Cook Inlet Tribal Council, Inc. v. Mandregan ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COOK INLET TRIBAL COUNCIL,
Plaintiff,
v.
No. 14-cv-1835 (EGS)
CHRISTOPHER MANDREGAN, JR.,
et. al.,
Defendants.
MEMORANDUM OPINION
Pursuant to the Indian Self-Determination and Education
Assistance Act (“ISDEAA”), 25 U.S.C. §§ 5301, et seq., Plaintiff
Cook Inlet Tribal Council (“CITC”), an Alaskan Native tribal
organization, challenges a decision of the Indian Health Service
(“IHS”), a component of the United States Department of Health
and Human Services (“HHS”). On July 7, 2014, IHS declined CITC’s
2014 proposed amendment to the funding agreement in its self-
determination contract with the federal government (the
“declination decision”). On November 7, 2018, this Court issued
a Memorandum Opinion and a separate Order (“Remand Order”) that
granted in part CITC’s motion for summary judgment, vacated the
declination decision, and remanded it to IHS for a determination
consistent with the Opinion without issuing a final judgment.
Cook Inlet Tribal Council v. Mandregan, 348 F. Supp. 3d 1, 2-3,
17 (D.D.C. 2018) (“Cook I”).
The parties move for reconsideration of the remedy the
Court ordered in Cook I. CITC also moves for attorneys’ fees and
costs. Upon careful consideration of the parties’ submissions,
the applicable law, the entire record, and for the reasons
stated below, the Court GRANTS IN PART and DENIES IN PART CITC’s
cross-motion for reconsideration, GRANTS IN PART and DENIES IN
PART Defendants’ motion for reconsideration, and HOLDS IN
ABEYANCE CITC’s motion for attorneys’ fees and costs.
I. Background
The Court assumes the parties’ familiarity with the factual
background and procedural history, which are set forth in
greater detail in the Court’s prior Opinion. See Cook I, 348 F.
Supp. 3d at 2-4. Before addressing the parties’ arguments, the
Court provides an abbreviated overview of the relevant statutory
scheme and the Court’s previous rulings.
The ISDEAA authorizes the Secretary of HHS or the Secretary
of the United States Department of the Interior to enter into
self-determination contracts with Indian tribes and tribal
organizations. See 25 U.S.C. § 5321; see also id. § 5304(i),
(j). Under those contracts, the tribes promise to provide
federally-funded services, such as tribal educational, social,
and health services, that otherwise would have been provided by
the federal government. Id. § 5321(a). The ISDEAA directs the
Secretary to enter into a self-determination contract with an
2
Indian tribe upon the request of the tribe under certain
circumstances. Id.
The Secretary can pay an Indian tribe or a tribal
organization from two sources of funding: (1) the “Secretarial”
amount, id. § 5325(a)(1); and (2) the “contract support costs”
amount, id. § 5325(a)(2), (3). The Secretarial amount is the
amount that the Secretary would have spent if the agency itself
operated the programs. Cook I, 348 F. Supp. 3d at 7. The
Secretarial amount is committed to the agency’s discretion. See
25 U.S.C. § 5325(a)(1). But the Secretary has limited discretion
for the contract support costs funding. See § 5325(a)(2); see
also Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1344
(D.C. Cir. 1996) (“Congress left the Secretary with as little
discretion as feasible in the allocation of [contract support
costs].”).
Because “[i]t soon became apparent” that the Secretarial
amount did not fully account for the total costs incurred by
Indian tribes to provide the services under the self-
determination contracts, Salazar v. Ramah Navajo Chapter, 567
U.S. 182, 186 (2012), the ISDEAA “mandates that the Secretary
shall pay the full amount of ‘contract support costs’ incurred
by tribes in performing their contracts.” Id. at 185; see also
25 U.S.C. § 5325(a)(2). The ISDEAA defines “contract support
costs” as “an amount for the reasonable costs for activities
3
which must be carried on by a tribal organization as contractor
to ensure compliance with the terms of the contract and prudent
management[.]” Cook I, 348 F. Supp. 3d at 7 (quoting 25 U.S.C. §
5325(a)(2)). 1
At issue in this case is whether the Secretary must pay a
tribal organization’s “facility support costs” exclusively from
the Secretarial amount, or whether facility support costs can be
paid from the “contract support costs” amount. Cook I, 348 F.
Supp. 3d at 2. For tribal contractors, like CITC, the ISDEAA
allows them to propose amendments to the funding agreements in
self-determination contracts. Id. at 8 (citing 25 U.S.C. §
1 Section 5325(a)(2) provides that “contract support costs”
consist of costs that: “(A) normally are not carried on by the
respective Secretary in his direct operation of the program; or
(B) are provided by the Secretary in support of the contracted
program from resources other than those under the contract.” 25
U.S.C. § 5325(a)(2). Under Section 5325(a)(3)(A), the contract
support costs “shall include the costs of reimbursing each
tribal contractor for reasonable and allowable costs of” two
categories: “(i) direct program expenses for the operation of
the Federal program that is the subject of the contract,” and
“(ii) any additional administrative or other expense related to
the overhead incurred by the tribal contractor in connection
with the operation of the Federal program, function, service, or
activity pursuant to the contract,” provided that such funding
does not duplicate the Secretarial amount. Id. § 5325(a)(3)(A);
see also Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631,
635 (2005) (listing examples of “contact support costs” that
“include indirect administrative costs, such as special auditing
or other financial management costs[;]” “direct costs, such as
workers’ compensation insurance[;]” and “certain startup
costs”).
4
5321(a)(2)). Through annual funding agreements incorporated into
the contracts, the Secretary pays the tribe’s costs to
administer the programs when the tribe submits a proposal. See
25 U.S.C. § 5321(a)(2). “[T]he Secretary shall, within ninety
days after receipt of the proposal, approve the proposal and
award the contract unless the Secretary provides written
notification to the applicant that contains a specific finding
that clearly demonstrates” one of the five conditions set forth
in Section 5321(a)(2). Id.; see also id. § 5321(a)(4). “[T]he
Secretary may extend or otherwise alter the 90-day period . . .
if before the expiration of such period, the Secretary obtains
the voluntary and express written consent of the tribe or tribal
organization to extend or otherwise alter such period.” Id. §
5321(a)(2); see also 25 C.F.R. § 900.18 (“A proposal that is not
declined within 90 days (or within any agreed extension . . .)
is deemed approved . . . .”). 2
Since 1992, CITC has contracted with IHS to operate
2 “The ISDEAA is implemented by regulations promulgated by the
Secretary, collected in 25 C.F.R. Part 900. Those regulations
are automatically made part of all ISDEAA contracts.” Seneca
Nation of Indians v. U.S. Dep’t of Health & Human Servs., 945 F.
Supp. 2d 135, 144 (D.D.C. 2013). Courts have found 25 C.F.R. §
900.18 to be applicable where, as here, a party challenges a
declination decision. See, e.g., Navajo Nation v. U.S. Dep’t of
Interior, 852 F.3d 1124, 1126, 1130 (D.C. Cir. 2017); Seneca
Nation, 945 F. Supp. 2d at 144-145, 147, 149-50, 152. Therefore,
the Court rejects Defendants’ argument that 25 C.F.R. § 900.18
is inapplicable here. See Defs.’ Opp’n, ECF No. 60 at 4 n.1.
5
substance abuse programs serving Alaskan Natives living in the
Cook Inlet region—programs that would otherwise have been
federal programs. Cook I, 348 F. Supp. 3d at 3-4. CITC operates
these programs under the authority of a Board of Directors,
which consists of representatives from eight federally-
recognized Native American tribes. Id. at 4. CITC’s first self-
determination contract provided, among other costs, $11,838.50
for facility-related costs. Id. CITC has received that same
amount for those costs in subsequent years. Id. By 2013, CITC’s
facility support costs grew to $479,040. Id. In April 2014, CITC
proposed an amendment to the 2014 self-determination contract to
add $479,040 in “direct contract support costs associated with
facility support.” Id.
In rejecting CITC’s proposal in July 2014, id., IHS based
its declination decision on one of the five declination options
permitted in the ISDEAA: “[T]he amount of funds proposed under
the contract is in excess of the applicable funding level for
the contract[.]” 25 U.S.C. § 5321(a)(2)(D). IHS interpreted the
ISDEAA’s funding provisions to mean that CITC already receives
those costs through its annual “Secretarial” funding. Cook I,
348 F. Supp. 3d at 4; see also 25 U.S.C. § 5325(a)(3)(A)
(contract support costs funding “shall not duplicate any
funding” otherwise provided). In other words, IHS argued that
CITC’s request for $479,040 in facility support costs would
6
result in duplicative funding as both Secretarial funding and
contract support costs, in violation of the ISDEAA. Cook I, 348
F. Supp. 3d at 4.
Shortly thereafter, litigation ensued. Id. CITC appealed
IHS’ declination decision to this Court, bringing suit against
Christopher Mandregan, Jr., Alaska Area Director of IHS; Alex M.
Azar II, 3 Secretary of HHS; and the United States of America
(collectively, the “Defendants”). Id. at 2, 4. Thereafter, the
parties filed cross-motions for summary judgment. Id. at 4.
In Cook I, the Court granted in part CITC’s motion for
summary judgment and vacated IHS’ declination decision of CITC’s
2014 proposal for additional “contract support costs” funding to
account for the increased facility support costs because IHS
improperly declined the proposal. Id. at 17. The Court found
that IHS failed to meet its burden of demonstrating that CITC’s
proposal was in excess of the applicable funding level for the
contract, id. at 14, and that the administrative record did not
contain sufficient documentation for the Court to determine
whether or not CITC’s request duplicates any funding already
provided by the agency, id. at 17. The Court held that Section
5325 of the ISDEAA, 25 U.S.C. § 5325, is ambiguous, id. at 8-12,
and found that CITC’s interpretation of IHS’ guidance—suggesting
3 Secretary Azar has been automatically substituted as a
defendant in this case. See Fed. R. Civ. P. 25(d).
7
that facility support costs may be funded as “contract support
costs”—is reasonable, id. at 12-13, 16. In fashioning a remedy,
the Court remanded CITC’s 2014 contract proposal to IHS for a
determination consistent with the Court’s Opinion regarding the
amount of facility support costs that should be funded as
contract support costs beginning with the 2014 contract to
present. Id. at 17. The Court directed the Clerk of Court to
close the case without prejudice, granting either party with the
option to file a motion to re-open the case following further
IHS proceedings. Remand Order, ECF No. 38 at 2. 4 The Court did
not direct the Clerk to enter a final judgment. See id.; see
also Cook I, 348 F. Supp. 3d at 17.
Cook I set in motion a flurry of activity, including:
(1) cross-motions for reconsideration, see, e.g., Defs.’ Mot.
for Recons., ECF No. 43; Pl.’s Cross-Mot. for Recons. (“Pl.’s
Mot. for Recons.”), ECF No. 52; (2) a motion for attorneys’
fees, see Pl.’s Mot. for Att’ys’ Fees & Costs, ECF No. 41; (3) a
motion to stay agency proceedings, see Pl.’s Mot. to Stay, ECF
No. 49; (4) a Bill of Costs, see Pl.’s Bill of Costs, ECF No.
40; and (5) an appeal to the United States Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”), see Defs.’
4 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
8
Notice of Appeal, ECF No. 47. 5
The Court exercised its remedial discretion to stay its
Remand Order, see Min. Order (Jan. 18. 2019) (citing Friends of
Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006)). The
Court retained jurisdiction over the case due to the pending
cross-motions for reconsideration, see Min. Order (Jan. 18.
2019), and the D.C. Circuit held in abeyance the appeal pending
the resolution of those motions, see Order, ECF No. 56 (D.C.
Cir. Jan. 23, 2019). Finally, the Court granted the parties’
proposed briefing schedule for the pending motions, Min. Order
(Jan. 29, 2019). 6 Those motions are ripe and ready for the
Court’s adjudication.
II. Legal Standard
Federal Rule of Civil Procedure 54(b) governs the parties’
cross-motions for reconsideration because the Court has not
5 On January 18, 2019, the Court granted CITC’s motion for
expedited consideration of its motion to stay agency proceedings
in view of CITC’s deadline for providing information to IHS.
Min. Order (Jan. 18, 2019). The Court explained that Defendants’
notice of appeal was premature and will ripen on the date this
Court resolves the cross-motions for reconsideration. See, e.g.,
Nichols v. Bd. of Trustees of Asbestos Workers Local 24 Pension
Plan, 835 F.2d 881, 888 (D.C. Cir. 1987); Unitronics v. Gharb,
318 Fed. Appx. 902, 904 (Fed. Cir. 2008) (per curiam). Finally,
the Court stayed its Remand Order pending resolution of the
cross-motions for reconsideration. Min. Order (Jan. 18, 2019).
6 In the interest of judicial economy, the Court stayed the
proceedings in a related action, Cook Inlet Tribal Council, Inc.
v. Mandregan, Civil Action No. 18-632 (EGS), since that case
involves a nearly identical issue as the one in the present
action. Min. Order, Civil Action No. 18-632 (Apr. 9, 2019).
9
entered a final judgment. Shapiro v. U.S. Dep’t of Justice,
No. CV 13-555 (RDM), 2016 WL 3023980, at *2 (D.D.C. May 25,
2016) (applying Rule 54(b) to a motion for reconsideration
“[b]ecause the Court ha[d] not entered final judgment”). 7 Under
Rule 54(b), “the Court [may] revisit any order that adjudicates
‘fewer than all the claims or rights and liabilities of fewer
than all the parties . . . at any time before’ the entry of
final judgment.” Id. (quoting Fed. R. Civ. P. 54(b)). The
standard for determining whether or not to grant a motion for
reconsideration brought under Rule 54(b) is the “as justice
requires” standard. Judicial Watch v. Dep’t of Army, 466 F.
Supp. 2d 112, 123 (D.D.C. 2006). Under this flexible standard,
the Court considers “whether the court patently misunderstood
the parties, made a decision beyond the adversarial issues
presented, made an error in failing to consider controlling
7 The parties move for reconsideration under Rule 54(b). See
Defs.’ Mot. for Recons., ECF No. 43 at 1, 3-4; see also Pls.’
Mot. for Recons., ECF No. 52 at 8, 12-13. In the alternative,
Defendants move for reconsideration under Federal Rule of Civil
Procedure 59(e). Defs.’ Mot. for Recons., ECF No. 43 at 2-3, 5.
Rule 59(e) provides that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of
the judgment.” Fed. R. Civ. P. 59(e) (emphasis added). CITC
points out that Rule 59(e) does not apply because “a formal
final judgment has yet to be entered in [this] case.” Pls.’ Mot.
for Recons., ECF No. 52 at 13 n. 4. The Court agrees. See Cobell
v. Norton, 224 F.R.D. 266, 271 (D.D.C. 2004) (“Rule 54(b)
governs reconsideration of orders that do not constitute final
judgments in a case.”). Accordingly, the Court will apply Rule
54(b) to the cross-motions for reconsideration.
10
decisions or data, or whether a controlling or significant
change in the law has occurred.” In Def. of Animals v. Nat’l
Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 2008) (internal
quotation marks omitted); see also Montgomery v. IRS, 356 F.
Supp. 3d 74, 79 (D.D.C. 2019) (“[T]here must be some ‘good
reason’ to reconsider an issue already litigated by the parties
and decided by the court, such as new information, a
misunderstanding, or a clear error.”).
The moving party has the burden of demonstrating “that some
harm, legal or at least tangible, would flow from a denial of
reconsideration.” In Def. of Animals, 543 F. Supp. 2d at 76
(quoting Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C.
2005)). “[E]ven if justice does not require reconsideration of
an interlocutory ruling, a decision to reconsider is nonetheless
within the court’s discretion[.]” Id. (internal quotation marks
omitted). However, this discretion is “limited by the law of the
case doctrine and ‘subject to the caveat that where litigants
have once battled for the court’s decision, they should neither
be required, nor without good reason permitted, to battle for it
again.’” Id. (quoting Singh v. George Wash. Univ., 383 F. Supp.
2d 99, 101 (D.D.C. 2005) (citation omitted)).
III. Analysis
In moving for reconsideration, Defendants seek
clarification as to whether the Remand Order was a final
11
judgment, and request that the Court limit the Remand Order to
the 2014 contract proposal on the ground that the 2014 contract
proposal is the only one at issue in this case. Defs.’ Mot. for
Recons., ECF No. 43 at 4. CITC moves for reconsideration on
three grounds: (1) “controlling decisions indicate an
[Administrative Procedure Act (“APA”)]-style remand is improper
in ISDEAA litigation”; (2) CITC will suffer from “legal and
tangible harm” as a result of the denial of reconsideration; and
(3) the parties never “battle[d] over the question of [the
appropriate] remedy” in their summary judgment briefing. Pl.’s
Mot. for Recons., ECF No. 52 at 13 (internal quotation marks
omitted). The Court considers each argument in turn, concluding
that an award to CITC for the increased facility support costs
is the appropriate remedy under 25 U.S.C. § 5331(a), and that
the award must be limited to the 2014 contract proposal. 8
8 Neither party seeks reconsideration of the substance of Cook I
in which the Court: (1) granted in part CITC’s motion for
summary judgment; (2) denied Defendants’ cross-motion for
summary judgment; (3) vacated IHS’ declination decision of
CITC’s 2014 contract proposal; (4) held that Section 5325 of the
ISDEAA is ambiguous; (5) found that CITC’s interpretation of
IHS’ guidance—that facility support costs may be funded as
“contract support costs”—is reasonable; and (6) rejected IHS’
interpretation that all facility support costs must be funded in
the Secretarial amount because the Court found that the agency’s
conclusion was not compelled by the statute and the regulations
or the agency’s own guidance. See Defs.’ Mot. for Recons., ECF
No. 43 at 1-7; see also Pl.’s Mot. for Recons., ECF No. 52 at 1-
32. The Court stands by its initial conclusions as to those
unchallenged portions in its prior Opinion. See Cook I, 348 F.
Supp. 3d at 2-16.
12
A. The Remand Order Was Not a Final Judgment
The parties agree that the Remand Order was not a final
judgment. See, e.g., Defs.’ Mot. for Recons., ECF No. 43 at 5
(“Defendants believe this [R]emand [O]rder is not a final
judgment.”); Pl.’s Mot. for Recons., ECF No. 52 at 13
(requesting entry of a final judgment); Defs.’ Opp’n, ECF No. 60
at 17. Nonetheless, Defendants seek clarification on that point.
E.g., Defs.’ Mot. for Recons., ECF No. 43 at 4-6. Defendants
explain that they make this request for two reasons: (1) to
ensure that “the parties retain the ability to appeal the
[O]rder after the proceedings on remand[;]” and (2) in the event
that “the case is re-opened, and the Court later issues a final
judgment.” Defs.’ Opp’n, ECF No. 60 at 17-18.
A party may seek appellate review “from all final decisions
of the district courts . . . .” 28 U.S.C. § 1291 (emphasis
added). “It is black letter law that a district court’s remand
order is not normally ‘final’ for purposes of appeal under 28
U.S.C. § 1291.” N.C. Fisheries Ass’n v. Gutierrez, 550 F.3d 16,
19 (D.C. Cir. 2008) (citations omitted). “[A]n exception to this
general rule, however, where the agency to which the case is
remanded seeks to appeal and it would have no opportunity to
appeal after the proceedings on remand.” Occidental Petroleum
Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir. 1989). Applying these
principles, the D.C. Circuit held that this Court’s Order
13
granting summary judgment to a party and remanding the matter to
the agency for further proceedings was “a non-final remand
order[.]” Sierra Club v. U.S. Dep’t of Agric., 716 F.3d 653, 655
(D.C. Cir. 2013).
The same is true here. This Court granted in part CITC’s
motion for summary judgment, vacated IHS’ declination decision,
and remanded CITC’s 2014 contract proposal to IHS for a decision
consistent with the prior Opinion. Cook I, 348 F. Supp. 3d at
16-17. The Court’s Remand Order cannot be construed as “final”
because the remand to IHS contemplated further proceedings due
to insufficient information in the administrative record to
support CITC’s request for facility support costs. See Pueblo of
Sandia v. Babbitt, 231 F.3d 878, 881 (D.C. Cir. 2000)
(determining that district court’s Remand Order “contemplate[d]
more than the ministerial act of using a corrected survey”).
Furthermore, Defendants fail to argue that they would not
have had an opportunity to appeal the Court’s decision after the
completion of the agency proceedings on remand. See Defs.’ Mot.
for Recons., ECF No. 43 at 5-6. The Court therefore finds that
its Remand Order is not a final one. See, e.g., Babbitt, 231
F.3d at 881 (holding that “[b]ecause the district court’s order
[came] within the category of a remand for significant further
proceedings,” the D.C. Circuit was “without jurisdiction to
review it because . . . remand orders as a category are not
14
final.”); cf. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744
(1976) (orders granting partial summary judgment but leaving the
“award[ ] of other relief . . . to be resolved have never been
considered . . . ‘final’ within the meaning of 28 U.S.C. §
1291”). 9 Accordingly, the Court GRANTS IN PART Defendants’ motion
for reconsideration, and the Court confirms that the Remand
Order is not a final judgment. See Defs.’ Mot. for Recons., ECF
No. 43 at 5-6.
B. The Court Vacates Its Remand Order
The question of the appropriate remedy in this ISDEAA case
is a challenging one. In their cross-motions for summary
judgment, the parties did not brief whether the proper remedy
was injunctive relief, a referral to meet and confer over the
requested amount of funding, or a remand to the agency. See
9 When deciding whether Remand Orders were final appealable
orders, the D.C. Circuit has analyzed the requirements under the
collateral order doctrine. See, e.g., Sierra Club, 716 F.3d at
657. “The requirements for collateral order appeal . . . [are]
that an order [1] conclusively determine the disputed question,
[2] resolve an important issue completely separate from the
merits of the action, and [3] be effectively unreviewable on
appeal from a final judgment.” Ashraf-Hassan v. Embassy of
France, in the U.S., 610 F. App’x 3, 6 (D.C. Cir. 2015) (quoting
Will v. Hallock, 546 U.S. 345, 349 (2006)). Neither party
invokes the collateral order doctrine, nor do they show that the
Remand Order was immediately appealable under that doctrine. See
generally Defs.’ Mot. for Recons., ECF No. 43; Pl.’s Mot. for
Recons., ECF No. 52. The Court need not consider this issue
because the parties did not raise it. See Brodie v. Burwell, No.
CV 15-322 (JEB), 2016 WL 3248197, at *12 n.1 (D.D.C. June 13,
2016).
15
generally Pl.’s Mot. for Summ. J., ECF No. 13; Defs.’ Cross-Mot.
for Summ. J., ECF No. 15. Without the benefit of briefing on the
appropriate relief, this Court in Cook I remanded CITC’s 2014
contract proposal to IHS for a decision consistent with its
Memorandum Opinion because the Court found that there was
insufficient information in the administrative record to support
the specific amount CITC’s sought in facility support costs. 10
348 F. Supp. 3d at 17. In its cross-motion for reconsideration
of the Remand Order, CITC argues that immediate injunctive
relief, rather than a plenary remand to the agency, is the
appropriate remedy for IHS’ “unlawful” declination decision.
Pl.’s Mot. for Recons., ECF No. 52 at 28. According to CITC, a
plenary remand is “at odds with controlling decisions, is
contrary to the statutory scheme, and prejudices CITC.” Id. at
14. Mindful of the courts in this jurisdiction that have
10CITC requested that this Court direct Defendants to “issue an
amendment to [CITC’s] FY 2014 contract adding $467,201.50 in
direct contract support cost funds” in its Proposed Order
accompanying its motion for summary judgment. Pl.’s Proposed
Order Granting Mot. for Summ. J., ECF No 13-6 at 2 (emphasis
added); see also Compl., ECF No. 1 at 8 ¶ 29 (“On April 11,
2014, CITC submitted to the agency a proposal to amend its FY
2014 funding agreement to include $479,040 in direct contract
support cost funding for the facility costs CITC was incurring
to carry out the contracted programs.” (emphasis added)).
Defendants’ cross-motion for summary judgment was not
accompanied by a proposed order as required by Local Civil Rule
7.1(c). See LCvR 7.1(c) (“Each motion and opposition shall be
accompanied by a proposed order.”); see generally Defs.’ Cross-
Mot. for Summ. J., ECF No. 15.
16
encouraged parties to reach a joint resolution in ISDEAA cases,
CITC is amenable to a negotiated resolution. Id. at 20.
Defendants seek reconsideration of the remedy in Cook I on
different grounds. Defs.’ Mot. for Recons., ECF No. 43 at 6; see
also Defs.’ Opp’n, ECF No. 60 at 1. Acknowledging the Court’s
finding that “the Secretary had not met her burden of ‘clearly
demonstrating’ the basis for her [declination decision],”
Defendants argue that any relief should be limited to the fiscal
year 2014 contract, id., and that “nothing in the ISDEAA compels
the award of the amount proposed by [CITC] . . . in such a
circumstance[,]” Id. at 3. Finally, Defendants contend that the
remand was an appropriate remedy in this case, and the Court
should not disturb its prior Opinion. Id. at 1.
After first explaining the Court’s authority to grant
appropriate relief under the ISDEAA and then discussing the
basis for reconsideration, the Court will address each of the
parties’ arguments in turn.
1. Courts Have Broad Discretion to Fashion an
Appropriate Remedy in Equity under the ISDEAA
In Defendants’ view, “[t]he decision to remand was well
within the Court’s ‘broad discretion to fashion an appropriate
remedy in equity’” under the ISDEAA. Defs.’ Opp, ECF No. 60 at 2
(quoting Pyramid Lake Paiute Tribe v. Burwell, 70 F. Supp. 3d
534, 545 (D.D.C. 2014)). According to CITC, “Congress did confer
17
upon the district courts some measure of latitude to craft
‘appropriate relief’ based on the nature of the ISDEAA
dispute[.]” Pl.’s Mot. for Recons., ECF No. 52 at 26.
Section 5331(a) expressly provides:
[T]he district courts may order appropriate
relief including money damages, injunctive
relief against any action by an officer of the
United States or any agency thereof contrary
to this chapter or regulations promulgated
thereunder, or mandamus to compel an officer
or employee of the United States, or any
agency thereof, to perform a duty provided
under this chapter or regulations promulgated
hereunder (including immediate injunctive
relief to reverse a declination finding under
section 5321(a)(2) of this title or to compel
the Secretary to award and fund an approved
self-determination contract).
25 U.S.C. § 5331(a) (emphasis added). “Statutory construction
must begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accurately
expresses the legislative purpose.” Navajo Nation v. U.S. Dep’t
of Interior, 852 F.3d 1124, 1128 (D.C. Cir. 2017) (quoting
Engine Mfrs. Ass’n. v. South Coast Air Quality Mgmt. Dist., 541
U.S. 246, 252 (2004) (internal quotation marks omitted)).
The D.C. Circuit has recognized that the word “‘may’ is
permissive rather than obligatory.” Baptist Mem’l Hosp. v.
Sebelius, 603 F.3d 57, 63 (D.C. Cir. 2010); Bennett v. Panama
Canal Co., 475 F.2d 1280, 1282 (D.C. Cir. 1973) (“Ordinarily
‘may’ is a permissive not a mandatory term.”). As Defendants
18
correctly point out, see Defs.’ Opp’n, ECF No. 60 at 4, Congress
intended for the term “including” in Section 5331(a) to set
forth a non-exhaustive list of examples of “appropriate relief,”
id. at 4-5; see also United States v. Philip Morris USA Inc.,
566 F.3d 1095, 1115 (D.C. Cir. 2009) (explaining that the term
“including” is meant to be non-exhaustive).
Based on the usage of the word “including” in two separate
places in the statute, Defendants read Section 5331(a) to
provide district courts with a list of non-exhaustive examples
of relief. Defs.’ Opp’n, ECF No. 60 at 4. CITC takes issue with
that interpretation. Pl.’s Reply, ECF No. 62 at 5-6. CITC argues
that “[t]he common feature of all the remedies listed in
sections 5331 is that they speak to final actions taken by a
court,” id. at 5 (emphasis in original), and “[n]one of those
final district court remedies is consistent with the non-
judicial course of sending a challenged declination matter back
to the agency for a do-over[,]” id. at 6 (emphasis in original).
CITC maintains that Section 5331(a) does not contemplate a
remand as a remedy in an ISDEAA case. Id.; see also Pl.’s Mot.
for Recons., ECF No. 52 at 26 (stating that “remand is not among
the kinds of relief Congress enumerated”). CITC goes on to argue
that “[o]nce IHS fails to [issue a declination decision] within
the statutory timeframe, and once the Court has reversed a
declination under section 5321(a)(2), the only permissible
19
remedies under section 5331(a) are to issue statutory
‘injunctive relief,’ including ‘to compel the Secretary to award
and fund an approved self-determination contract,’ or issue a
‘mandamus’ order against the relevant officials.” Id. at 25
(emphasis added) (quoting 25 U.S.C. § 5331(a)).
It is uncontested that Section 5331(a) gives district
courts the authority to impose final actions. It is also
undisputed that a “remand” is not one of the examples listed in
Section 5331(a). That being said, nothing in Section 5331(a)
limits the Court’s authority to grant appropriate relief in the
form of a remand in the ISDEAA context. See 25 U.S.C. § 5331(a).
Indeed, courts in this jurisdiction have determined that a
remand to an agency for further proceedings is a proper remedy
under Section 5331(a) in certain circumstances. See, e.g.,
Seminole Tribe of Fla. v. Azar, 376 F. Supp. 3d 100, 114 (D.D.C.
2019) (finding that remand was appropriate because “the parties
should be afforded another opportunity to reach an agreement
before time and resources are expended on further judicial
proceedings”). CITC has failed to cite any binding authority
within this Circuit—and the Court is aware of none—that
prohibits a district court from remanding to an agency a
declination decision. See generally Pl.’s Mot. for Recons., ECF
No. 52. The Court therefore finds that CITC’s interpretation of
Section 5331(a) is untenable because the plain language of that
20
section gives this Court broad discretion to fashion an
appropriate remedy, including, but not limited to, a remand to
the agency for further proceedings. 11 See 25 U.S.C. § 5331(a).
2. Controlling Decision
The Court next considers the basis for reconsideration of
Cook I. A party must provide the Court with a “meritorious basis
upon which to grant it reconsideration.” Robinson v. District of
Columbia, 296 F. Supp. 3d 189, 193 (D.D.C. 2018). Defendants
appear to rely on the Court’s authority to modify Cook I in the
interest of justice. See Defs.’ Mot. for Recons., ECF No. 43 at
4 (stating the “as justice requires” standard). CITC argues that
11In Cook I, the Court remanded CITC’s 2014 proposal to IHS,
citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985). Cook I, 348 F. Supp. 3d at 17. To support their position
that the Remand Order was an improper remedy, CITC draws a
distinction between Florida Power and Cook I, arguing that
“[Florida Power] concerned routine agency remands in the context
of the Hobbs Act and the APA, not the special judicial review
proceedings governed by the ISDEAA.” Pl.’s Mot. for Recons., ECF
No. 52 at 22. CITC points out that this action is unlike an APA
action because judicial review in ISDEAA cases is not limited to
the administrative record. Id. CITC relies on Fort McDermitt
Paiute & Shoshone Tribe v. Price, No. 17-837, 2018 WL 4637009,
at *2 n.2 (D.D.C. Sept. 27, 2018), in which the court observed
that it is a “misconception that [an ISDEAA] case involves an
APA-style review limited to the administrative record. It does
not.” Id. at 22-23. CITC argues that Florida Power does not
control the outcome of this case. Id. at 23. Defendants have
conceded these arguments by not responding to them. See Campbell
v. Nat’l R.R. Passenger Corp., 311 F. Supp. 3d 281, 327 (D.D.C.
2018) (Sullivan, J.) (“Plaintiffs do not offer any response to
this argument, and thus concede it.”); see also Defs.’ Opp’n,
ECF No. 60 at 13 (“There are certainly distinctions between the
APA and the ISDEAA[.]”).
21
this Court erred in failing to consider “[c]ontrolling decisions
from this Circuit and from this Court, as well as other federal
courts[.]” Pl.’s Mot. for Recons., ECF No. 52 at 16.
“[R]econsideration will generally be denied unless the
moving party can point to controlling decisions or data that the
court overlooked—matters, in other words, that might reasonably
be expected to alter the conclusion reached by the court.”
Cobell, 355 F. Supp. 2d at 539 (quoting Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)). CITC contends that the
D.C. Circuit, courts in this jurisdiction, and federal courts in
other jurisdictions lend support to their argument that a remand
is contrary to “controlling decisions” where a court reverses
the agency’s declination decision. Pl.’s Mot. for Recons., ECF
No. 52 at 16-21 (collecting cases). This Court is bound by
“controlling precedent—which in this [D]istrict, means D.C.
Circuit and Supreme Court precedent.” Mesa Power Grp., LLC v.
Gov’t of Canada, 255 F. Supp. 3d 175, 182 (D.D.C. 2017). CITC
points to one controlling decision as the proper basis for
reconsideration: Navajo Nation v. United States Department of
the Interior, 852 F.3d 1124 (D.C. Cir. 2017). Pl.’s Mot. for
Recons., ECF No. 52 at 17-18 (“Navajo Nation, decided well after
the close of briefing here, is controlling decisional law on the
remedial issue presented in this case.”).
In Navajo Nation, a Native American tribe delivered to the
22
agency a proposal to its annual funding agreement during a
partial government shutdown, requesting a budget increase from
approximately $1.3 million to $17 million. 852 F.3d at 1126-27.
The agency failed to approve or deny the proposal within the
ninety-day window for the Secretary to act under the ISDEAA, but
the agency issued a partial declination decision after the
shutdown, authorizing about $1.3 million. Id. at 1127. As a
result, the tribe brought an action to receive the full amount
requested in the proposal. Id. at 1128. The D.C. Circuit
rejected the government’s arguments for equitable estoppel and
equitable tolling for its untimeliness because: (1) the
government’s position has been that “estoppel does not apply
against the sovereign United States[,]” especially since it “has
charged itself with moral obligations of the highest
responsibility and trust” to Native Americans, id. at 1129
(citation and internal quotation marks omitted); and
(2) “[g]overnment stoppages are hardly unforeseeable” and not
“extraordinary circumstances” warranting equitable tolling since
the government could have receive proposals during the shutdown,
id. at 1130.
The D.C. Circuit also rejected the government’s argument
that the tribe could not be awarded funds in excess of the
“Secretarial amount.” Id. The government argued that the agency
could not “be required to award funding in excess of the amount
23
of funds the [agency] would otherwise have expended on the
particular program or service for the tribe” because the ISDEAA
“provides that the Secretary may decline a proposal if the
amount of funding proposed ‘is in excess of the applicable
funding level for the contract[.]’” Id. (quoting 25 U.S.C. §
5321(a)(2)(D)). The D.C. Circuit explained:
In short, [the Department of the Interior]
seeks to transform the funding floor into a
ceiling. This argument has been oft rejected.
See Yurok Tribe, 785 F.3d at 1412 (noting that
the statute, “by its clear terms, sets a
floor, not a ceiling, on the amount of money
that a Tribe can receive in a self-
determination contract”); Seneca Nation of
Indians v. United States Dep’t of Health &
Human Servs., 945 F. Supp. 2d 135, 150-51
(D.D.C. 2013) (noting that the . . .
Secretarial amount is not immutable and can be
increased by the Secretary). The cited
portions of the ISDEAA do not “support the
government’s claim that self-determination
contracts are limited to funding for programs
the government currently provides to the
requesting tribe.” Yurok Tribe, 785 F.3d at
1412-13.
Id. In reversing the district court’s decision denying the
tribe’s motion for summary judgment, the D.C. Circuit
invalidated the agency’s partial declination decision, thereby
approving the tribe’s proposal for approximately $17 million.
Id.
Relying on Navajo Nation, CITC argues that “[t]he same
outcome follows here” because “in the wake of an unlawful
declination, the contract proposal must be awarded at the net
24
$467,201.50 level specified in CITC’s 2014 proposal.” Pl.’s Mot.
for Recons., ECF No. 52 at 17. CITC contends that this Court
should have awarded injunctive relief to CITC because: (1) this
Court reversed the declination decision; and (2) IHS failed to
“muster all of its arguments and develop a valid declination
decision” within the required ninety-day period. 12 Id. at 16
(citing 25 U.S.C. § 5321(a)(2)). CITC contends that “IHS doesn’t
get a second chance to make a fresh declination decision, to
revise or add to a declination decision made four years earlier,
or to devise new reasons why the amounts should be declined (as
its December 13, 2018, letter now suggests).” Id.
Defendants respond that “as [CITC] notes, there are cases
in which courts have ordered the contract proposal to be awarded
as originally proposed by the contractor, but almost all of
those cases involved a nonexistent or untimely agency decision.”
Defs.’ Opp’n, ECF No. 60 at 8 (footnote omitted). According to
Defendants, Navajo Nation falls within the category of cases in
which courts awarded the contract amendments as proposed where
12Plaintiffs cite several out-of-Circuit decisions to support
the proposition that the Remand Order was impermissible because
IHS did not develop a valid declination decision within the
ninety-day timeframe. See Pl.’s Mot. for Recons., ECF No. 52 at
20-21. Defendants also rely on non-binding authority. Defs.’
Opp’n, ECF No. 60 at 7-8, 11-13. The Court need not consider the
out-of-Circuit decisions because those cases are not binding on
this Court. Cf. Light v. Mills, 697 F. Supp. 2d 118, 124 (D.D.C.
2010) (declining to consider the reasoning of a Sixth Circuit
opinion that was not binding on the court).
25
the agency’s declination decisions were untimely. See id. at 8,
11. Defendants briefly summarize Navajo Nation, and they do not
challenge Navajo Nation as a controlling decision. Id. at 11.
Rather, Defendants attempt to distinguish a decision from a
member of this Court—holding that the proposed contract
amendments in that case became effective when the Secretary
failed to respond within the ninety-day window, Seneca Nation,
945 F. Supp. 2d at 152—from this case because “the Seneca Nation
court was not concerned that the proposed amount might exceed
what the ISDEAA allowed.” Id. at 10. As to Navajo Nation,
Defendants state that the D.C. Circuit “following the reasoning
of Seneca Nation, awarded the contract as proposed.” Id. at 11.
Defendants fail to respond to CITC’s argument that the D.C.
Circuit in Navajo Nation “specifically rejected the agency’s
argument—identical to the argument IHS advances here—that the
Court should instead order the contract approved at a lower
amount because some lower amount was all that the Tribe was
entitled to be paid under the ISDEAA.” Pl.’s Mot. for Recons.,
ECF No. 52 at 17; see generally Defs.’ Opp’n, ECF No. 60.
Accordingly, the Court finds that Defendants have conceded that
point. See Campbell, 311 F. Supp. 3d at 327.
Next, Defendants argue that “the burden of proof required
for the successful defense of a declination has nothing to do
with the appropriate remedy should a court determine that IHS
26
failed to meet that burden.” Defs.’ Opp’n, ECF No. 60 at 5.
Defendants do not deny that this Court in Cook I found that the
agency failed to meet its burden of demonstrating the “validity
of the grounds for declining the contract proposal[.]” Id.
(quoting 25 U.S.C. § 5321(e)(1)). CITC responds that “a remand
accomplishes a complete end-run around that burden, because
instead of having to defend its 2014 declination here and
suffering the consequences when IHS is unable to do so, the
agency gets to simply redo its declination from scratch . . . .”
Pl.’s Reply, ECF No. 62 at 6. Citing the ninety-day window in
Section 5321(a), CITC argues that the facts of this case show
that the Remand Order creates a “perverse outcome” that “upsets
the entire statutory scheme, which strictly limits the reasons
and timeframe in which the Secretary may lawfully decline a
contract proposal.” Id.
The Court is persuaded by CITC’s argument that the unique
facts and circumstances of this case demonstrate that the Remand
Order was inconsistent with Navajo Nation. See 852 F.3d at 1130.
Here, Defendants’ position remains the same: “IHS has always
maintained that if any facilities support costs are provided
through the Secretarial amount, such costs cannot be recouped as
[contract support costs].” Defs.’ Opp’n, ECF No. 60 at 16
(stating that “CSC funding ‘shall not duplicate any funding [for
the Secretarial amount] provided under subsection (a)(1) of this
27
section’” (quoting 25 U.S.C. § 5325(a)(3)). Defendants’
argument—that a remand is appropriate in order to afford the
agency with additional time for “further factual development” to
prevent duplication, id.—is not consistent with the ISDEAA for
two primary reasons. First, the ISDEAA places the burden on the
agency, rather than the tribe or tribal organization, to develop
the record within the ninety-day window, see 25 U.S.C. §
5321(a)(2), and the agency bears the burden to “clearly
demonstrat[e] the validity of the grounds for declining the
contract proposal (or portion thereof)[,]” id. § 5321(e). IHS
failed to do so. Next, the statute permits the agency to seek an
extension of that window with the voluntary and express written
consent of the tribe or tribal organization. Id. § 5321(a)(2).
IHS sought no such extension. 13 CITC states, and this Court
agrees, that “Congress specifically assigned to IHS, and not to
CITC or to the Court, the role of making defensible 90-day
funding determinations when assessing contract proposals.” Pl.’s
13The Court observes that Defendants’ position—“the government
does not agree that a missed statutory deadline must necessarily
result in an award of the contract as proposed,” Defs.’ Opp’n,
ECF No. 60 at 10 n.8—is inconsistent with D.C. Circuit
precedent. See Navajo Nation, 852 F.3d at 1128-30. While this
Court acknowledges that “[n]othing in the Act requires the
Secretary to provide a windfall to a tribe[,]” Pyramid Lake, 70
F. Supp. 3d at 545, the tribe in Navajo Nation was awarded a
contract as proposed where the agency failed to respond to a
tribe’s proposal within the ninety-day window. 852 F.3d at 1128-
30.
28
Mot. for Recons., ECF No. 52 at 23 (emphasis in original). IHS’
failure to do so must result in the approval of the proposal.
See 25 U.S.C. § 5321(a)(2); cf. Cobell v. Norton, 240 F.3d 1081,
1101 (D.C. Cir. 2001) (noting that statutes dealing with tribal
rights should be “construed liberally in favor of the [Native
Americans]”).
The Court cannot ignore that denying reconsideration of the
Remand Order could harm CITC. See In Def. of Animals, 543 F.
Supp. 2d at 76. CITC argues that after the Court issued the
Remand Order, IHS improperly attempted to: (1) use the agency
proceedings on remand to “redo” its declination decision, Pl.’s
Mot. for Recons., ECF No. 52 at 9; and (2) “launch[] a fishing
expedition for information [IHS] believe[d] may help develop new
agency arguments” that CITC’s proposal is “ineligible for
[contract support costs] funding,” id. at 29. On November 30,
2018, an earthquake impacted CITC’s outpatient services and
administrative building in Alaska, causing CITC’s staff to
switch into “emergency response mode.” Id. at 12 (stating that
the “earthquake made CITC’s entire outpatient services and
administrative building uninhabitable”). A few days later, IHS
requested that CITC supply detailed explanations and
documentation for several categories of information, such as
CITC’s general ledger, budget, lease and rental agreements. Id.
at 11 (describing the fourteen requests with subparts as “a
29
wide-ranging set of requests”); see also Letter from Christopher
Mandregan, Jr., IHS, to Gloria O’Neill, CITC (Dec. 13, 2018),
Pl.’s Ex. A, ECF No. 52-1 at 1-3. CITC argues that Mr. Mandregan
demanded the information even though he knew that CITC
transitioned into emergency response mode as a result of the
earthquake, and that he made the demands during the holiday
season. Pl.’s Mot. for Recons., ECF No. 52 at 12. Defendants do
not respond to these points. See generally Defs.’ Opp’n, ECF No.
60; see also Campbell, 311 F. Supp. 3d at 327.
Rather, Defendants rely on Maniilaq Association v. Burwell,
170 F. Supp. 3d 243, 256 (D.D.C. 2016) (“Maniilaq II”), to
support IHS’ document requests. 14 See Defs.’ Opp’n, ECF No. 60 at
14In Maniilaq Association v. Burwell, 72 F. Supp. 3d 227, 240-
241 (D.D.C. 2014) (“Maniilaq I”), the court found that the
tribal organization’s proposed lease of a clinic was included in
the organization’s funding agreement by operation of law where
the Secretary did not respond within the statutorily-mandated
timeframe under 25 U.S.C. § 5387(b), and that remand was not
appropriate. The parties disagree as to whether Maniilaq I and
Maniilaq II are applicable here. CITC argues that the Maniilaq
cases stand for the proposition that the proper remedy for an
illegal declination is an award of the full contract proposal.
Pl.’s Mot. for Recons., ECF No. 52 at 18-19. Defendants argue
that the Maniilaq cases do not apply to this case because both
cases involve Title V of the ISDEAA, whereas this case involves
Title I. Defs.’ Opp’n, ECF No. 60 at 10. Defendants contend that
Maniilaq I is distinguishable because the declination decision
in the present action was timely, id. at 10, and that the court
in Maniilaq II did not award the contract proposal because the
court adopted the parties’ agreement, id. at 9. By not
responding, see Pl.’s Reply, ECF No. 62 at 13-14, CITC has
conceded these points. See Campbell, 311 F. Supp. 3d at 327.
Notwithstanding Defendants’ attempts to distinguish the Maniilaq
30
9 n.6. In Maniilaq II, the court vacated a declination decision
of the tribal organization’s lease proposal because the
Secretary failed to meet her burden to prove, by clear and
convincing evidence, the validity of the agency’s grounds for
rejecting the proposal under 25 U.S.C. § 5387(d). 170 F. Supp.
3d at 255-56. In doing so, the court “stop[ped] short of
requiring the other specific relief that [the plaintiff]
request[ed]” and “compel[led] the parties to discuss, in a
manner consistent with [the] opinion, the proper amount of
compensation . . ., and how the amount of lease compensation
shall be determined in subsequent years.” Id. at 256. In
accordance with the directives in Maniilaq II, the parties
submitted a joint status report, stating that they “conferred
and came to agreement regarding the information and
documentation that should be exchanged to facilitate
negotiations” and “[t]he [p]arties exchanged numerous documents
. . . .” Joint Status Report, Maniilaq II, Civil Action No. 15-
152 (JDB) (D.D.C. May 26, 2016), ECF No. 23 at 1 (emphasis
added). According to Defendants, “[f]ollowing the Court order in
Maniilaq II, IHS requested and received much of the same
documentation it has requested of [CITC] in this matter.” Defs.’
Opp’n, ECF No. 60 at 9 n.6.
cases from this case, Defendants rely on Maniilaq II to support
their position. See Defs.’ Opp’n, ECF No. 60 at 8-9, 9 n.6, 10.
31
The record does not support Defendants’ position. Unlike
the agreement among the parties in Maniilaq II, the letter from
IHS to CITC does not indicate that the parties either conferred
or agreed on the disclosure of the requested information. See
Pl.’s Ex. A, ECF No. 52-1 at 1-3. It is undisputed that IHS
“asked for additional information that could assist it in
‘determin[ing] the amount [Plaintiff] is owed for facility
support costs,’” Defs.’ Opp’n, ECF No. 60 at 16-17 (quoting
Pl.’s Ex. A, ECF No. 52-1 at 1). But CITC had no say in whether
or not the agency’s so-called “narrowly tailored request[s] for
information” were amenable. Id. at 17. For these reasons, CITC
has demonstrated some legal and tangible harm. See In Def. of
Animals, 543 F. Supp. 2d at 76.
As this Memorandum Opinion makes clear, the question of the
appropriate remedy in this ISDEAA case is difficult in light of
the arguments presented in the cross-motions for
reconsideration. Neither party disputes that this Court did not
consider the arguments raised in the cross-motions for
reconsideration regarding the appropriate remedy in this case
because the parties did not raise them in their cross-motions
for summary judgment. See Pl.’s Mot. for Recons., ECF No. 52 at
13; see generally Defs.’ Opp’n, ECF No. 60. The failure of the
parties to raise these arguments provides another basis for
reconsideration. See M.K. v. Tenet, 196 F. Supp. 2d 8, 16
32
(D.D.C. 2001) (“[I]f the arguments addressed herein were
originally raised (i.e., two years ago), it would have prevented
the court from having to reconsider its . . . Memorandum Opinion
and supplemental order.”). In view of the positions advanced in
the cross-motions for reconsideration, the Court exercises its
discretion under 25 U.S.C. § 5331(a), grants injunctive and
mandamus relief to CITC, and directs IHS to award CITC facility
support costs. Accordingly, the Court GRANTS IN PART CITC’s
cross-motion for reconsideration, and VACATES the November 7,
2018 Remand Order.
C. Award Amount
The remaining issue is whether CITC’s requested amount of
facility support costs is “reasonable and allowable” under 25
U.S.C. § 5325(a)(3)(A). The Court observed in its prior Opinion
that it could not assure itself that the requested amount of
$467,201.50 reflects the “reasonable and allowable costs” for
facility support costs funding. Cook I, 348 F. Supp. 3d at 17
(citing 25 U.S.C. § 5325(a)(2), (3)); see also Compl., ECF No. 1
at 10 (“Relief Requested”). Nothing in the briefing on the
question of the appropriate remedy has reassured the Court that
the requested amount does not duplicate any funding already
provided.
CITC argues that the record provides a “basis for
concluding that the amount CITC requested was ‘reasonable and
33
allowable’ [because] CITC’s 2014 contract proposal and
supporting documentation, ECF No. 13-5, reflect that the amount
CITC proposed came directly from CITC’s 2013 independent audit,
ECF No. 11-1 at 171 (showing $479,040 as the total facilities
expenditures).” 15 Pl.’s Mot. for Recons., ECF No. 52 at 24.
Defendants argue that CITC’s requested amount is based on a 2013
independent audit, and “[i]t therefore makes more sense for
[CITC] to rely upon its FY 2014 audited financial statement to
demonstrate the costs it incurred for FY 2014.” Defs.’ Opp’n,
ECF No. 60 at 15. Defendants point to CITC’s “inconsistent
information” for its requested amount, noting that the
administrative record shows “facilities costs totaling $465,865”
is “composed of a variety of costs such as telephone, equipment,
and repair and maintenance, which are routinely identified
separately from facilities expenses in Plaintiff’s financial
statements.” Id. CITC characterizes Defendants’ objections as
“post-hoc justifications.” Pl.’s Reply, ECF No. 62 at 12. CITC
contends that the “$465,865” amount was not the final amount.
Id. And “CITC was clear in its April 11, 2014 proposal that it
was requesting $479,040 in facilities costs (later subject to an
offset).” Id. (emphasis in original) (citing Pl.’s Ex. C, ECF
15The Court takes judicial notice of the records in these
proceedings. Akers v. Watts, 589 F. Supp. 2d 12, 15 (D.D.C.
2008) (Sullivan, J.).
34
No. 13-5 at 1). Further, CITC asserts that it “showed how [the
$479,040 in facilities costs] came directly from CITC’s [2013]
audited financial statement.” Id. (citing Pl.’s Ex. C, ECF No.
13-5 at 2); see also Admin. R., ECF No. 11-1 at 167 (showing
“Facilities” expenses were $479,040 for the year ending in
September 30, 2013).
Because CITC has not directly addressed Defendants’
argument that the requested amount for the facility support
costs should be based on the 2014 audited financial statement,
see id., the Court will take the same approach that was taken in
Pyramid Lake Paiute Tribe v. Burwell. In that case, the court
found that IHS did not provide a valid justification in its
declination decision for the tribe’s contract proposal as
required by the ISDEAA. Pyramid Lake, 70 F. Supp. 3d at 537,
545. The court directed the parties to negotiate the appropriate
amount for the contract because the record did not establish the
amount that IHS would have otherwise provided for the program.
Id. at 545. Here, “CITC is open to exploring a negotiated
resolution, as the courts encouraged the parties to do in
Maniilaq II and Pyramid Lake[.]” Pl.’s Mot. for Recons., ECF No.
52 at 20. The Court therefore directs the parties to negotiate
the appropriate amount for the facility support costs, and
submit to the Court a joint proposed order and final judgment.
The Court next considers Defendants’ request to limit the
35
amount of facility supports costs to the 2014 proposal at issue
in this case. Defs.’ Mot. for Recons., ECF No. 43 at 6; Defs.’
Opp’n, ECF No. 60 at 18. The Court remanded the 2014 contract
proposal to IHS for a determination “regarding the amount of
facility support costs that should be funded as [CSC], beginning
with the 2014 contract to present.” Remand Order, ECF No. 38 at
1-2 (emphasis added); see also Cook I, 348 F. Supp. 3d at 17
(ordering that “on remand, IHS must review CITC’s proposal in a
manner consistent with this Memorandum Opinion and determine the
amount of facility support costs that should be funded as
contract support costs beginning with the 2014 contract to
date”). Defendants argue that the Court may only consider the
2014 contract because the Court lacks jurisdiction to consider
any other years. Defs.’ Opp’n, ECF No. 60 at 18. Defendants
correctly point out that “[a]ny potential amount for subsequent
years—and [fiscal years] 2015–2017 are at issue in separate
cases—will be determined in those separate, related cases.” Id.
CITC agrees that the 2014 proposal is the only proposal at
issue in this case. Pl.’s Mot. for Recons., ECF No. 52 at 31.
Nonetheless, CITC argues that the Court was correct to consider
future years because the court in Maniilaq II ordered “the
parties to discuss . . . the proper amount of compensation for
[a] clinic lease . . ., and how the amount of lease compensation
shall be determined in subsequent years.” Id. at 32 (quoting
36
Maniilaq II, 170 F. Supp. 3d at 256). Unlike the court’s order
in Maniilaq II that directed the parties to discuss the proper
amount, this Court in Cook I remanded the 2014 contract proposal
to IHS with specific directions to determine the amount of
facility support costs beginning with the 2014 contract to date.
Compare Maniilaq II, 170 F. Supp. 3d at 256, with Cook I, 348 F.
Supp. 3d at 17. CITC neither responds to Defendants’ argument
that this Court lacks jurisdiction to consider contracts that
are not at issue in this case, nor challenges Defendants’
argument that the Court will determine any potential amounts for
subsequent years in separate, related cases. See generally Pl.’s
Reply, ECF No. 62. The Court therefore vacates the portion of
Cook I that remanded CITC’s 2014 contract proposal to IHS for a
determination regarding the amount of facility support costs
that should be funded as contract support costs beginning with
the 2014 contract to date. Accordingly, the Court GRANTS IN PART
Defendants’ motion for reconsideration. 16 See Defs.’ Mot. for
Recons., ECF No. 43 at 6.
16The Court DENIES Defendants’ motion for reconsideration with
respect to Defendants’ request that this Court “[r]emand[] the
matter to [IHS] for a determination consistent with this
Memorandum Opinion regarding the amount of facility support
costs in Plaintiff’s 2014 contract proposal that should be
funded as contract support costs.” Defs.’ Proposed Order, ECF
No. 43-1 at 1.
37
D. CITC’s Motion for Attorneys’ Fees and Costs
CITC moves for an award of attorneys’ fees in the amount of
$75,141.56 and costs in the amount of $3,590.92 under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Pl.’s Mot.
for Att’ys Fees & Costs, ECF No. 41 at 1. Defendants oppose this
motion. See Defs.’ Opp’n, ECF No. 58 at 1-13.
Section 2412(d) provides that “[a] party seeking an award
of fees and other expenses shall, within thirty days of final
judgment in the action, submit to the court an application for
fees and other expenses which shows”: (1) “the party is a
prevailing party”; (2) that the applicant “is eligible to
receive fees under this subsection”; (3) the “itemized
statement”; and (4) “that the position of the United States was
not substantially justified.” 28 U.S.C. § 2412(d)(1)(B)
(emphasis added); see also LCvR 54.2 (“In any case in which a
party may be entitled to an attorney’s fee from another party,
the Court may, at the time of entry of final judgment, enter an
order directing the parties to confer and to attempt to reach
agreement on fee issues.” (emphasis added)).
Because the parties agree that the Court did not enter a
final judgment, the Court retains jurisdiction in this case and
exercises its discretion to hold in abeyance CITC’s motion for
attorneys’ fees and costs. See SecurityPoint Holdings, Inc. v.
Transp. Sec. Admin., 836 F.3d 32, 38 (D.C. Cir. 2016) (“When a
38
court retains jurisdiction, the civil action remains ongoing,
and any fee motion must await final judgment.”). The Court also
finds that holding in abeyance CITC’s motion for attorneys’ fees
will conserve judicial resources pending the appeal. See Forras
v. Rauf, 74 F. Supp. 3d 1, 3 (D.D.C. 2014) (finding that “it
[was] in the interests of justice and judicial economy to hold
the motion for attorney fees in abeyance” where a party appealed
the court’s ruling and the matter was pending before the D.C.
Circuit). Accordingly, the Court HOLDS IN ABEYANCE CITC’s motion
for attorneys’ fees and costs until further Order of this Court.
E. CITC’s Bill of Costs
CITC filed a Bill of Costs on November 20, 2018, seeking
fees of the Clerk in the amount of $400. Pl.’s Bill of Costs,
ECF No. 40 at 1. Defendants filed their opposition brief on
December 4, 2018, see Defs.’ Resp., ECF No. 42 at 1-3, and CITC
filed its reply brief on December 10, 2018, see Pl.’s Reply, ECF
No. 44 at 1-6. Local Civil Rule 54.1 permits a prevailing party
to file a bill of costs after the entry of a final judgment. See
LCvR 54.1(a) (“A bill of costs must be filed within 21 days
after entry of judgment terminating the case as to the party
seeking costs, unless the time is extended by the Court.”); see
also LCvR 54.1(c) (“The Clerk shall tax costs after the judgment
has become final or at such earlier time as the parties may
agree or the Court may order.”). While the Local Civil Rules
39
“vest the Court with discretion to award costs before final
judgment,” Cobell v. Norton, 319 F. Supp. 2d 36, 41 (D.D.C.
2004), the Court will not exercise its discretion to do so.
Because no final judgment has been entered in this case, the
Court DENIES WITHOUT PREJUDICE CITC’s Bill of Costs.
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART CITC’s cross-motion for reconsideration, and
GRANTS IN PART and DENIES IN PART Defendants’ motion for
reconsideration. The Court VACATES the portion of the November
7, 2018 Memorandum Opinion and Order which remanded CITC’s 2014
contract amendment proposal to IHS. The Court HOLDS IN ABEYANCE
CITC’s motion for attorneys’ fees, and DENIES WITHOUT PREJUDICE
CITC’s Bill of Costs.
By no later than September 5, 2019, the parties shall
jointly submit a proposed order and a proposed final judgment.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 14, 2019
40