UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FORT MCDERMITT PAIUTE AND
SHOSHONE TRIBE,
Plaintiff,
v. Civil Action No. 17-837 (TJK)
THOMAS E. PRICE et al.,
Defendants.
ORDER
This case, brought under the Indian Self-Determination and Education Assistance Act
(“ISDEAA”), 25 U.S.C. § 5301 et seq., concerns a medical clinic in McDermitt, Nevada, a small
hamlet located in a remote area of the state near the Oregon border. See Pl.’s Br. at 7-8. 1 In
February 2016, the Fort McDermitt Paiute and Shoshone Tribe (the “Tribe”) informed the Indian
Health Service (“IHS”)—an agency within the Department of Health and Human Services
(“HHS”)—that it wished to take over operation of the clinic. AR 58. In March 2016, IHS
announced that it intended to close the clinic. Pl.’s Br. at 9; AR 42-47. The Tribe and IHS
began negotiating a “self-governance compact and funding agreement” pursuant to Title V of
ISDEAA, under which the Tribe would operate the clinic. Pl.’s Br. at 10. The parties were able
to reach agreement in some areas, but not all. On October 13, 2016, the Tribe set forth its
position on five remaining sticking points in a “final offer” submitted pursuant to 25 U.S.C.
§ 5387(b). AR 108-15. IHS responded on November 23, 2016, with a letter (the “Declination
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In deciding the instant motions, the Court has relied on all relevant parts of the record,
including: ECF No. 11 (“AR”); ECF No. 12 (“Supp. AR”); ECF No. 14 (“Pl.’s Br.”); ECF No.
16 (“Defs.’ Br.”); ECF No. 18 (“Pl.’s Reply”); ECF No. 20 (“Defs.’ Reply”). The Court will cite
the transcript of the motions hearing held on September 18, 2018—available for purchase from
the Court Reporter—as the “Oral Arg. Tr.”
Letter”) rejecting the Tribe’s proposal on all five points. AR 130-41. The parties subsequently
resolved three of the five issues through further negotiations. See Pl.’s Br. at 10.
The parties still disagree whether IHS properly rejected two of the Tribe’s proposals
under IDSEAA, which sets out limited grounds on which IHS may do so. First, the parties
dispute whether IHS’s rejection of the Tribe’s requested funding level was proper. IHS asserts
that it properly rejected the request, because the amount of funds the Tribe proposed exceeded
the funding level to which the Tribe was entitled. The Tribe’s final offer requested $1,106,453
in funding (which consisted of $603,842 for the clinic and $502,611 for an emergency medical
services program that the Tribe also operates). AR 112-13. IHS claimed in its Declination
Letter that the Tribe was entitled to no more than $375,533. AR 137-38. Second, the parties
dispute whether IHS properly rejected the Tribe’s proposal to include a provision related to
housing for clinic employees in the funding agreement. AR 109, 132-34. The parties have
cross-moved for summary judgment on these issues. ECF Nos. 14, 16.
For the reasons set forth below, the Court will deny both motions without prejudice as
they relate to the funding issue, and order further proceedings as set forth below. The Court will,
however, enter summary judgment for the Tribe on the employee-housing issue.
A. Standard of Review
As an initial matter, the parties disagree over the relevant standard of review. Defendants
assert that the Court should review its decision in the Declination Letter under the standard
provided by the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Defs.’ Br. at 12.
The Tribe disagrees and seeks de novo review. Pl.’s Br. at 10-12. The Court is persuaded by
opinions holding that ISDEAA requires de novo review of the government’s decision to reject a
“final offer” from a tribe. See, e.g., Redding Rancheria v. Hargan, 296 F. Supp. 3d 256, 265
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(D.D.C. 2017); Manilaq Ass’n v. Burwell, 170 F. Supp. 3d 243, 247 (D.D.C. 2016); Pyramid
Lake Paiute Tribe v. Burwell, 70 F. Supp. 3d 534, 541-42 (D.D.C. 2014).
Therefore, the Court will apply the familiar standard for summary judgment under
Federal Rule of Civil Procedure 56. The Court must grant summary judgment “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriately granted
when, viewing the evidence in the light most favorable to the non-movants and drawing all
reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.”
Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C.
Cir. 2016).
B. Recurring Funding Amount
The more significant of the two remaining disputed issues concerns whether the Tribe’s
final offer proposed recurring funding that exceeded the level to which the Tribe was entitled
from IHS’s “Hospitals & Clinics” budget line. Pl.’s Br. at 13; Defs.’ Br. at 12-13. Both parties
agree that the statute permits IHS to reject the Tribe’s offer to the extent the funding requested
exceeds the amount that Defendant Price, as the head of HHS, “would have otherwise provided
for the operation of the programs or portions thereof.” 25 U.S.C. § 5325(a)(1); see id. § 5385(g)
(incorporating this standard from Title I of ISDEAA into Title V); Pl.’s Br. at 12; Defs.’ Br. at 3-
4. The instant record, however, does not provide clarity about what this amount is.
The problem lies in the fact that the parties have presented the Court with nothing more
than a bare “administrative record” with no supporting testimony. The record consists largely of
correspondence between the Tribe and IHS, along with financial spreadsheets and similar
documents. See AR. It is notably devoid of affidavits or testimony that explain what the
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numbers in these documents mean. 2 These documents, and the numbers in them, lend
themselves to different interpretations. As the Tribe’s counsel aptly noted at oral argument, there
are “a lot of numbers in this record,” and the Tribe itself found the financial information
proffered by IHS “confusing” during the administrative process. Oral Arg. Tr. at 41:6-12.
One could reasonably interpret this record to create genuine issues of material fact about
the funding amounts in dispute. To take a particular example: at oral argument, both parties
discussed a table attached as Exhibit 5 to the Tribe’s October 2016 final offer letter. AR 125.
The table contains budget information for the 2016 fiscal year. See id. The “Hospitals &
Clinics” line shows “expenditures” of $603,842, but a “budgeted allowance” of only $181,778,
resulting in a negative “balance” of $422,064. It is unclear which number may have represented
the amount that HHS intended to spend on the clinic in 2016. The Tribe asserts that the
“expenditures” amount of $603,842 is what HHS would have spent. Oral Arg. Tr. at 39:14-
40:12. Defendants argue, however, that HHS would not have spent more than it had budgeted
(or at least, not from the “Hospitals & Clinics” budget line at issue). Id. at 63:10-22, 65:14-18.
The Court has no affidavits or other testimony to back up either party’s assertion about what this
document means.
Nor is it clear how these numbers line up with the legal issues that the parties have
identified. These issues include whether IHS properly declined to award the Tribe amounts it
had identified as the “tribal share” of the Winnemucca Indian Colony (which has members in the
same general area), as well as whether IHS properly refused to provide the Tribe with certain
2
This may reflect the government’s misconception that this case involves an APA-style
review limited to the administrative record. It does not. See Shoshone-Bannock Tribes of
Fort Hall Reservation v. Shalala, 988 F. Supp. 1306, 1317 (D. Or. 1997) (rejecting proposition
that the ISDEAA provides “nothing more than a record-based, deferential court review of
agencies’ actions”).
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clinic funding derived from “third-party reimbursements.” See Pl.’s Reply at 6-18; Defs.’ Reply
at 5-11. It is unclear how to associate these issues with the figures set forth in particular
documents in the record, or even how they contribute to the overall amount in dispute.
To be sure, at oral argument, both parties represented that there is no genuine issue of fact
regarding the dollar amounts at issue, only issues of law like the ones just described. See Oral
Arg. Tr. at 5:9-21, 57:21-58:10. Nonetheless, the Court needs to know the dollars-and-cents
impact of each such issue. The statute is clear that IHS may reject a tribe’s final offer “in part.”
25 U.S.C. § 5387(b). It further specifies that IHS may reject “one or more . . . funding levels in
such offer.” Id. § 5387(c)(1) (emphasis added). That is, IHS can object to different aspects of
the Tribe’s proposed funding level (as it has here), and those objections may not rise and fall
together. As a result, it is conceivable that the Court could uphold one of IHS’s grounds for
rejecting the Tribe’s proposed funding level, but not another. In that event, the Court would
need to know how to calculate the dollar impact associated with each issue so that it could
fashion appropriate relief. Even more fundamentally, the Court needs to know that each issue it
is deciding actually has a potential dollar impact, lest the Court provide an advisory opinion on
legal issues with no practical consequence.
The parties suggest that they may be able to clarify the record by stipulating to facts that
show the applicable funding amount associated with each legal issue in dispute. See Oral Arg.
Tr. at 60:4-13, 61:10-17. The Court believes that this is a helpful suggestion. However, the
Court cautions the parties that, if they submit a stipulation, it will conclusively establish all facts
it contains for the rest of this litigation. See Christian Legal Soc’y Chapter of Univ. of Cal.,
Hastings Coll. of Law v. Martinez, 561 U.S. 661, 677 (2010). If the parties do not wish this
result, they may instead file a statement of undisputed material facts pursuant to Local Civil Rule
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7(h). In that event, the statement of facts must include “references to the parts of the record
relied on to support the statement.” LCvR 7(h)(1). And because many of the financial
documents contained in the current record are not self-explanatory, any Rule 7(h) statement must
be accompanied by an affidavit (or affidavits) and any other evidence the parties conclude is
necessary to support their statement of facts.
Accordingly, the Court will deny both motions without prejudice with respect to the
recurring funding amount, and order further proceedings as set forth in Section D below.
C. Employee Housing
The current record is, however, sufficient to resolve the parties’ dispute about whether
IHS properly rejected the Tribe’s proposal to include the management of tribally-owned
employee housing as part of the funding agreement. The Tribe is correct that IHS did not.
ISDEAA provides IHS with only four grounds for rejecting a final offer under Title V,
and IHS must specify which grounds it invokes when it rejects an offer. See 25 U.S.C.
§ 5387(c)(1)(A). In subsequent proceedings, the government may rely only on the particular
grounds it specified. See id. §§ 5387(d), 5398. 3
Here, IHS asserted two grounds in the Declination Letter. First, it asserted that managing
the employee housing was “an inherent Federal function that cannot legally be delegated to an
Indian tribe.” AR 132 (quoting 25 U.S.C. § 5387(c)(1)(A)(ii)). Defendants have since
abandoned this ground. Defs.’ Reply at 11-12; Oral Arg. Tr. at 66:19-67:1. Instead, they rely
only on the second ground: that “the amount of funds proposed in the final offer exceeds the
3
In this limited way, the Court’s review of a decision under ISDEAA is somewhat similar to
review under the APA, where a “reviewing court may not supply a reasoned basis for an agency
action that the agency itself did not give in the record under review.” Pierce v. SEC, 786 F.3d
1027, 1034 (D.C. Cir. 2015). This is true even though the ISDEAA’s standard of review is
otherwise incompatible with the APA standard, as noted above.
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applicable funding level to which the [Indian tribe] is entitled under [Title V of ISDEAA].” AR
132 (second alteration in original) (quoting 25 U.S.C. § 5387(c)(1)(A)(i)).
Admittedly, there is something odd about the Tribe’s request. As the Tribe itself
explains, the purpose of a compact and funding agreement under Title V is for a tribe to “step
into the shoes of IHS.” Pl.’s Br. at 22 (emphasis omitted). But here there are no shoes to fill:
both parties assert that the Tribe, not IHS, previously operated the housing at issue. Oral Arg.
Tr. at 66:8-18; Pl.’s Br. at 19. Nor is the Tribe seeking federal funding for the employee
housing. See Pl.’s Reply at 19. It seems strange to include this activity—one that the
government never undertook or funded, and will not fund going forward—in a “funding
agreement” intended to govern programs handed over from the government to the Tribe.
Nonetheless, Defendants cannot prevail on this ground, because their theory does not line
up with the statutory language IHS chose to rely on in rejecting the Tribe’s offer: that “the
amount of funds proposed in the final offer exceeds the applicable funding level to which the
Indian tribe is entitled.” 25 U.S.C. § 5387(c)(1)(A)(i). Defendants nowhere assert that the Tribe
ever requested any funds to manage the housing, and the Tribe has expressly said that it is not
making such a request. Instead, Defendants’ objection is that including the employee-housing
provision in the funding agreement will result in the government taking on potential tort liability
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. AR 133; see also 25
U.S.C. § 5396(a) (extending FTCA coverage to activities conducted by tribes pursuant to
compacts and funding agreements under Title V of ISDEAA). But FTCA liability is irrelevant to
the question before the Court, which is whether Defendants can justify the specific ground IHS
asserted in the Declination Letter: that the “amount of funds” the Tribe has requested is greater
than the “funding level” to which it is entitled. 25 U.S.C. § 5387(c)(1)(A)(i). Potential tort
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liability—a risk of future expenditures that may or may not come to pass—is not a particular
“amount of funds.” Therefore, the government’s argument fails as a matter of law.
The Court will also not consider Defendants’ suggestion that the Tribe should adopt
certain statutory standards for managing the property to reduce any potential liability. See Defs.’
Br. at 20-21 (citing 25 U.S.C. § 1638a). The suggestion may well be a prudent one.
Nonetheless, the Court has no reason to pass on it, because potential tort liability is not relevant
under the analysis that 25 U.S.C. § 5387(c)(1)(A)(i) requires the Court to undertake.
For these reasons, the Court will grant the Tribe’s motion on the employee-housing issue.
D. Conclusion
For the foregoing reasons, the Court hereby ORDERS that the Tribe’s motion (ECF No.
14) is GRANTED IN PART and DENIED IN PART, and Defendants’ motion (ECF No. 16) is
DENIED. Summary judgment is granted for the Tribe and against Defendants on the issue of
the employee-housing provision, and is denied without prejudice with respect to the recurring-
funding issue.
It is FURTHER ORDERED that the parties shall meet and confer and, no later than
October 26, 2018, file the following:
1. A joint statement of the remaining disputed legal issues in this case.
2. Either:
(a) A joint stipulation of facts that includes, at a minimum, the amount of
recurring funding to which the Tribe will be entitled if it prevails on each
of the separate disputed legal issues; or
(b) A joint statement (or, if the parties cannot agree, separate statements) of
undisputed facts that includes, at a minimum, the above information about
the amount of recurring funding to which the Tribe will be entitled, along
with one or more affidavits (and any attachments the parties believe are
necessary) supporting the facts set forth in the joint statement (or separate
statements).
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3. A proposed schedule for renewed motions for summary judgment on the issue of
the recurring funding amount.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 27, 2018
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