretary’s] shortfall list, which [the Secretary has] represented it will
do, and which [the Secretary] represent[s] allows payment on the basis
of need;

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 (4) Within six (6) weeks of the date of this [Order], parties shall
complete negotiations and submit a form of order for injunctive relief
to the court, . . . .
And (5) that within the six week period allowed for renegotiating the
self-determination contract, parties shall advise the court regarding the
status of [the Tribe’s] Third Count in the Complaint, alleging a
violation of the Administrative Procedure[] Act.

Rec. vol. II, doc. 19, at 398-99. The Tribe determined it would not participate in

negotiations and filed this appeal.

II. Discussion

Before we can turn to the merits, we must determine whether we have

jurisdiction to hear the Tribe’s appeal. See Tri-State Generation & Transmission

Ass’n, Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1351 (10th Cir. 1989).

Generally, we are limited to consideration of final orders that are accompanied by

the entry of judgment. See id.; 28 U.S.C. § 1291.

However, § 1292(a)(1) provides that courts of appeal shall have jurisdiction

to hear matters arising from orders “granting, continuing, modifying, refusing, or

dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C.

§ 1292(a)(1). The district court’s Second Order is clearly not a final order that

resolves the case. Thus, we must examine it more closely to determine whether it

constitutes an order granting an injunction that is appealable under § 1292(a)(1).

As to this issue, the Tribe argues that the district court’s Second Order (a)

expressly granted injunctive relief; (b) had the practical effect of granting

injunctive relief; and (c) modified previously ordered injunctive relief. HHS

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 disagrees as to each point. We hold that the Second Order neither expressly

granted relief, nor had the practical effect of granting injunctive relief, nor

modified the court’s First Order. We are therefore without jurisdiction to

consider the Tribe’s premature appeal.

A. The Second Order Did Not Expressly Grant Injunctive Relief.

The Tribe argues that the district court’s Second Order expressly granted

injunctive relief because it compelled the parties to act. To recap, in the First

Order, the district court found that HHS could not shirk its obligation to enter into

the self-determination contract. In so doing, the district court combined the

injunctive relief and its review of the merits, and granted summary judgment to

the Tribe, at least in part (on claims 1 and 2, that (1) HHS had an obligation to

enter the contract, and (2) HHS wrongfully declined the contract). 2 The Tribe

was not aggrieved by the First Order, and thus could not (and did not) appeal

from it. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980).

After the issuance of the First Order, the parties could not agree to the form

of injunctive relief, which the district court directed the parties to draft.

According to the Tribe, the Second Order compelled obedience under the threat of

contempt because it enjoined the parties to meet and negotiate a contract with a

2
The court also noted that the Tribe’s third claim, which involved an
Administrative Procedure Act violation claim, the Tribe asserted that the
requirement that any IHS contract indicate that contract support costs were not
available, was deemed a “remaining issue[],” along with damages. Rec. vol. II,
doc. 14, at 315.

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set start date (the date the Tribe begins to operate the clinic) and with its

prescribed contract support costs language. Thus, the Tribe maintains, the Second

Order compelled the parties to complete negotiations within six weeks.

HHS responds that the district court’s Second Order addressed only the

process of litigation, which is not in and of itself an appealable order. A

non-final order generally is not subject to interlocutory appeal under § 1292(a)(1),

if it is not directed to the merits of the underlying action. See, e.g., Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988) (“An order by a

federal court that relates only to the conduct or progress of litigation before that

court ordinarily is not considered an injunction and therefore is not appealable

under § 1292(a)(1).”); Lewis v. Bloomsburg Mills, Inc., 608 F.2d 971, 973 (4th

Cir. 1979) (holding that where “[t]he district court’s order . . . regulates the

conduct of discovery” and, thus, “is merely a step in the litigation process and is

in no way directed to the merits of the underlying action[,] . . . the order is not

appealable under § 1292(a)(1)”), overruled in part on other grounds, 773 F.3d

561 (4th Cir. 1985).

We agree with HHS that the Seventh Circuit’s decision in Mercer v.

Magnant, 40 F.3d 893, 896 (7th Cir. 1994), is compelling. There, the plaintiffs

sought a declaratory judgment and an injunction, and the court filed an order

stating the plaintiffs were entitled to relief, but did not enter a judgment

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specifying that relief. The court entered an order to “do something” and to

“proceed with all deliberate speed.” Id. The court explained that:

although it may be characterized as an order to do something, it is no
more an “injunction” than is an order to turn over papers in discovery
or submit to a physical examination. Only orders awarding relief on
the merits, or effectively foreclosing some element of relief, may be
appealed as injunctions.

Id. (emphasis supplied).

The Tribe was obviously unsatisfied with the relief the district court

ordered in the Second Order, and was discouraged by the multi-year unsuccessful

negotiation process it had undergone with HHS, but its dissatisfaction cannot

transform the Second Order into one granting express injunctive relief.

Accordingly, we hold that the court’s Second Order was not a form of express

injunctive relief under 28 U.S.C. § 1292(a)(1).

B. The Second Order Did Not Have the Practical Effect of Granting
Injunctive Relief.

Next, the Tribe argues that the district court’s First Order, which granted

summary judgment and directed injunctive relief, together with the Second Order,

had the practical effect of granting injunctive relief. The Tribe maintains that the

Second Order specified that the parties enter into the self-determination contract

through specific means. In addition, the Second Order declared a start date and a

contract support costs provision to which the Tribe must agree. Thus, under this

theory, the Second Order is enforceable by contempt, and in addition, the district

court’s orders constituted a decision on the merits – the court ordered the parties

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to enter into a self-determination contract containing certain terms. But

piecemeal orders like this one are not generally appealable unless they produce

irreparable consequences requiring immediate appeal. See Boughten v. Cotter

Corp., 10 F.3d 746, 748 (10th Cir. 1993) (noting “the burden on appellate courts

imposed by fragmentary and piecemeal review of the district court’s myriad

rulings in the course of a typical case”).

“[I]n the case of orders that do not, as a technical matter, grant or refuse an

injunction, but are injunctive in practical effect, or in practical effect deny an

injunction, appealability depends upon the threat of [imminent] serious, perhaps

irrevocable harm.” Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir. 1997)

(quoting 9 James W. Moore, et al., Moore’s Federal Practice ¶ 110.20[1] (2d ed.

1996)) (alterations in original) (internal quotations omitted). “Where a district

court grants partial summary judgment against a plaintiff who has sought

injunctive relief we believe that amounts to a practical denial of injunctive relief,

and thus an interlocutory appeal may be taken pursuant to § 1292(a)(1) only upon

a showing of harm as required by [the Supreme Court in] Carson [v. American

Brands, Inc., 450 U.S. 79 (1981).]” Id. at 570.

In Carson, the Supreme court cautioned:

[F]or an interlocutory order to be immediately appealable under §
1292(a)(1), . . . a litigant must show more than that the order has the
practical effect of refusing an injunction. Because § 1292(a)(1) was
intended to carve out only a limited exception to the final-judgment
rule, we have construed the statute narrowly to ensure that appeal as of
right under § 1292(a)(1) will be available only in circumstances where

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 an appeal will further the statutory purpose of [permitting] litigants to
effectually challenge interlocutory orders of serious, perhaps
irreparable, consequence. Unless a litigant can show that an
interlocutory order of the district court might have a “serious, perhaps
irreparable, consequence,” and that the order can be “effectually
challenged” only by immediate appeal, the general congressional policy
against piecemeal review will preclude interlocutory appeal.

450 U.S. at 84 (emphasis supplied) (internal citation omitted). Thus “[t]o invoke

§ 1292(a)(1) jurisdiction here, the district court’s [Second] Order 1) must have

the practical effect of granting or denying injunctive relief, 2) must be one which

will result in serious or irreparable consequences if executed, and 3) must be a

directive which can be challenged effectively only through immediate appeal.”

United States v. McVeigh, 157 F.3d 813 (10th Cir. 1998); Hutchinson, 105 F.3d at

569.

1. The Tribe Cannot Demonstrate Serious or Irreparable Harm.

Assuming the Tribe is correct that the Second Order has the practical effect

of granting injunctive relief, we must consider the harm to the Tribe. As to

irreparable harm, the Tribe contends that the district court’s Second Order would

force it to forgo the original 2005 contract award, because of the later start date.

In addition, the Tribe is forced to forgo the contract support costs and there is no

guarantee that term of “$0” would be viewed as anything but its voluntary waiver

of the right to those costs. To force the Tribe to be bound by the agreement

would arguably moot any challenge it might raise subsequently, and there is no

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 guarantee that a federal court would have any power to rescind the contract. The

Tribe argues these consequences are both serious and irreparable. 3

As to the Tribe’s argument that it would essentially waive any relief had it

not appealed and entered the contract, we believe the Tribe overstates the case.

As HHS points out, the Tribe could have proposed language stating that the

actual execution of the contract would be suspended subject to the parties’

exercise of their appeal rights. HHS reiterated this position at oral argument and

affirmed that it would not oppose the Tribe’s maintenance of identical challenges

at that time. We hold that any harm the Tribe suffers is reparable and will not

result in serious harm that cannot be compensated.

2. The Second Order is Not a Directive that Can Only be
Challenged by an Immediate Appeal.

Nor, for largely the same reasons, is this Second Order a directive requiring

immediate appeal, because the parties may suspend the execution of the contract

3
We note that the Tribe does not argue that it might suffer incalculable or
serious costs from the now more than three-year deprivation of the self-
determination contract, nor from its alleged inability to administer its own
programs for its member. We remind HHS of its duty to:

make best efforts to remove any obstacles which might hinder Indian
tribes and tribal organizations including obstacles that hinder tribal
autonomy and flexibility in the administration of such programs.

It is the policy of the Secretary that the contractibility of programs
under this Act should be encouraged.

25 C.F.R. § 900.3(1), (11). The HHS actions thus far might be read to violate at
least the spirit of this rule.

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and then exercise their appeal rights. At oral argument, HHS reiterated this point.

Thus, the parties may effectively appeal the Second Order after the district court

finalizes the injunction.

C. The Second Order Clarifies, Rather than Modifies, the First Order.

Finally, as we noted, § 1292(a)(1) allows interlocutory appeal of orders

“granting, continuing, modifying, refusing or dissolving injunctions, or refusing

to dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1). This court

illuminated this exception in Pimentel & Sons Guitar Makers v. Pimentel, 477

F.3d 1151, 1153-54 (10th Cir. 2007). The Pimentel decision looked to the

Seventh Circuit’s test, which “examines whether the court’s order actually

modified the existing injunction or instead . . . , merely clarified or interpreted

the prior injunction. Appellate courts do not have jurisdiction to review a district

court order that merely interprets or clarifies, without modifying, an existing

injunction.” Id. (emphasis supplied).

The Tribe argues that the Second Order changed the terms of the contract

outright and, therefore, changed the terms of the injunctive relief granted in the

First Order. See Rec. vol. II, doc. 19, at 389 (“[The] parties have applied to the

Court for resolution of certain issues which have impeded their ability to comply

with the court’s previous [first] order granting injunctive relief to [the Tribe].”)

(emphasis supplied). The Tribe argues that the legal relationship between the

parties has changed. It claims that the First Order stated that HHS did not have

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“discretion to condition approval of [the Tribe’s] proposal on new contract

language contradicting statutory model language or on [the Tribe’s] waiver of

funding specifically provided [by the ISDA],” id., doc. 14, at 314, while the

Second Order, in contrast, concluded that the HHS proposed language was

“consistent with the statutory requirements of the ISDA or the model agreement

language.” Id. doc. 19, at 398.

Under Pimentel, the benchmark for when an order modifies an injunction is

a high one. “[I]n attempting to discern interpretation from modification, . . . we

should not analyze the injunction and the order in detail. To plunge into the

details would collapse the jurisdictional inquiry into a decision on the merits,

thwarting the purpose of § 1292(a)(1). . . . Consistent with the purposes of §

1292(a)(1), we ask only whether the District Court’s conclusion is a gross or

blatant misinterpretation of the original injunction.” Pimentel, 477 F.3d at

1154-55 (internal quotation marks and citations omitted). The detailed analysis

of both orders requested by the Tribe is inconsistent with this standard of review.

Upon a general review, the First Order directed HHS to enter a contract. It did

not set the amount for contract support costs or the start date. The Second Order,

which fills in these terms, is not a “gross or blatant misinterpretation” of the First

Order. Id. at 1155. Therefore, it does not modify the First Order as that term is

used in § 1292(a)(1).

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 III. CONCLUSION

We empathize with the plight of the Tribe in securing its self-

determination, but, we cannot take jurisdiction where none is to be had. We, like

Congress, 4 acknowledge that the Tribe has a right to its self-determination, and

hope that the parties will come to an agreement quickly. Accordingly, because

we do not have jurisdiction to review the merits of the Tribe’s appeal, we dismiss

the appeal.

4

Congress has declared its commitment to the maintenance of the Federal
Secretary’s unique and continuing relationship with, and responsibility
to, individual Indian tribes and to the Indian people as a whole through
the establishment of a meaningful Indian self-determination policy
which will permit an orderly transition from the Federal domination of
programs for, and services to, Indians to effective and meaningful
participation by the Indian people in the planning, conduct, and
administration of those programs and services. In accordance with this
policy, the United States is committed to supporting and assisting
Indian tribes in the development of strong and stable tribal secretarys,
capable of administering quality programs and developing the
economies of their respective communities.

25 C.F.R. § 900.3(a)(2) (emphasis supplied).

And Congress has a similarly stated policy for HHS:

It is the policy of the Secretary to facilitate the efforts of Indian tribes
and tribal organizations to plan, conduct and administer programs,
functions, services and activities, or portions thereof, which the
Departments are authorized to administer for the benefit of Indians
because of their status as Indians. The Secretary shall make best efforts
to remove any obstacles which might hinder Indian tribes and tribal
organizations including obstacles that hinder tribal autonomy and
flexibility in the administration of such programs.

Id. § 900.3(b) (emphasis supplied).

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