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2015 WL 9777785
Only the Westlaw citation is currently available.
United States District Court,
D. New Mexico.
Navajo Health Foundation—Sage Memorial Hospital, Inc., Plaintiff,
v.
Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services; Robert McSwain,1 Acting Director of Indian Health Services; John Hubbard, Jr., Area Director, Navajo Area Indian Health Services; and Frank Dayish, Contracting Officer, Navajo Area Indian Health Services, Defendants.
No. CIV 14–0958 JB/GBW
|
Filed October 26, 2015

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... before the Court on the Plaintiff’s Motion for Summary Judgment on its First Three Claims for Relief, with Memorandum of Supporting Points and Authorities, filed June 1, 2015 (Doc. 68)(“Motion”). The Court held a hearing on July 31, 2015. The primary issues are: (i) whether the Court’s conclusions of law in Navajo Health Foundation—Sage Memorial Hospital, Inc. v. Burwell, 100 F.Supp.3d 1122 (D.N.M.2015)(Browning, J.)(“Sage ”),2 bind the Court at the summary-judgment stage; (ii) whether the Court should grant summary judgment in favor of Plaintiff Navajo Health Foundation—Sage Memorial Hospital, Inc. on Count I of the Second Amended Complaint, filed June 30, 2015 (Doc. 79)(“SAC”), which asks the Court to deem approved the Renewal No. 1 and Amendment No. 1 to the Indian Self–Determination Act Contract Between Navajo Health Foundation/Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–3) (“2013 Renewal”), and the Annual Funding Agreement Between Navajo Health Foundation—Sage Memorial Hospital, Inc., and The Secretary of the Department of Health and Human Services Fiscal Year 2014, filed January 13, 2015 (Doc. 21–3)(“2014 AFA”); (iii) whether the Court should grant summary judgment in favor of Sage Hospital on Count II of the SAC, which asks the Court to deem approved Renewal No. 1 and Amendment No. 1 to the Indian Self–Determination Act Contract Between Navajo Health Foundation/Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–10)(“2014 Renewal”), and the Annual Funding Agreement Between Navajo Health Foundation—Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–10)(“2015 AFA”); and (iv) whether the Court should grant summary judgment in favor of Sage Hospital on Count III of the SAC, which asks the Court for an accounting of funds that the Defendants provided Sage Hospital from October 1, 2013, to the date of judgment. The conclusions of law in the Sage opinion do not bind the Court at the summary-judgment stage, and the Court is free to consider those issues anew. The Court will, however, grant summary judgment in favor of Sage Hospital on Counts I, II, and III, and determine Sage Hospital’s damages on those counts at trial.3 Accordingly, the Court will grant the Motion.

 

FACTUAL BACKGROUND
*2 “Sage is a Navajo tribal organization4 for purposes of contracting with the Indian Health Service (‘IHS’)5 under the ISDEA6 that operates a health care facility in Ganado, Arizona, within the exterior boundaries of the Navajo Reservation.” Motion ¶ 1, at 37 (setting forth this fact). See Defendants’ Response to Plaintiff’s Motion for Summary Judgment on its First Three Claims for Relief ¶ 1, at 2, filed July 6, 2015 (Doc. 80)(“Response”)(not disputing this fact); First Amended Complaint ¶ 6, at 4, filed November 24, 2014 (Doc. 5)(“FAC”)(setting forth this fact); id. ¶ 19, at 9–10 (setting forth this fact); Answer ¶ 6, at 2, filed February 19, 2015 (Doc. 45)(“Answer”)(admitting this fact)8; id. ¶ 19, at 3 (admitting this fact). “IHS is an agency within the United States Department of Health and Human Services (‘HHS’) and is responsible for providing federal health services to American Indians and Alaska Natives.” Motion ¶ 2, at 4 (setting forth this fact). See Response ¶ 2, at 2 (not disputing this fact); About IHS, filed December 29, 2014 (Doc. 17–1). “Defendant [Sylvia Mathews] Burwell is the Secretary of HHS and has ultimate responsibility for carrying out all the functions, authorities, and duties of HHS including contracting on behalf of the United States with Indian tribal organizations under the ISDEA to provide health care to Native Americans.” Motion ¶ 3, at 4 (setting forth this fact). See Response ¶ 3, at 2 (not disputing this fact); FAC ¶ 7, at 4 (setting forth this fact); Answer ¶ 7, at 2 (admitting this fact).
Defendant [Robert] McSwain, substituted for Defendant [Yvette] Roubideaux under Fed.R.Civ.P. 25(d), is the Acting Director of the IHS and has the overall responsibility for carrying out all the functions, authorities, and duties of the IHS within HHS regarding contracting with Indian tribal organizations under the ISDEA to provide health care to Native Americans.
Motion ¶ 4, at 4 (setting forth this fact). See Response ¶ 4, at 2 (not disputing this fact); FAC ¶ 8, at 4 (setting forth this fact); Answer ¶ 8, at 2 (admitting this fact).
Defendant [John] Hubbard is the Area Director of the Navajo Area IHS (“NAIHS”) and has the responsibility for carrying out all the functions, authorities, and duties of the IHS within the Navajo Nation, including such functions, authorities, and duties delegated to him regarding contracting with Indian tribal organizations under the ISDEA.
Motion ¶ 5, at 4 (setting forth this fact). See Response ¶ 5, at 2 (not disputing this fact); FAC ¶ 8, at 4 (setting forth this fact); Answer ¶ 9, at 2 (admitting this fact). “Defendant [Frank] Dayish is the Contracting Officer for the NAIHS and is responsible for ISDEA contracts and funding agreements for IHS programs, functions, services, and activities (‘PFSAs’) undertaken by ISDEA contractors within the Navajo Area IHS, including Sage.” Motion ¶ 6, at 5 (setting forth this fact). See Response ¶ 6, at 2 (not disputing this fact); FAC ¶ 10, at 4–5 (setting forth this fact); Answer ¶ 10, at 2 (admitting this fact). “Dayish has the authority to sign ISDEA contracts and funding agreements with Sage for such IHS programs and to...

 

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... Clinic, (8) Behavioral Health Services, (9) Radiology, (10) Pharmacy, (11) Laboratory, (12) Physical Therapy, (13) Public Health Nursing, (14) Employee Health Services, (15) Health Education, (16) Transportation Services, (17) School Based Services, (18) Diabetes Program, and (19) Traditional Medicine.
Motion ¶ 8, at 5 (setting forth this fact). See Response ¶ 8, at 2 (not disputing this fact); FAC ¶ 20, at 10 (setting forth this fact); Answer ¶ 20, at 3 (admitting this fact). “Sage and IHS extended the 2009 Contract without interruption for successive years, through September 30, 2013.” Motion ¶ 9, at 5 (setting forth this fact). See Response ¶ 9, at 2 (not disputing this fact); FAC ¶ 21, at 10 (setting forth this fact); Answer ¶ 21, at 3 (admitting this fact); Indian Self–Determination Contract Between Navajo Health Foundation/Sage Memorial Hospital and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–1)(“2010 Contract”); Annual Funding Agreement Between Navajo Health Foundation/Sage Memorial Hospital and the Secretary of the Department of Health and Human Services Fiscal Year 2013, filed January 13, 2015 (Doc. 21–2)(“2013 AFA”); Declaration of Christi El–Meligi ¶ 4, at 1 (dated May 28, 2015), filed June 1, 2015 (Doc. 68–1)(“El–Meligi 2d Decl.”).

“Sage proposed a three-year ISDEA contract renewal and [Annual Funding Agreement (‘AFA’) ] for fiscal year (‘FY’) 2014 to IHS by letter dated August 22, 2013.” Motion ¶ 11, at 6 (setting forth this fact). See Response ¶ 11, at 2 (not disputing this fact); FAC ¶ 21, at 11–12 (setting forth this fact); Answer ¶ 21, at 3 (admitting this fact); Letter from Ahmad R. Razaghi, Chief Executive Officer of Navajo Health Foundation—Sage Memorial Hospital, Inc., to Alva Tom, Acting Director of the Office of Indian Self–Determination at the Navajo Area Indian Health Service (dated Aug. 22, 2013), filed January 13, 2015 (Doc. 21–3)(“Aug.22, 2013, Ltr.”); 2013 Renewal; 2014 AFA; El–Meligi 2d Decl. ¶ 4, at 1.9 “Sage proposed [funding] for FY 2014 of $20,738,846....” Motion ¶ 15, at 6 (setting forth unmodified version of this fact). See Aug. 22, 2013, Ltr. at 3.10 “IHS did not approve or disapprove Sage’s proposed three-year contract renewal under the ISDEA [until September 26, 2014]. IHS opted instead to provide Sage funding on a monthly basis during the conduct of an IHS Performance Monitoring Review (‘Review’) and a forensic audit (‘Audit’) conducted by Moss Adams LLP.” Motion ¶ 16, at 7 (setting forth unmodified version of this fact). See FAC ¶ 22, at 11 (setting forth this fact); Answer ¶ 22, at 3 (admitting this fact).11

*4 “As of September 19, 2014, IHS and Sage had extended the FY 2011–2013 ISDEA contract and FY 2013 AFA through September 30, 2014.” Motion ¶ 17, at 7. See Response ¶ 17, at 3 (not disputing this fact); El–Meligi 2d Decl. ¶ 5, at 2; Letter from Floyd Thompson, Executive Officer of the Navajo Area Indian Health Service to Ahmad Razaghi, Chief Executive Officer of Navajo Health Foundation—Sage Memorial Hospital, Inc. (dated Sept. 17, 2013), filed June 1, 2015 (Doc. 68–1)(“Sept.17, 2013, Ltr.”). “With the end of fiscal year 2014 looming and without an indication from IHS as to IHS’ plans regarding Sage, Sage was unsure as to the status and acceptability to IHS of its proposed three-year contract renewal proposal for the period ending September 30, 2016.” Motion ¶ 17, at 7 (setting forth this fact). See El–Meligi 2d Decl. ¶ 7, at 2–3.12 “Thus, to avoid any gap in the contract period, Sage submitted a second proposed three-year contract renewal ending September 30, 2017 and proposed FY 2015 AFA to IHS via letter dated September 19, 2014.” Motion ¶ 18, at 7 (setting forth this fact). See 2014 Renewal; 2015 AFA; El–Meligi 2d Decl. ¶ 4, at 1–2.13

*5 “Sage proposed an increase in funding for FY 2015 from [its requested amount of] $20,116,437 [in the 2013 AFA] ... and $20,738,846 (in the proposed FY 2014 AFA) to $32,614,916 for FY 2015.” Motion ¶ 22, at 8 (setting forth unmodified version of this fact). See El–Meligi Decl. ¶¶ 6–7, at 2–3; 2015 AFA at 3–4.14 “Sage explained its reasons for the increased funding proposal at pages 3–4 of its September 19, 2014 letter to IHS.” Motion ¶ 23, at 8 (setting forth this fact) (citation omitted). See Letter from Christi–El–Meligi, Chief Executive Officer of Sage Hospital to Alva Tom, Acting Director of the Office of Indian Self–Determination (Sept. 19, 2014) at 2–3, filed January 13, 2015 (Doc. 21–10)(“Sept. 19, 2014, Ltr.”); El–Meligi 2d Decl. ¶ 7, at 2–3.15 “In addition, the proposed increase in Contract Support Costs (‘CSC’) funding was based on use of the incurred cost method adopted by IHS rather than amounts agreed to in FY 2013 and earlier, which had substantially underfunded Sage’s CSC.” Motion ¶ 23, at 8 (setting forth this fact). See El–Meligi 2d Decl. ¶ 7, at 2–3.16

 

2. The IHS’ Declinations of Sage Hospital’s Contract Proposals.
“One day before the end of FY 2014, on September 29, 2014, IHS hand-delivered a letter dated September 26, 2014 (the ‘Declination’) to Sage. The Declination relied on and included as attachments the July 25, 2014 Moss Adams Audit and the...

 

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... declining Sage Hospital’s proposed 2014 AFA, because that proposed agreement is substantially the same as the 2013 AFA. See SAC ¶ 57B, at 26. Sage Hospital says that the IHS’ refusal to provide Sage Hospital with technical assistance to address the IHS’ concerns is “concededly in violation of 15 U.S.C. § 450f(b)(2).” SAC ¶ 57B, at 26. Sage Hospital argues that the balance of hardships tips in its favor, because, while an injunction will merely require the Defendants to comply with federal law, the Court’s failure to order an injunction will ruin Sage Hospital’s business and cause two hundred Sage Hospital employees to lose their jobs. See SAC ¶ 57C, at 27. Sage Hospital asserts that an injunction will also be in the public interest, because it will allow American Indians to get much-needed and high-quality healthcare at Sage Hospital rather than obtaining lower-quality healthcare at more distant IHS facilities. See SAC ¶ 57D, at 27.

Second, Sage Hospital contends that the IHS’ declination of the 2014 Renewal—to the extent that it is substantially the same as the 2013 Renewal—violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See SAC ¶¶ 59–60, at 27. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the IHS’ declination of the 2014 Renewal to the extent that it is substantially the same as the 2013 Renewal; (ii) compel Burwell to award and fund the 2014 Renewal to the extent that it is substantially the same as the 2013 Renewal; (iii) provide FTCA coverage for Sage Hospital and its...

 

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... *8 Sage Hospital filed the Motion on June 10, 2015, seeking summary judgment on Counts I through III of the SAC. The Motion addresses five issues. First, Sage Hospital says that, under the law-of-the-case doctrine, the Court’s holdings in Sage “ ‘govern the same issues in subsequent phases of the same case.’ ” Motion at 17 (quoting Mocek v. City of Albuquerque, 3 F.Supp.3d 1002, 1046 (D.N.M.2014)(Browning, J.)). Sage Hospital notes that, among other things, the Court decided several legal issues of significance to the Motion:
First, the Court determined that Defendants may not lawfully decline a proposed contract renewal “ ‘where no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the ... tribal organization’ ” and that Defendants may not lawfully decline a proposed successor AFA if it is “ ‘substantially the same’ as its predecessor.” Id. at [1161] *34 (quoting 25 C.F.R. §§ 900.33, 900.32). Second, this Court ruled that a determination of whether a proposed contract renewal has any material and substantial changes and whether a proposed successor AFA is substantially the same as the prior AFA must be determined within the “four corners” of the contracts and AFAs. Id. at [1179–80, 1182–83] *51, *54; see id. at [1179] *50 (whether Secretary may apply declination criteria to proposed successor AFA “turns on the proposal’s contents rather than on a holistic assessment of the ... tribal organization’s performance of the existing AFA ...”); [1183] *54 (IHS authority to decline contract renewal proposal is “strictly limited to the contract renewal proposal’s contents”). Third, if the Secretary can decline only a portion of a contract proposal, she must approve all other severable portions of the proposal. Id. at [1161–62] *34 (citing 25 C.F.R. § 900.25). Fourth, the prior decision found that, even assuming arguendo that the Declination Criteria applied, neither the Moss Adams Audit nor the IHS Performance Monitoring report provided any evidence to establish that Sage violated any federal regulations regarding program compliance necessary to support either of the two criteria invoked by IHS in its Declination. This Court reiterated that the Secretary bears the burden to show the propriety of any declination by clear and convincing evidence. Id. at [1188–89] *60.
Motion at 20–21.

Second, Sage Hospital argues that the ISDEA requires Burwell to approve and fully fund the 2013 Renewal and the 2014 AFA. See Motion at 16–19. Sage Hospital explains that the HHS Secretary must fully fund a contract renewal proposal if “ ‘no material and substantial change to the scope or funding of a program, function, services, or activities [PFSAs] has been proposed by the tribal organization.’ ” Motion at 16 (alterations in Motion but not in quoted source)(quoting 25 C.F.R. § 900.33)(citing Sage, 100 F.Supp.3d at 1161–62, 1182–83 (holding that the HHS Secretary’s authority to decline a contract proposal is “strictly limited to the contract renewal proposal’s contents”)). Sage Hospital says that, because the 2013 Renewal proposes no changes to Sage Hospital’s PFSAs or budget, Burwell is legally required to award and fully fund it. See Motion at 22 (citing Sage, 100 F.Supp.3d at 1182 (“The 2013 Renewal proposes only minor amendments to update the 2013 Renewal for a new three-year term and to fix a few typographical errors. The 2013 Renewal offers no modifications to the provisions of the 2010 Contract that speak to the scope and...

 

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... the 2015 AFA and says that, although the Defendants “have not argued that Sage’s proposed 2015 AFA is not substantially the same as the prior 2014 or 2013 AFA,” the Court observed in the Sage opinion that the proposed 2015 AFA was 55% more than the funding specified in the 2013 AFA—which, in the Court’s view, “suggests that the 2015 AFA is not substantially the same as the 2013 AFA.’ ” Motion at 26–27 (quoting Sage, 100 F.Supp.3d at 1166–67).

Sage Hospital contends that, even if the proposed 2015 AFA is not substantially the same as the 2013 AFA and Burwell could apply the ISDEA’s Declination criteria to it, Burwell “must invoke the particular criterion or criteria that she can justify with clear and convincing evidence.” Motion at 27 (citing Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d 1059, 1068 (D.S.D.2007)(“Simply reciting the declination criteria is absolutely insufficient. The law requires a detailed explanation of the Secretary’s rationale for his decision and a disclosure of the facts or documents on which he relied for his decision.”)). Sage Hospital asserts that the IHS declined to enter into the proposed 2015 AFA, “ ‘for the same reasons IHS declined [Sage’s] August 23, 2013 Proposal, as articulated in IHS’s [1st Declination].’ ” Motion at 27 (first alteration in Motion but not in quoted source)(quoting 2d Declination at 11). Sage Hospital explains that the 1st Declination, in turn, invoked two of the ISDEA’s Declination criteria: (i) “ ‘the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory’ ”; and (ii) “ ‘the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract.’ ” Motion at 28 (quoting 1st Declination at 3–4). Sage Hospital contends that the IHS “did not even mention the only declination criterion that could arguably support its present litigation position”: that the “ ‘amount of funds proposed under the contract is in excess of the applicable funding level for the contract.’ ” Motion at 28 (quoting 25 U.S.C. § 450f(a)(2)).

Sage Hospital maintains that the ISDEA’s regulations prescribe the steps which the HHS Secretary must take to properly decline a proposed AFA:
*10 The procedures in subpart E require the Secretary to make her declination within 90 days of her receipt of the proposal, 25 C.F.R. § 900.21; advise the tribal organization in writing of the Secretary’s objections and include a specific finding that clearly demonstrates that the basis for declination exists in that 90–day period, and provide any documents relied on in making that decision, 25 C.F.R. § 900.29; and offer technical assistance to the tribal organization to overcome the stated objection, 25 C.F.R. § 900.30.
Motion at 28–29. Sage Hospital asserts that Burwell “did none of this” in declining the proposed 2015 AFA. Motion at 29. Sage Hospital argues that the Court should therefore reverse the 2d Declination, and compel Burwell to accept the 2015 AFA and to “add to the contract the full amount proposed, i.e., $32,614,916.” Motion at 29.

Fourth, Sage Hospital argues that both the 1st Declination and the 2d Declination “are illegal for IHS’ failure to provide technical assistance.” Motion at 29 (capitalization and bolding omitted for readability). Sage Hospital says that this violation “provides an independent ground for reversing the declinations” of the 2013 Renewal, the 2014 AFA, the 2014 Renewal, and the 2015 AFA. Motion at 30 (citing Sage, 100 F.Supp.3d at 1161–62 (stating that, if the HHS Secretary declines a contract proposal, he or she must “provide assistance to the ... tribal organization to overcome the stated objections”); Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1068; 25 C.F.R. § 900.33). Sage Hospital asserts that “this basis for invalidating the Secretary’s actions does not depend on whether the Secretary could substantiate any such objections and prove them by clear and convincing evidence.” Motion at 30.

Fifth, and finally, Sage Hospital asks the Court to schedule a hearing on damages. See Motion at 30. Sage Hospital points out that the preliminary injunction which is currently in place provides only prospective relief to Sage Hospital. See Motion at 30. Sage Hospital asserts that the ISDEA provides a remedy in “ ‘money damages’ ” for Sage Hospital’s lost revenue. Motion at 31 (quoting Sage, 100 F.Supp.3d at 1163–64). Sage Hospital also notes that it has incurred other damages which...

 

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... that Sage Hospital incorrectly argues that the Court’s holdings in the Sage opinion govern the Court’s resolution of the Motion. See Response at 7 (citing Motion at 12). The Defendants argue that the “ ‘district courts generally remain free to reconsider their earlier interlocutory orders. In fact, in the Tenth Circuit, law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another.’ ” Response at 7 (quoting Mocek v. City of Albuquerque, 3 F.Supp.3d at 1046) (emphasis omitted).

*11 Second, the Defendants contend that, in the Sage opinion, the Court improperly held that the canon of construction under which courts interpret ambiguous statutes and regulations in favor of American Indian tribes and tribal organizations trumped the deference typically afforded to an agency’s interpretation of its own regulations under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)(“Auer”). Response at 7–8 (citing Sage, 100 F.Supp.3d at 1163–64, 1175–76). According to the Defendants, the Court then improperly held that Burwell’s interpretation of 25 C.F.R. §§ 900.32 and 900.33—which allowed the Defendants to look beyond the four corners of Sage Hospital’s contract proposals to determine whether they were “substantially the same” as their predecessors—was not persuasive. Response at 7–9 (citing Mashantucket Pequot Tribal Nation v. IHS, DHHS Departmental Appeals Board, Appellate Division, No. A–06–60, Decision No. 2028, 2006 WL 1337439 (May 3, 2006)(“Pequot ”)). The Defendants assert that the canon of Indian deference “ ‘is inapplicable when the competing interests at stake both involve Native Americans.’ ” Response at 8 (quoting Cherokee Nation of Okla. v. Norton, 241 F.Supp.2d 1374, 1380 (N.D.Okla.2002)(citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 2328, 180 L.Ed.2d 187 (2011)(“The Government may also face conflicting obligations to different tribes or individual Indians.”); N. Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n. 7, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976)) (”[This] canon has no application here; the contesting parties are an Indian tribe and a class of individuals consisting primarily of tribal members.”); Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 n. 4 (9th Cir.1990)(“[T]he question here is not whether to favor Native Americans but which Native Americans to favor.”)).

The Defendants explain that,
as the Court has found, investigation of Sage’s finances by the Navajo Area Indian Health Service (NAIHS) came about due to concerns within the Navajo Nation that Sage was misusing funding meant to protect its citizens’ health. As a news article reported, “the Ganado Chapter of the Navajo Nation passed a resolution requesting that ‘Mr. Ahman [sic] Razaghi, Chief Executive Officer of Sage Memorial Hospital be terminated and immediately escorted off the Navajo Nation land.’ ” This resolution was, according to the article, spurred by complaints of former Navajo employees of Sage who discovered financial discrepancies and voiced concerns that Sage was diverting money that should otherwise have been applied toward patient care. As this Court found, “[o]n October 16, 2013, Jonathan Hale—the Chairman of the Health, Education and Human Services Committee of the Navajo Nation Council—wrote a letter to the former HHS Secretary—Kathleen Sebelius—voicing a number of concerns about Sage Hospital.” Specifically, Mr. Hale was concerned “that, without a thorough investigation, ‘the Navajo Nation cannot be assured that funds designated for the health of its people are being properly managed.’ ” Accordingly, Mr. Hale requested NAIHS to conduct a performance monitoring review of Sage, which ultimately led to the declination decisions at issue in this case.
Response at 8–9 (citations omitted). The Defendants argue that, because the interests of the Navajo nation and its members are at stake in this case, resolving it “is not a simple matter of deferring to a tribal organization’s litigation position over a federal agency’s interpretation of its own regulation.” Response at 9. The Defendants assert that the canon of Indian deference thus does not apply, and that Burwell’s interpretation of §§ 900.32 and 900.33 should control “unless it is plainly erroneous or inconsistent with the regulation.” Response at 9 (citing Utah v. Babbitt, 53 F.3d 1145, 1150 (10th Cir.1995); Auer, 519 U.S. at 461, 117 S.Ct. 905).

Third, the Defendants ask the Court to revisit its holding in the Sage opinion that the IHS’ “offer of technical assistance in the second declination letter was an ‘empty gesture.’ ” Response at 10 (quoting Sage, 100 F.Supp.3d at 1143 n. 19). The Defendants contend that the language in the 2d Declination is standard and “used by IHS in most declinations.” Response at 10. The Defendants add that, although the Court faulted IHS for putting “ ‘the onus on Sage Hospital to identify what assistance it needed,’ the ISDEAA and its regulations in fact do place the onus on the tribal organization to identify what assistance is needed.” Response at 10 (emphasis in original). According to the Defendants, the ISDEA required them to provide technical assistance to Sage Hospital only “ ‘upon the request of any tribal organization and subject to the availability of appropriations.’ ” Response at 10 (quoting 25 U.S.C. § 450h(d)(3))(citing 25 C.F.R. § 900.28 (describing the HHS Secretary’s duty as providing “any necessary requested technical assistance” to avoid declination); 25 C.F.R. § 900.30 (same)). The Defendants assert that “IHS will provide Sage with technical assistance at Sage’s request,” which complies fully with the ISDEA. Response at 11.

*12 Fourth, the Defendants argue that, even if the declinations violated the ISDEA, the Court should not deem Sage Hospital’s contract proposals accepted. See Response at 11. According to the Defendants, the ISDEA provides that, upon receiving a contract proposal, the HHS Secretary “ ‘shall approve the proposal and award the...

 

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... as its predecessor when it contains a “ ‘different proposed funding amount.’ ” Response at 14 (quoting 25 C.F.R. § 900.32). The Defendants assert that, accordingly, the portion of the 2015 AFA that requests funding in excess of the 2013 AFA is subject to the ISDEA’s Declination criteria. See Response at 14.

*13 In response to Sage Hospital’s argument that Burwell “ ‘failed to predicate the declination of the proposed 2015 AFA on the basis that it sought a different funding amount,’ ” the Defendants argue that Sage Hospital “confuses the regulations, which explain when declination criteria may be invoked, with the declination criteria themselves.” Response at 14–15 (quoting Motion at 29). The Defendants assert that
§ 900.29 requires the Secretary “[t]o advise the Indian tribe or tribal organization in writing of the Secretary’s objections, including a specific finding that clearly demonstrates that (or that is supported by a controlling legal authority that) one of the conditions set forth in § 900.22 exists.” Section 900.22, in turn, is the list of substantive declination criteria; it is not the limitations on using those criteria set forth in 25 C.F.R. § 900.32. The fact that the declination letter did not cite § 900.32 is therefore irrelevant.
Response at 15.

The Defendants contend that Sage Hospital’s argument that the Court must approve the 2015 AFA, because Burwell did not furnish a decision on it within ninety days of receiving it, is “factually untrue.” Response at 15. The Defendants point out that Sage Hospital submitted the...

 

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... Summary Judgment on its First Three Claims for Relief, filed July 20, 2015 (Doc. 85)(“Reply”). Sage Hospital reiterates that the Sage opinion resolved many of the legal disputes that the Defendants raise in the Response. See Reply at 7. Sage Hospital contends that the law-of-the-case doctrine posits that, “ ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Reply at 9 (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir.1991)). Sage Hospital argues that the Defendants have not provided any proper justification for the Court to revise its rulings in the Sage opinion. See Reply at 9.

Sage Hospital says that the Defendants’ main argument—which is that the canon of Indian deference does not apply in this case and that the Court should instead defer to the HHS’ interpretation of the ISDEA’s regulations—is “erroneous.” Reply at 10. Sage Hospital explains that this dispute is between the IHS and Sage Hospital, and no other tribal interests are involved. See Reply at 5. According to Sage Hospital, the IHS “satisfied the request of Navajo Nation Council delegate Hale to investigate Sage’s finances, and there is no indication that the Navajo Nation has lingering concerns.” Reply at 5 (citing Declaration of Alton Joe Shepherd (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41–4)(“Shepherd Decl.”); Declaration of Kee Allen Begay, Jr. (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41–4)(“Begay Decl.”); Declaration of Lee Jack, Sr. (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41–4)(“Jack Decl.”); Declaration of Raymond Smith Jr. (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41–4)(“Smith Decl.”)). Sage Hospital contends that IHS “essentially posits that any dispute over money involving a tribal organization that is not universally esteemed or any dispute with IHS that threatens a reduction of funding for other tribal organizations pits Indian against Indian.” Reply at 10 (citing Response at 8–9). Sage Hospital argues that, if the Defendants were correct, the canon of Indian deference would be “rendered largely nugatory” in declination disputes with the IHS, contrary to Congress’ intent and Tenth Circuit law. Reply at 10 (citing Sage, 100 F.Supp.3d at 1163–65).

Sage argues that the Court’s interpretation of §§ 900.32 and 900.33 in the Sage opinion not only properly applied the canon of Indian deference, but was also consistent with the ISDEA, the ISDEA’s implementing regulations, and Sage Hospital’s ISDEA contract. See Reply at 10 (citing 25 U.S.C. § 450l (c)(“Each provision of the Indian Self–Determination and Education Assistance Act ... and each provision of this Contract shall be liberally construed for the benefit of the Contractor to transfer the funding and the following related functions, services, activities, and programs....”); 2010 Contract at 14 (providing a similar provision); 25 C.F.R. § 900.3(a)(5)(“Congress has further declared that each provision of the Act and each provision of contracts entered into thereunder shall be liberally construed for the benefit of the tribes or tribal organizations to transfer the funding and the related functions, services, activities, and programs....”); 25 C.F.R. § 900.3(b)(11)). Sage Hospital says that “[t]here is simply no basis for IHS’ contention that th[e] Court erred in not deferring to ... an unpublished administrative decision in a case distinguishable in several major respects.” Reply at 11 (citing Sage, 100 F.Supp.3d at 1173–81 & n. 26).

Next, Sage Hospital challenges the Defendants’ assertion that ordering the Defendants to approve and fund the 2013 Renewal and the 2014 AFA moots Sage Hospital’s request that the Court order the Defendants to approve and fund the 2014 Renewal and the 2015 AFA. See Reply at 11. According to Sage Hospital, “[s]tandard principles of contract law ... dictate...

 

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... ISDEA. Reply at 14 (citations omitted)(quoting 25 U.S.C. § 450f(a)(2)(D)). Sage Hospital argues that Burwell did not cite that criterion for declining the proposals, but instead invoked the same inapposite reasons for declining the 2014 Renewal and the 2015 AFA as it did for the 2013 Renewal and the 2014 AFA. See Reply at 14 (citing 2d Declination at 13–16; Sage, 100 F.Supp.3d at 1182–83). Sage Hospital asserts that, if Burwell believes that the amount of funds that Sage Hospital seeks is excessive, she has the ability and the duty to invoke—within the ninety-day period which the ISDEA prescribes—the one declination criterion that would apply: Sage Hospital’s contract proposal is in excess of the applicable funding level. See Reply at 14 (citing Seneca Nation of Indians v. HHS, 945 F.Supp.2d 135, 150 (D.D.C.2013)). Sage Hospital contends that, in Seneca Nation of Indians v. HHS, the
Seneca Nation had proposed an increase of $3,774,392 over the $7,802,211 that it had been awarded the year before, a 48% increase. 945 F.Supp.2d at 137–39. Much as IHS argues here, IHS argued in Seneca that the tribe should not get a “windfall” due to a “procedural technicality,” id. at 150; that such “windfall” would come at the expense of other tribal organizations, id. at 151; that the court should get into the weeds on the validity of the tribe’s calculations, id. at 151–52; and that the court should “evaluate the bargain the parties have struck through their Contract and operation of law,” id. at 151–52. The Seneca court rejected all of those arguments, ruling that the propriety of the tribe’s increased funding request “is a matter properly addressed through contract negotiations or through declination of the proposed amendment pursuant to 25 U.S.C. § 450f(a)(2) if the Secretary truly believed the amount was unsupported.” Id. at 152. In ruling the tribe’s contract approved at the higher funding level as proposed, the court rejected the “Secretary’s argument that she was not obligated to give a timely response of the precise type of response articulated by the statute,” i.e., the one declination criterion specifically addressed to the funding level. Id. at 150 (emphasis added).
Reply at 14–15. Sage Hospital says that other decisions are in accord. See Reply at 15 (citing Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1068; Maniilaq Ass’n v. Burwell, 72 F.Supp.3d 227, 239–41 (D.D.C.2014); Yurok Tribe v. Dep’t of the Interior, 785 F.3d 1405, 1408 (Fed.Cir.2015); Crownpoint Inst. of Tech. v. Norton, No. CIV 04–0531 JP/DJS, Findings of Fact and Conclusions of Law, filed Sept. 16, 2005 (D.N.M.) (Parker, J.)(Doc. 86)(“Crownpoint ”)).

Sage Hospital argues that the ISDEA and its regulations reflect Congress’ intent that tribal organizations have potent rights and effective remedies for the IHS’ unlawful declination decisions. See Reply at 16 (citing Sage, 100 F.Supp.3d at 1179–81). Sage Hospital contends that, although the Defendants argue that the ISDEA does not establish an enforceable duty to fund Sage Hospital’s contract proposals, the ISDEA
itself ... stat[es] that the Court may “compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding ... or to compel the Secretary to award and fund an approved self-determination contract).”
Reply at 17 (alterations in Reply but not in quoted source)(quoting 25 U.S.C. § 450m–1(a)). Sage Hospital maintains that it is therefore entitled to such relief. See Reply at 17.

Sage Hospital reiterates that the IHS violated § 900.30 by refusing to provide Sage Hospital technical assistance before declining Sage Hospital’s contract proposals. See Reply at 17. Sage Hospital states that, contrary to the Defendants’ contentions, “the requirement for IHS to provide technical assistance does not require a request from the tribal contractor.” Reply at 17. Instead, Sage Hospital argues, the applicable regulation states:
*16 When the Secretary declines all or a portion of a proposal, is the Secretary required to provide an Indian tribe or tribal organization with technical assistance?
Yes. The Secretary shall provide additional technical assistance to overcome the stated objections, in accordance with section 102(b) of the Act, and shall provide any necessary requested technical assistance to develop any modifications to overcome the Secretary’s stated objections.
Reply at 17 (bold in original; italics in Reply but not in original) (quoting 25 C.F.R. § 900.30). Sage Hospital asserts that the Defendants omitted the first half of this regulation when they quoted it in the Response. See Reply at 17. Sage Hospital asserts that the Defendants are not entitled to obtain evidence on this issue through discovery, because, “if there is any evidence that IHS offered technical assistance before December 12, 2014...

 

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... litigating the Motion if the Court’s resolution of the Motion would make discovery on the fourth issue irrelevant. Tr. at 34:11–16 (Grohman). The Defendants noted, however, that if the Court holds that Sage Hospital’s claims regarding the 2014 Renewal and 2015 AFA are not moot, but determines that those proposals are not substantially the same as the 2010 Contract and the 2013 AFA, it should allow the Defendants to obtain discovery and proceed to trial on the whether they properly applied the Declination criteria to the 2014 Renewal and 2015 AFA. See Tr. at 33:20–34:3 (Grohman).

*17 Second, the parties and the Court took up what the Defendants asserted was “the biggest mistake or error that [the Court] made in the [Sage ] opinion”—which is that the canon of Indian deference trumps Auer deference. Tr. at 18:1–3 (Court). The Defendants reiterated the argument from the Response that, when American Indians’ interests are pitted against each other in a case, the canon of Indian deference does not apply. See Tr. at 19:23–20:7 (Grohman). Although the Defendants initially said that Auer deference applies to agencies’ interpretations of regulations stated in legal briefs filed at the district court level, see Tr. at 21:2–22:10 (Grohman)(citing Qwest Corp. v. Colo. Pub. Utils. Comm’n, 656 F.3d 1093 (10th Cir.2011)), they later clarified that they are not “asking [the Court] to defer to the brief [, but are instead] asking for deference for the Secretary’s interpretation, as expressed in an administrative decision, and the same consistent interpretation expressed in legal briefs in this case,” Tr. at 44:1–6 (Court, Grohman). Sage Hospital countered that it “can’t see the Indians on the other side of our case. I see the Indian Health Service, ... a federal agency[, but] I don’t see any other Indians.” Tr. at 38:20–23 (Frye). Sage Hospital reiterated that the ISDEA, its regulations, Sage Hospital’s ISDEA contract, and Tenth Circuit authority require the Court to apply the canon of Indian deference. See Tr. at 40:20–23 (Frye).

The Defendants replied that Sage Hospital’s contractual argument is erroneous, because the parties “don’t have a contract,” and the Court is not being asked to interpret a provision of an existing contract between the parties. Tr. at 44:19 (Grohman). The Defendants assert that the ISDEA’s regulations are similarly inapposite, because “[i]f a tribe and a tribal organization are at odds, there is not a clear-cut picture of who to defer to.” Tr. at 44:24–45:1 (Grohman). The Defendants explain:
The fact that the Navajo Nation’s internal politics are complicated, I think, only underscores that it would be very difficult to determine who should be deferred to here. Is it individual council members? Is it the Ganado Chapter that passed a resolution asking Sage to leave? It’s—you know, this is not the business of federal courts. And this is what the Tenth Circuit is saying; that when you have internal disputes, the Canon of Deference simply has no role to play.
Tr. at 45:2–11 (Grohman). With the final word on the matter, Sage Hospital asserted that, even if the Court concludes that the Indian canon of deference does not trump Auer deference, the HHS’ interpretation of § 900.32 in the Pequot decision is “plainly inconsistent with the plain language of the regulations.” Tr. at 45:20–24 (Frye).

Third, addressing Sage Hospital’s merger argument—that the Court can essentially combine the 2013 Renewal, the 2014 Renewal, the 2014 AFA, and the 2015 AFA—the Defendants state that the merger doctrine applies only when parties execute two contracts and requires courts to read those two contracts together. See Tr. at 50:8–10 (Grohman). The Defendants contend that the merger doctrine is irrelevant, because “[n]o contracts have been executed,” and “IHS’s intent is not to enter into a contract.” Tr. at 50:11–13. The Defendants said that the issue is: “[I]f IHS...

 

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... agency and not entitled to deference as such); Church of Scientology of Calif. v. I.R.S., 792 F.2d 153, 162 n. 4 (D.C.Cir.1986)(en banc) (“There is some question, to begin with, whether an interpretive theory put forth only by agency counsel in litigation, which explains agency action that could be explained on different theories, constitutes an ‘agency position’ for purposes of Chevron. ... Whatever position counsel was taking, one thing is clear: it is impossible to find here the sort of clear and consistent agency view (even as purportedly expressed by counsel) that must be given deference.”)(Scalia, J.); Doc. 41–5 at 3 of 4 (DOI/IHS Internal Agency Procedures Handbook, providing, contrary to Defendants’ gloss on the Pequot administrative decision, that the tribal organization’s “performance under the existing contract shall have no effect on the contract renewal process except as stated in 25 C.F.R. § 900.33.... Note in particular that renewal of term contracts with the IHS and the BIA where there are nomaterial and substantial changes proposed will not be reviewed under the declination criteria.”)(emphases added). Sage “proposed” no material and substantial changes in its contract renewal applications.
Notice at 2–3 (alterations in Notice but not in quoted sources)(emphases in Notice but not in quoted source).

Second, Sage Hospital clarifies that, although the Defendants said at the hearing that, when Sage Hospital submitted the 2014 Renewal and 2015 AFA, “no contracts had been executed,” two of Sage Hospital’s exhibits suggest otherwise. Notice at 3 (brackets omitted)(citing 2014 Renewal; Letter from Floyd Thompson, Executive Officer of the Navajo Area Indian Health Service to Ahmad Razaghi, Chief Executive Officer of Navajo Health Foundation—Sage Memorial Hospital, Inc. (dated July 11, 2014) at 26, filed June 1, 2015 (Doc. 68–1)(“July 11, 2014, Ltr.”)). Third, and finally, Sage Hospital notes that, although the Defendants stated at the hearing that they have funding Sage Hospital from “January to October” of 2015 pursuant to the Sage opinion, the Court issued that opinion on April 9, 2015, and the Defendants have provided prospective funding to Sage Hospital only from that date. Notice at 3–4 (citations omitted)(internal quotation marks omitted).

 

LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no...

 

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... must focus first on the legal question of qualified immunity and “determine whether plaintiff’s factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court,” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326–27 (Holmes, J., concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts”).

 

LAW REGARDING THE ISDEA
The ISDEA authorizes American Indian tribes and tribal organizations to contract with either the DOI or the HHS Secretary27 to provide their members federally funded services that a federal agency would otherwise provide directly. See 25 U.S.C. 450a(f); S.Rep. No. 100–274, at 1 (1987), reprinted in 1988 U.S.C.C.A.N. at 2620 (“1987 Senate Report”); Seneca Nation of Indians v. HHS, 945 F.Supp.2d at 143 (“[S]elf-determination contracts essentially allow Indian tribes to step into the shoes of certain United States government agencies in providing certain services to their members.”). When Congress passed the ISDEA in 1975, it recognized that “the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities,” and has “denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians.” 25 U.S.C. § 450(a)(1). Congress thus enacted the ISDEA to “permit an orderly transition of 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.” 25 U.S.C. § 450a(b).

An ISDEA contract proposal typically consists of two parts: (i) a multi-year agreement that satisfies 25 U.S.C. § 450l (c); and (ii) an AFA. See 25 U.S.C. § 450j(c). The AFA must contain: (i) “terms that identify the programs, services, functions, and activities to be performed or administered, the general budget category assigned, the funds to be provided, and the time and method of payment”; and (ii) “such other provisions, including a brief description of the programs, services, functions, and activities to be performed (including those supported by financial resources other than those provided by the Secretary), to which the parties agree.” 25 U.S.C. § 450l (c).

 

1. The Declination Process.
*22 The ISDEA contracting process begins when a tribe or tribal organization submits a contract proposal to the Secretary. See 25 U.S.C. § 450a(2). Unless the tribe or tribal organization agrees to an extension, the Secretary must approve or decline the proposal within ninety days. See 25 U.S.C. § 450a(2)(A); 25 C.F.R. §§ 900.16, 900.17. Otherwise, the proposal is deemed approved. See 25 U.S.C. 450j–1(a); 25 C.F.R. § 900.18.

Should the Secretary decide to decline the proposal in part or in its entirety, he or she must do so based on one of these five reasons:
(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;
(B) adequate protection of trust resources is not assured;
(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;
(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 450j–1(a) of this title; or
(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities, ... because the proposal includes activities that cannot lawfully be carried out by the contractor.
25 U.S.C. § 450f(a)(2). See 25 C.F.R. § 900.22 (setting forth the same declination criteria).

There are a number of limitations on the Secretary’s authority to apply § 450f(a)(2)’s declination criteria. The Secretary cannot decline a contract renewal proposal “where no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the Indian tribe or tribal organization.” 25 C.F.R. § 900.33. Similarly, the Secretary cannot decline a successor AFA proposal that is “substantially the same” as its predecessor. 25 C.F.R. § 900.32. The Secretary also cannot decline any proposal based on any objections “that will be overcome through the contract.” 25 C.F.R. § 900.33. Moreover, if the Secretary can decline only a portion of a contract proposal, he or she must approve all other severable portions of the proposal. See 25 C.F.R. § 900.25.

After the Secretary declines a proposal, he or she must: (i) state any objections in writing to the tribe or tribal organization; (ii) provide assistance to the tribe or tribal organization to overcome the stated objections; and (iii) provide the tribe or tribal organization with a hearing on the record with the right to engage in full discovery on any issue raised in the matter, and the opportunity to appeal the Secretary’s objections. See 25 U.S.C. § 450f(b). The tribe or tribal organization may, in lieu of filing an appeal, initiate an action in federal district court. See 25 U.S.C. §§ 450f(b)(3), 450m–1. In any hearing, appeal, or action in federal court regarding a contract declination, the Secretary bears “the burden of proof to establish by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof).” 25 U.S.C. § 450f(e)(1). Courts faced with ISDEA declination claims have thus required the Secretary to establish “by clear and convincing evidence” the validity of the grounds of his or her declination decision. S. Ute IndianTribe v. Leavitt, 497 F.Supp.2d 1245, 1252 (D.N.M.2007)(Johnson, J.). See Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1068.

 

2. The Reassumption Process.
*23 The Secretary also has the authority to reassume ISDEA contracts. See 25 U.S.C. § 450m. Reassumption means “rescission, in whole or in part, of a contract and assuming or resuming control or operation of the contracted program ... without consent of the Indian tribe or tribal organization.” 25 C.F.R. § 900.246. A federal agency within the HHS or the DOI may unilaterally reassume a contract on either an emergency or non-emergency basis. See 25 C.F.R. § 900.246. An emergency reassumption is permitted when a tribe or tribal organization fails to fulfill the ISDEA contract’s requirements, and that failure poses either: (i) an immediate threat of imminent harm to any person’s safety, or (ii) an imminent substantial and irreparable harm to trust funds, trust lands, or interest in such lands. See 25 C.F.R. § 900.247. A non-emergency reassumption is permitted when there has been either: (i) a violation of the rights, or endangerment of the health, safety, or welfare of any person, or (ii) gross negligence or mismanagement in the handling or use of contract funds, trust funds, trust lands, or interest in trust lands under the contract. See 25 C.F.R. § 900.247.

In an emergency reassumption, the Secretary must: (i) immediately rescind, in whole or in part, the contract; (ii) assume control or operation of all or part of the program; and (iii) give written notice of the rescission to the tribe or tribal organization, and to the community that the contract serves. See 25 C.F.R. § 900.252. The written notice must include: (i) a detailed statement of the findings that support the Secretary’s decision; (ii) a statement explaining the tribe or tribal organization’s right to a hearing on the record within ten days of the reassumption, or such later date as the tribe or tribal organization may approve; (iii) an explanation that the tribe or tribal organization may be reimbursed for actual and reasonable “wind up costs” incurred after the effective date of the reassumption; and (iv) a request for the return of property, if any. 25 C.F.R. § 900.253.

In a non-emergency reassumption, the Secretary must: (i) notify the tribe or tribal organization in writing of the deficiencies in contract performance; (ii) ask the tribe or tribal organization to take specific corrective action within a reasonable period of time, which cannot be less than forty-five days; and (iii) offer and provide, if requested, the necessary technical assistance and advice to help the tribe or tribal organization overcome the deficiencies. See 25 C.F.R. § 900.248. If the tribal organization fails to ameliorate the deficiencies, the Secretary shall provide a second written notice to the tribe or tribal organization that the Secretary will reassume the contract, in whole or in part. See 25 C.F.R. § 900.249. The second written notice shall include: (i) the intended effective date of the reassumption; (ii) the details and facts supporting the intended reassumption; and (iii) an explanation of the tribe or tribal organization’s right to a formal hearing within thirty days of receiving the notice. See 25 C.F.R. § 900.250. The Secretary cannot reassume the contract before the issuance of a final decision in any administrative hearing or appeal. See 25 C.F.R. § 900.251.

 

3. Relief Available Under the ISDEA.
The ISDEA provides a comprehensive range of remedies for a tribe or tribal organization whose contract the Secretary unlawfully terminates. See 25 U.S.C. § 450m–1(a). In any action brought under the ISDEA, the district court “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 subchapter 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 subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract).
*24 25 U.S.C. § 450m–1(a).

Applying § 450m–1(a) to the DOI Secretary’s contract declination decision in Crownpoint, Judge Parker said that “[t]he specific mandamus relief authorized by the ISDA relieves [the plaintiff] of proving the usual equitable elements including irreparable injury and absence of an adequate remedy at law.” Crownpoint at 26 (citations omitted). Other federal district courts have similarly concluded that a tribe or tribal organization does not need to demonstrate the traditional grounds for equitable relief to obtain injunctive or mandamus relief under the ISDEA. See, e.g., Pyramid Lake Paiute Tribe v. Burwell, 70 F.Supp.3d 534, 544–45 (D.D.C.2014)(“Because the IDEAA specifically provides for both injunctive and mandamus relief to remedy violations of the Act, 25 U.S.C. § 450m–1(a), however, the Tribe need not demonstrate the traditional equitable grounds for obtaining the relief it seeks.”); Red Lake Band of Chippewa Indians v. Dep’t of the Interior, 624 F.Supp.2d 1, 25 (D.D.C.2009)(granting specific performance on an ISDEA contract without considering the ordinary grounds for such relief, because the statute provides for injunctive relief); Susanville Indian Rancheria v. Leavitt, No. CIV 07–259 GEB/DAD, 2008 WL 58951, at *10–11 (E.D.Cal. Jan. 3, 2008)(holding that a plaintiff seeking injunctive relief under the ISDEA need not satisfy the traditional equitable requirements); Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1068 (ordering a writ of mandamus where the plaintiffs had not established the traditional equitable requirements, but had established that the DOI Secretary’s contract declination decision violated the ISDEA).

 

4. The Rules for Interpreting Ambiguous ISDEA Provisions.
When faced with an ambiguous federal statute, federal courts typically defer to the administering agency’s interpretation. See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In cases involving American Indians, however, the Tenth Circuit has “taken a different approach to statutory interpretation,” holding that the “normal rules of construction do not apply when Indian treaty rights, or even non-treaty matters involving Indians, are at issue.” Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461 (10th Cir.1997)(quoting EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir.1989))(internal quotation marks omitted). Consequently, the Tenth Circuit has held that federal statutes “are to be construed liberally in favor of Native Americans, with ambiguous provisions interpreted to their benefit.” EEOC v. Cherokee Nation, 871 F.2d at 939 (citation omitted)(internal quotation marks omitted).

The ISDEA is designed to “circumscribe as tightly as possible the discretion of the Secretary.” Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1344 (D.C.Cir.1996). The ISDEA instructs that “[e]ach provision of [the ISDEA] and each provision of contracts entered into thereunder shall be liberally construed for the benefit of the tribes or tribal organizations....” 25 C.F.R. § 900.3(a)(5). The Tenth Circuit has confirmed that the canon of construction favoring American Indian tribes applies to ISDEA claims, noting that “it would be entirely inconsistent with the purpose of the [ISDEA], as well as with the federal policy of Native American self-determination in general, to allow the canon favoring Native Americans to be trumped in this case.” Ramah Navajo Chapter v. Lujan, 112 F.3d at 1462. The Tenth Circuit has explained that this canon of construction “controls over more general rules of deference to an agency’s interpretation of an ambiguous statute.” S. Ute Indian Tribe v. Sebelius, 657 F.3d 1071, 1078 (10th Cir.2011). Consequently, in the Tenth Circuit, federal courts must not afford Chevron deference to the HHS’ or the DOI’s interpretation of the ISDEA’s ambiguous provisions.

*25 Only a few federal district courts have addressed whether the “arbitrary and capricious standard” of the Administrative Procedure Act, 5 U.S.C. §§ 701–06 (“APA”), applies to ISDEA claims. The majority of district courts have concluded that ISDEA’s text, its legislative history, and the general presumption favoring Indian tribes dictates a de novo review of ISDEA claims. See, e.g., Pyramid Lake Paiute Tribe v. Burwell, 70 F.Supp.3d at 542; Seneca Nation of Indians v. Dep’t of Health and Human Servs., 945 F.Supp.2d at 141–42 & n. 5; Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1066–67; Cherokee Nation of Okla. v. United States, 190 F.Supp.2d 1248, 1258 (E.D.Okla.2001), rev’d on other grounds by, 543 U.S. 631, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005); Shoshone–Bannock Tribes of the Fort Hall Reservation v. Shalala, 988 F.Supp. 1306, 1318 (D.Or.1997). A minority of district court cases—three of which are unpublished—used the APA’s arbitrary-and-capricious standard to review ISDEA claims. See, e.g., Citizen Potawatomi Nation v. Salazar, 624 F.Supp.2d 103, 108 (D.D.C.2009); Suquamish Tribe v. Deer, No. CIV 96–5468 (W.D.Wash. Sept. 2, 1997); Cal. Rural Indian Health Bd., Inc. v. Shalala, No. CIV 96–3526 (N.D.Cal. Apr. 24, 1997); Yukon–Kuskokwim Health Corp. v. Shalala, No. CIV 96–155 (D. Alaska April 15, 1997). Those courts have reasoned that, because the ISDEA does not provide a standard of review, courts must use the APA’s arbitrary-and-capricious standard. See Citizen Potawatomi Nation v. Salazar, 624 F.Supp.2d at 108 (“Both the Supreme Court and [the D.C. Circuit] Court of Appeals have declared that, where a statute does not provide a standard of review, as is true of the ISD[E]A, courts must look to the APA standard.”).

 

ANALYSIS
The Court will grant the Motion. The conclusions of law in the Sage opinion do not bind the Court at the summary-judgment stage, and the Court is free to consider those issues anew....

 

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... of a successor annual funding agreement.” 25 C.F.R. § 900.32. Because the 2014 AFA’s contents are substantially the same as the 2013 AFA’s contents, the Defendants improperly applied the ISDEA’s Declination criteria to the 2014 AFA.

The Defendants do not challenge Sage Hospital’s argument that the 2014 AFA’s text is substantially the same as its predecessor’s. Instead, they argue that the 2014 AFA is not substantially the same as the 2013 AFA, because an internal audit uncovered information about Sage Hospital’s operations of which they were not previously aware. The Defendants rely only on Pequot—an unpublished administrative decision—to support their position.

The Court provided a detailed description of the Pequot decision in the Sage opinion:
In that case, a tribal organization sought, as part of a proposed successor AFA with the HHS, authorization to sell pharmaceuticals to non-Indian employees of one of its casinos. See Pequot, 2006 WL 1337439, at *1. The AFA for the previous year included the following language: “The Nation agrees to provide all medically necessary pharmacy services for the Mashantucket Pequot Tribe, beneficiaries of the Tribe’s health benefit plans, other tribe[s] that have a government to government relationship and their health benefit plans.” Pequot, 2006 WL 1337439, at *3 (citation omitted)(internal quotation marks omitted). The predecessor AFA also stated that the “Tribal Council has taken into account the health care and service needs of its membership, community and employees, and has determined that the provisions for such care and services will not result in a denial or diminution of health services to eligible Indians.” Pequot, 2006 WL 1337439, at *3 (citation omitted)(internal quotation marks omitted). The tribal organization’s proposed successor AFA’s text was substantially similar to its predecessor’s. See Pequot, 2006 WL 1337439, at *3.
After the tribal organization submitted the proposed successor AFA, the OIG issued a report from an audit of the tribal organization’s healthcare services, which uncovered that the tribal organization “had extended eligibility for federally discounted drugs to its non-Indian employees without making the required determination that reasonable alternative drug services were not available to these employees.” Pequot, 2006 WL 1337439, at *4. Donna E. Shalala, then-HHS Secretary—who was apparently unaware that the tribal organization had been providing pharmaceutical services to non-Indians—declined the proposed successor AFA on the ground that it included “activities that cannot lawfully be carried out by the contractor.” Pequot, 2006 WL 1337439, at *1. The tribal organization appealed the decision to an Administrative Law Judge, who found that the declination was unlawful and reversed Shalala’s decision. See Pequot, 2006 WL 1337439, at *1.
Thereafter, the DAB reversed the ALJ’s decision and upheld the declination for four reasons. See Pequot, 2006 WL 1337439, at *4–17. First, the DAB concluded that Shalala could not lawfully contract with the tribal organization to provide healthcare services to non-Indians under the ISDEA. See Pequot, 2006 WL 1337439, at *4–7. Second, the DAB determined that the tribal organization failed to comply with the Indian Health Care Improvement Act, 25 U.S.C. § 1680c(b)(“IHCIA”), which required the organization to determine that there were no reasonable alternative services available to meet the non-Indians pharmaceutical needs. See Pequot, 2006 WL 1337439, at *8–11. Third, the DAB held that no reasonable person could have concluded that alternative services were unavailable to meet the non-Indians pharmaceutical needs. See Pequot, 2006 WL 1337439, at *11–15. Thus, even if the tribal organization had conducted the requisite alternative-services analysis and determined that no alternative services existed, such a conclusion would have been unreasonable. See Pequot, 2006 WL 1337439, at *11–15. Fourth, and finally, the DAB determined that § 900.32 could not supply an independent basis for requiring Shalala to approve that portion of the proposed AFA, because that regulation is limited to programs that the HHS had previously funded. See Pequot, 2006 WL 1337439, at *15–17. In other words, the DAB concluded that, because the HHS had never funded the pharmaceutical program for non-Indians, § 900.32 did not apply. See Pequot, 2006 WL 1337439, at *15–17.
*27 At the end of the decision, the DAB noted:
[T]he successor AFA here was not “substantially the same” as the prior year AFA. As discussed earlier [the IHCIA] requires that a tribe’s governing body make a contemporaneous decision that no reasonable alternative services are available. Thus, each proposal can be viewed as substantively different from the prior proposal since each is necessarily based on a different decision. Moreover, the OIG report raised legal issues concerning the proposal which might not have been apparent to IHS when it approved the FY 1999 AFA.
Pequot, 2006 WL 1337439, at *17.
Sage, 100 F.Supp.3d at 1173–75 (citations omitted). The Court explained that the final sentence of the block-quoted paragraph from the Pequot opinion—“which states that ‘the OIG report raised legal issues concerning the proposal which might not have been apparent to IHS when it approved the FY 1999 AFA’—is the only line in the decision that can be construed as supporting the Defendants’ argument.” Sage, 100 F.Supp.3d at 1178 (quoting Pequot, 2006 WL 1337439, at *17). The Court said that, arguably, that line “suggests that the [HHS Secretary] may consider information beyond the proposed AFA’s text—like the Moss Adams Report and the NAIHS Report’s findings—in determining whether the [AFA] proposal is ‘substantially the same’ as its predecessor.” Sage, 100 F.Supp.3d at 1178 (quoting 25 C.F.R. § 900.32).

To the extent that § 900.32 is ambiguous, the Court will not afford Auer deference to Burwell’s interpretation of § 900.32 in the Pequot decision, because the Indian canon of deference trumps Auer deference in this case. Even if the Court afforded Burwell’s interpretation of § 900.32 Auer deference, that deference would not dictate a different outcome, because Burwell’s interpretation is “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905. The Court will therefore award summary judgment in favor of Sage Hospital on Count I.

A. THE INDIAN CANON OF DEFERENCE TRUMPS AUER DEFERENCE.
When an agency interprets its own regulations—to, for example, adjudicate whether a regulated party was in compliance with them—courts typically afford its interpretation Auer deference. Under Auer deference, the Court accepts the agency’s interpretation of its ambiguous regulation unless the regulation is “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905.28 In cases involving Native Americans, however, the Tenth Circuit has “taken a different approach to statutory interpretation, holding that normal rules of construction do not apply when Indian treaty rights, or even non-treaty matters involving Indians, are at issue.” Ramah Navajo Chapter v. Lujan, 112 F.3d at 1461 (internal quotation marks omitted). Although the Tenth Circuit has not decided whether Indian deference trumps Auer deference, it has said that Indian deference trumps Chevron deference—at least when it comes to interpreting the ISDEA’s ambiguous provisions. See Ramah Navajo Chapter v. Lujan, 112 F.3d at 1462 (“[T]he canon of construction favoring Native Americans controls over the more general rule of deference to agency interpretations of ambiguous statutes.”); id. (“If the [ISDEA] can reasonably be construed as the Tribe would have it construed, it must be construed that way.”). Relying on the ISDEA’s legislative history, the Tenth Circuit determined that its purpose was “to assure maximum participation by Indian tribes in the planning and administration of federal services, programs and activities for Indian communities.” 112 F.3d at 1461 (citations omitted)(internal quotation marks omitted). The Tenth Circuit concluded that “it would be entirely inconsistent with the purpose of the [ISDEA], as well as with the federal policy of Native American self-determination in general, to allow the canon favoring Native Americans to be trumped [by Chevron deference] in this case.” 112 F.3d at 1462. Given that Auer deference “is applied in the same manner as Chevron deference and is substantively identical,” Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Servs., 305 F.R.D. 256, 286 (D.N.M.2015)(Browning, J.), the Tenth Circuit’s holding in Ramah Navajo Chapter v. Lujan suggests that Indian deference trumps Auer deference in this case.

*28 The Defendants ask the Court to depart from this closely analogous authority and to instead rely on a series of cases which hold that Indian deference “is inapplicable when the competing interests at stake both involve Native Americans.” Response at 8 (quoting Cherokee Nation of Okla. v. Norton, 241 F.Supp.2d at 1380)(citing United States v. Jicarilla Apache Nation, 131 S.Ct. at 2328; N. Cheyenne Tribe v. Hollowbreast, 425 U.S. at 655 n. 7, 96 S.Ct. 1793; Chugach Alaska Corp. v. Lujan, 915 F.2d at 457 n. 4)(internal quotation marks omitted). There is no evidence, however, that there are American Indian interests on both sides of this case. First, unlike in Northern Cheyenne Tribe v. Hollowbreast, Utah v. Babbitt, and Cherokee Nation of Oklahoma v. Norton, neither the Navajo Nation nor any individual Navajos have intervened as a defendant in this case. See Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. at 666 n. 7, 96 S.Ct. 1806 (“[T]he contesting parties [we]re an Indian tribe and a class of individuals consisting primarily of tribal members.”); Utah v. Babbitt, 53 F.3d at 1147 (listing the Board of Trustees of the Utah Navajo Trust Fund, among others, as Plaintiffs–Appellees; the DOI, among others, as Defendants–Appellants; and the Navajo Nation as an Intervenor–Appellant); Cherokee Nation of Okla. v. Norton, 241 F.Supp.2d at 1375 (listing the Cherokee Nation of Oklahoma as the plaintiff and the Delaware Tribe of Indians, among others, as a defendant). Second, unlike in Chugach Alaska Corp. v. Lujan, there is no evidence that this case involves a finite amount of land or money, or that awarding Sage Hospital ISDEA funds would automatically lead to a decrease in ISDEA funding for other tribes or tribal organizations. See Chugach Alaska Corp. v. Lujan, 915 F.2d at 457 n.4 (“Only a limited amount of land will be given away; giving land to the Grouse Creek group diminishes the land available for other Native groups. Thus, the issue is not whether Native Americans will receive land, but which Native Americans will receive it.” (emphases omitted) (citation omitted)).29 Even assuming that Congress appropriates a set amount for ISDEA claims, and that awarding Sage Hospital ISDEA funding would lead to a smaller pot of money for other tribes and tribal organizations, that factor is presumably present in every ISDEA case. If that factor alone were enough to establish competing Indian interests, it would render the ISDEA’s instruction to defer to tribal organizations meaningless.

Third, the Defendants have presented no evidence that the American Indian interests which gave rise to their investigation of Sage Hospital are ongoing. The Defendants say that two pieces of evidence demonstrate that they are representing American Indian interests: (i) a resolution that the Ganado Chapter of the Navajo Nation passed at an October 8, 2013, meeting, which asked Sage Hospital to terminate its then-CEO, Ahmad Razaghi, on the basis of allegations that he and his staff were misusing ISDEA funds; and (ii) a letter that Jonathan Hale—the Chairman of the Health, Education, Education and Human Services Committee of the Navajo Nation Council—wrote to then-HHS Secretary Kathleen Sebelius, which asked the Defendants to investigate allegations that Sage Hospital was misusing ISDEA funds. See Response at 8 (citing Letter from Jonathan Hale, Chairman of the Health, Education and Human Services Committee of the Navajo Nation Council, to Kathleen Sebelius, Secretary of the U.S. Department of Health and Human...

 

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... Self–Determination Act contract and not to work with Sage Hospital to address IHS’ perceived problems at that hospital is decidedly not in the best interest of the Navajo nation or my constituents who rely on Sage Hospital for their healthcare.”); Butler Decl. ¶ 7, at 30 (“IHS’ decision not to renew Sage’s Self–Determination Act contract and not to work with Sage Hospital to address IHS’ perceived problems at that hospital is decidedly not in the best interest of the Navajo nation or the Navajo people.”); Jack Decl. ¶ 6, at 25–26 (including a similar statement); Smith Decl. ¶ 6, at 27–28 (including a similar statement). None of these declarations note that the Navajo Nation has lingering concerns about Sage Hospital. Any potential negative ramifications for other tribes or tribal organizations from this case are thus speculative, and the Court cannot conclude that “the competing interests at stake [in this case] both involve Native Americans.” Response at 8 (internal quotation marks omitted).

*29 In essence, the Defendants ask the Court to hold that any dispute over ISDEA funding which involves a tribe or tribal organization that Indians have criticized at any point in time for misusing ISDEA funds pits Indian against Indian. If that were correct, the Indian canon of deference would be largely nullified in declination disputes with the IHS, contrary to Congress’ intent and Tenth Circuit law. See 25 C.F.R. § 900.3(a)(5) (“Congress has further declared that each provision of the [ISDEA] and each provision of contracts entered into thereunder shall be liberally construed for the benefit of the tribes or tribal organizations....”); 25 C.F.R. § 900.3(b)(11) (“The Secretary’s commitment to Indian self-determination requires that [ISDEA] regulations be liberally construed for the benefit of Indian tribes and tribal organizations....”); Ramah Navajo Chapter v. Lujan, 112 F.3d at 1462 (“If the [ISDEA] can reasonably be construed as the Tribe would have it construed, it must be construed that way.”). In theory, the IHS could point to some American Indian interest implicated in every case to argue that Indian deference does not apply. As the Court detailed in the Sage opinion, the ISDEA’s legislative history is replete with references to agency malfeasance in the ISDEA contracting process. See Sage, 100 F.Supp.3d at 1179–81. Congress has amended the ISDEA multiple times to counteract the DOI’s and the HHS’ institutional inclination to unlawfully withhold ISDEA funding from tribes and tribal organizations. See Sage, 100 F.Supp.3d at 1180 (“[N]early every significant amendment that Congress has made to the ISDEA since its inception reflects a desire to curtail the DOI and HHS Secretaries’ authority to administer ISDEA contracts, and to expand tribes and tribal organizations’ authority to administer those contracts themselves.”). Given this history, the Court is reluctant to simply take the Defendants at their word that they are protecting Navajo interests in this case.

A better approach is one that requires the United States to present some evidence that there are American Indian interests on both sides of a case for the Indian canon of deference to not apply. For example, American Indian tribes, organizations, or individuals can intervene as defendants, or they can present depositions, declarations, or affidavits explaining that they seek or oppose the requested relief. Without something more, however, the Defendants’ lip service to Indian interests is insufficient for the Court to go far afield and apply a line of distinguishable precedent when Ramah Navajo Chapter v. Lujan is so closely analogous. To the extent that the phrase “substantially the same” in § 900.32 is ambiguous, the Indian canon of deference dictates that the Court interpret it in favor of Sage Hospital. The Court thus concludes that § 900.32 does not allow the HHS Secretary to consider information beyond a contract renewal proposal’s four corners in determining whether it is “substantially the same” as its predecessor. 25 C.F.R. § 900.32. Accordingly, the Defendants unlawfully applied the Declination criteria to the 2014 AFA.30

 

B. EVEN IF THE COURT APPLIED AUER DEFERENCE, BURWELL’S INTERPRETATION OF § 900.32 IS PLAINLY ERRONEOUS OR INCONSISTENT WITH THE ISDEA.
Pequot ‘s expansive interpretation of § 900.32 is plainly erroneous or inconsistent with the ISDEA. Section 900.32 states:
*30 Can the Secretary decline an Indian tribe or tribal organization’s proposed successor annual funding agreement?
No. If it is substantially the same as the prior annual funding agreement ... and the contract is with DHHS or the BIA, the Secretary shall approve and add to the contract the full amount of funds to which the contractor is entitled, and may not decline, any portion of a successor annual funding agreement. Any portion of an annual funding agreement proposal which is not substantially the same as that which was funded previously (e.g., a redesign proposal; waiver proposal; different proposed funding amount; or different program, service, function, or activity), or any annual funding agreement proposal which pertains to a contract with an agency of DOI other than the BIA, is subject to the declination criteria and procedures in [§ 450f(a)(2) ].
25 C.F.R. § 900.32 (bold in original). Section 900.32 makes clear that whether the HHS Secretary may apply the Declination criteria to a proposed successor AFA turns on the proposal’s contents, rather than on a holistic assessment of the tribe or tribal organization’s performance of the existing AFA that incorporates information from outside sources. Section 900.6 underscores this interpretation by defining an AFA narrowly as “a document that represents the negotiated agreement of the Secretary to fund, on an annual basis, the programs, services, activities and functions transferred to an Indian tribe or tribal organization under the Act.” 25 C.F.R. § 900.6 (emphasis added). See 25 C.F.R. § 900.12 (detailing the requirements for a proposed successor AFA, and stating that “[t]he proposal shall provide funding information in the same detail and format as the original proposal and may also identify any significant proposed changes” (emphasis added)). In other words, the HHS Secretary’s authority to apply the Declination criteria is limited to situations in which the “document,” 25 C.F.R. § 900.6—i.e., the proposed successor AFA—is not “substantially the same” as its predecessor, 25 C.F.R. § 900.30. Burwell’s interpretation of § 900.32 is thus plainly erroneous and inconsistent with the regulation.

Second, the ISDEA already provides a remedy for the HHS Secretary in these situations. Where the Secretary can establish that the tribe or tribal organization is violating its patients’ rights, endangering its patients’ health or safety, or committing gross negligence or mismanagement in handling ISDEA funds—i.e., exactly what the Defendants allege that Sage Hospital is doing—it can cancel the ISDEA contract. The ISDEA authorizes the Secretary to reassume unilaterally a contract on either an emergency or a non-emergency basis. See 25 C.F.R. § 900.246. An emergency reassumption is permitted when a tribe or tribal organization fails to fulfill the ISDEA contract’s requirements and that failure poses: (i) an immediate threat of imminent harm to any person’s safety; or (ii) an imminent substantial and irreparable harm to trust funds, trust lands, or interest in such lands. See 25 C.F.R. § 900.247. A non-emergency reassumption is permitted when there has been: (i) a violation of the rights, or endangerment of the health, safety, or welfare, of any person; or (ii) gross negligence or mismanagement in the handling or use of contract funds, trust funds, trust lands, or interest in trust lands under the contract. See 25 C.F.R. § 900.247.31 That the ISDEA provides a specific procedure for rescinding a contract where a tribe or tribal organization commits the malfeasance that the Defendants have accused Sage Hospital of committing underscores that HHS’ interpretation of § 900.32 is plainly inconsistent with the ISDEA. The Court will therefore not adopt that interpretation.32

 

C. THE DEFENDANTS UNLAWFULLY DECLINED THE 2013 RENEWAL.
*31 Section 900.33 prohibited the Defendants from declining the 2013 Renewal, because the 2013 Renewal did not contain a “material and substantial change to the scope or funding” of Sage Hospital’s PFSAs. 25 C.F.R. § 900.33. Section 900.33 says that proposals for term contract renewals are not subject to § 450f(a)(2)’s declination criteria “where no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the Indian tribe or tribal organization.” 25 C.F.R. § 900.33. The 2013 Renewal proposed the following amendments to the 2010 Contract—the added sections are underlined and the deleted sections are crossed out:
Article I, Section 2(B):
(B) In General. Each provision of the ISDA and each provision of this Contract shall be liberally construed for the benefit of Sage to transfer the funding and certain programs, functions, services, and activities (hereinafter “PFSAs”), or portions thereof, and associated resources, that are otherwise contractiable under section 102(a) of the ISDA (25 U.S.C. § 450f(a)), including all related administrative functions, from the Secretary to Sage.
Article II, Section 1:
SECTION 1—TERM. Pursuant to section 105(c)(1) of the ISDA (25 U.S.C. § 450j(c)(1)), the...

 

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... of the 2010 Contract that speak to the scope and funding of Sage Hospital’s PFSAs. Compare 2013 Renewal at 5–6, with 2010 Contract passim. Because the 2013 Renewal did not propose a substantial and material change to Sage Hospital’s PFSAs in the 2010 Contract, § 900.33 precluded the Defendants from applying § 450f(a)(2)’s declination criteria to it. Accordingly, the Defendants violated § 900.33 when it declined the 2013 Renewal.

To the extent that the Defendants argue that Pequot’s interpretation of the phrase “substantially the same” in § 900.32 applies with equal force to § 900.33, the Court rejects Burwell’s interpretation of § 900.33 for the same reasons that it rejected her interpretation of § 900.32. First, if there is any ambiguity in § 900.33’s language, Indian deference trumps Auer deference and the Court must read the ambiguity in favor of Sage Hospital. Second, even if Auer deference trumps Indian deference, Burwell’s interpretation of § 900.33 is plainly erroneous and inconsistent with the regulation.

Section 900.33 reads:
Are all proposals to renew term contracts subject to the declination criteria?
Department of Health and Human Services and the Bureau of Indian Affairs will not review the renewal of a term contract for declination issues where no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the Indian tribe or tribal organization.
*32 25 C.F.R. § 900.33 (bold in original). By using the words “has been proposed by,” § 900.33 indicates that the Defendants’ authority to decline a contract renewal proposal turns on the proposal’s contents rather than on information that an outside report uncovers about the tribal organization’s performance of the existing contract. 25 C.F.R. § 900.33. If § 900.33 provided the Defendants authority to consider such outside information in determining whether to apply § 450f(a)(2)’s declination criteria, it would read as follows:
Are all proposals to renew term contracts subject to the declination criteria?
Department of Health and Human Services and the Bureau of Indian Affairs will not review the renewal of a term contract for declination issues where there is no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the Indian tribe or tribal organization.
25 C.F.R. § 900.33. That § 900.33 contains no such language or deletions shows that whether a contract proposal is “substantially the same” as its predecessor turns only on the contract renewal proposal’s contents. 25 C.F.R. § 900.33 The Court therefore concludes that the Defendants unlawfully declined the 2013 Renewal.

 

D. THE COURT WILL DEEM THE 2013 RENEWAL AND 2014 AFA APPROVED, AND ORDER THE DEFENDANTS TO FULLY FUND THOSE PROPOSALS.
The Court will deem the 2013 Renewal and the 2014 AFA approved. The Defendants argue that the Court should not deem Sage Hospital’s contract proposals approved, but should instead order Burwell “to review Sage’s proposals and fund them according to ISDEAA Section 106(a) within 90 days of the date of the order.”...

 

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... of the Act.’ ” Response at 12 (quoting 25 C.F.R. § 900.18). The Defendants say that § 106, in turn, provides that the amount of funds under an ISDEA contact “ ‘shall not be less than the appropriate Secretary otherwise would have provided for the operation of the programs or portions thereof for the period covered by the contract’ ”—i.e., the Secretarial amount. Response at 12 (quoting 25 U.S.C. § 450j–1(a)(1)). The Defendants assert that Sage Hospital’s contract proposals “do not necessarily reflect that amount; the Secretary still has to review the proposal and determine the appropriate level of funding.” Response at 12.

The Honorable Rosemary M. Collyer, United States District Judge for the District of Columbia, rejected similar arguments in Seneca Nation of Indians v. Department of Health and Human Services. Seneca Nation had proposed an increase of $3,774,392.00 over the $7,802,211.00 that it had been awarded the year before—a 48% increase. See 945 F.Supp.2d at 137–39. The HHS argued—much as the Defendants argue here—that the tribe should not get a “windfall” because of a “procedural technicality,” 945 F.Supp.2d at 150; that such “windfall” would come at the expense of other tribal organizations, 945 F.Supp.2d at 151; that Judge Collyer should not get into the weeds on the validity of the tribe’s calculations, see 945 F.Supp.2d at 151–52; and that Judge Collyer should instead “evaluate the bargain the parties have struck through their Contract and operation of law,” 945 F.Supp.2d at 151–52. Judge Collyer rejected those arguments, stating:
*33 The Nation’s proposed amendment sought the Secretary’s agreement to increase the amount of funds it received under 25 U.S.C. § 450j–1(a)—that is, its “Section 106(a)” or “Secretarial” amount. As noted above, the ISDEAA does not state that the Secretarial amount becomes immutable once agreed upon for a given year; instead, it explicitly contemplates that self-determination contract funds “may, at the request of the tribal organization, be increased by the Secretary if necessary to carry out [the ISDEAA].” 25 U.S.C. § 450j–1(b)(5).
945 F.Supp.2d at 150 (alterations in opinion but not in quoted statute) (quoting 25 U.S.C. § 450j–1(b)(5)). Judge Collyer thus concluded that, when the HHS Secretary fails to comply with her contractual duties under the ISDEA, the tribe’s or tribal organization’s contract proposal “automatically becomes part of the parties’ Contract.” 945 F.Supp.2d at 152. See Yurok Tribe v. Dep’t of the Interior, 785 F.3d at 1408 (“In effect, if the Secretary does not timely respond to a[n ISDEA] proposal, the proposal is deemed approved and the Secretary is directed to award a contract based on the terms of the proposal.” (emphasis added)); Crownpoint, slip op. at 25 (deeming approved three ISDEA contract proposals).

The Court agrees with and will adopt Judge Collyer’s approach. The Court would add only that the policy underlying the ISDEA supports her holding. When Congress enacted the ISDEA, it recognized that “the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government.” 25 U.S.C. § 450(a)(1). The Defendants’ proposed approach would hinder tribes and tribal organizations rather than help them. Without requiring federal agencies to fully fund the tribe’s or tribal organization’s contract proposal, the ISDEA would have no teeth. If federal agencies knew that they could unlawfully decline or fail to timely respond to a contract proposal, and that the only repercussion would be maintaining the prior year’s funding level—or forcing a tribe or tribal organization back to the negotiating table yet again—there would be no reason for the agencies to ever approve a successor contract proposal. Tribes and tribal organizations would thus be forced to go through endless rounds of negotiations over the appropriate funding amounts with no way of enforcing their proposals, thus nullifying the streamlined ninety-day contract-approval process that the ISDEA sets forth. The Court will not force tribes and tribal organizations to participate in such a fruitless exercise. The ISDEA’s text and its legislative history demonstrate that the Court’s sole remedy when a federal agency unlawfully declines contract proposal is to order the agency to fully fund the proposal.

 

III. THE COURT WILL GRANT SUMMARY JUDGMENT FOR SAGE HOSPITAL ON COUNT II.
Granting summary judgment in Sage Hospital’s favor on Count I does not moot Count II. Although the 2015 AFA is not substantially the same as the 2013 AFA, the Defendants have not presented any evidence to show a genuine dispute of material fact whether they properly applied the Declination criteria to the 2015 AFA. Moreover, the Defendants violated the ISDEA when they declined the 2014 Renewal, because it is substantially the same as...

 

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... 900.32. Section 900.33 of the ISDEA states that “[a]ny portion of an annual funding agreement proposal which is not substantially the same as that which was funded previously (e.g., a redesign proposal; waiver proposal; different proposed funding amount; or different program, service, function, or activity), ... is subject to the declination criteria....” 25 C.F.R. § 900.33. Section 900.33 thus permitted the Defendants to apply the ISDEA’s Declination criteria to the portion of the 2015 AFA’s funding request beyond the 2013 AFA’s funding level of $18,044,042.00—i.e., $14,570,874.00.

*35 Upon satisfying § 900.33’s threshold requirements, the HHS Secretary may decline a contract proposal only based on one of these five reasons:
(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;
(B) adequate protection of trust resources is not assured;
(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;
(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 450j–1(a) of this title; or
(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities, ... because the proposal includes activities that cannot lawfully be carried out by the contractor.
25 U.S.C. § 450f(a)(2). See 25 C.F.R. § 900.22 (setting forth the same declination criteria). The Secretary must justify his or her contract declination decision “by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof).” 25 U.S.C. § 450f(e)(1).

The 2d Declination declined the 2015 AFA on two grounds: (i) “the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory,” 25 U.S.C. § 450f(a)(2)(A); and (ii) “the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract,” 25 U.S.C. § 450f(a)(2)(C). The Defendants have failed to create a genuine dispute of material fact under either (i) or (ii). Consequently, the Court will grant summary judgment in favor of Sage Hospital on Count II.

In the Sage opinion, the Court explained the deficiencies with the evidence which the Defendants submitted in support of the 2d Declination and what evidence the Defendants needed to present survive summary judgment:
First, the Defendants will likely fail to “clearly demonstrat[e],” 25 U.S.C. §...

 

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... of backflow prevention; no safe secondary water source; disconnection of the centralized boiler system; multiple blocked electric panels; multiple unguarded electronic circuit breakers; and multiple power strips (surge protectors) which had been interconnected.
*36 1st Declination at 8. As this paragraph mentions nothing about Sage Hospital’s ability to provide satisfactory care to its patients, it is also inapplicable. Only three of the 1st Declination’s nineteen adverse findings mention the quality of Sage Hospital’s healthcare services:
During the course of the contract, services have been eliminated (ophthalmology, general surgery, Sanders Dental Clinic, obstetrical care, pediatrics, and podiatry), which has negatively impacted the delivery of health care to Indian beneficiaries.
The Board has allowed the Purchased/Referred Care program to operate in violate of federally mandated regulations regarding program requirements. The failure of the program to have a plan that describes the process for accessing such care, the medical priorities, the annual budget for referred care, the appeals process, and a system for tracking deferred services disadvantages patients who seek such care.
The Board has failed to authorize sufficient funds to maintain a functional health information system for electronic health records to meet patient care information requirements. This failure contributes to the loss of potential revenue and impedes the delivery of satisfactory health care services to patients.
1st Declination at 8.
As an initial...

 

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... at Sanders, AZ, but that facility was dilapidated and unsanitary.... Sage, with IHS’ agreement, provided those dental services both at Sage’s Ganado facility ... and at a satellite facility at Greasewood, AZ.
Razaghi 2nd Decl. ¶ 12 at 24–25. It appears that Sage Hospital reinstated its dental and podiatry services with the 2010 Contract, and has continued to provide those services ever since then. See 2013 AFA at 9 (listing podiatry and dental care among Sage Hospital’s PFSAs). The Defendants have offered no evidence to the contrary.
*37 Sage Hospital has not provided the other services—general surgery, obstetric care, ophthalmology, and pediatrics—since 2007. Neither the 2013 Renewal nor the 2014 AFA, however, include those services in Sage Hospital’s PFSAs. A tribe or tribal organization’s elimination of services that are not a part of its ISDEA proposal can cut one of two ways. It may demonstrate that the tribe or tribal organization is falling apart and that the problems that plagued the eliminated services will likely soon spread to the proposed PFSAs. On the other hand, it may allow the tribe or tribal organization to divert more resources to the contracted PFSAs to improve patient care in those areas. The evidence in the record shows that Sage Hospital’s elimination of services fell into the latter category: it was a key component of Sage Hospital’s turnaround effort and allowed the hospital to stabilize and ultimately improve the quality of patient care for its contracted PFSAs. See Razaghi 2nd Decl. ¶ 9, at 23. In light of Sage Hospital’s success in the intervening years since eliminating those services, and the lack of evidence suggesting that the elimination of those services would affect its contracted PFSAs in the 2013 Renewal and the 2014 AFA, the first paragraph does not demonstrate that “the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory.” 25 U.S.C. § 450f(a)(2)(A).
The second and third paragraphs suffer from a different flaw. Each pairs a fact that the NAIHS Report or Moss Adams Report supports—e.g., “the Board has failed to authorize sufficient funds to maintain a functional health information system for electronic health records”—with a conclusory statement about that fact’s impact on the quality of Sage Hospital’s healthcare services. As far as the Court can tell, there is no evidence in the record to support these statements. The 1st Declination does not point to any evidence in support of these conclusory statements. The Moss Adams Report says nothing about the quality of Sage Hospital’s...

 

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... were unable to get access to some services as in the past. There were also concerns that a lot of good doctors have left [Sage Hospital] employment.” NAIHS Report at 24. The NAIHS Report states that these sentences are summaries of the NAIHS’ interviews of two “community members representing the Ganado and Cornfields Chapters,” who apparently “requested to be interviewed.” NAIHS Report at 24. Aside from these three sentences, the NAIHS has not offered—and the Court has been unable to find—any other evidence to indicate that Sage Hospital provides unsatisfactory healthcare services to its patients.
These findings are insufficient to “clearly demonstrat[e],” 25 U.S.C. § 450f(e)(1), at the summary judgment stage or at trial that “the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory,” 25 U.S.C. § 450f(a)(2). The Court is reluctant to rely on the NAIHS’ unsworn summary of its interviews with two “community members” who are relaying third- or fourth-hand information from purported patients of Sage Hospital. At a minimum, the NAIHS should provide this information in the form of reliable evidence—e.g., sworn affidavits or witness testimony—from the patients themselves. Additionally, it is hard for the Court to determine whether Sage Hospital’s healthcare services “will be satisfactory,” 25 U.S.C. § 450f(a)(2), without some indication of how Sage Hospital stacks up against its peers. The NAIHS should provide, for example, evidence that a state or federal agency recently refused to certify Sage Hospital for providing substandard care; testimony or sworn affidavits from expert witnesses explaining the standard for patient care in hospitals in general—or among hospitals that serve American Indian tribes in particular—and why Sage Hospital’s care falls below that standard; or testimony or sworn affidavits from patients comparing their recent experiences receiving treatment at Sage Hospital to experiences at other hospitals. Simply put, the Court would need more than bare conclusory allegations about the quality of Sage Hospital’s healthcare services to uphold the NAIHS’ declination decisions under § 450f(a)(2).
*38 ....
[Second,] the Defendants likely will not be able to establish that “the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract.” 25 U.S.C. § 450f(a)(2)(C). Although the 1st Declination is filled with allegations that Sage Hospital has allowed its programs to operate “in violation...

 

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... present the requisite evidence to show a genuine dispute of material fact on Count II.34 The Court will thus deem the 2015 AFA approved.

 

C. THE 2014 RENEWAL IS SUBSTANTIALLY THE SAME AS THE 2010 CONTRACT.
The 2d Declination explains that the Defendants declined the 2014 Renewal for the same reasons that it declined the 2013 Renewal. See 2d Declination passim. The 2014 Renewal appears to offer no modifications to the provisions of the 2010 Contract that speak to the scope and funding of Sage Hospital’s PFSAs. Compare 2014 Renewal at 7–9, with 2010 Contract passim. As the HHS Secretary cannot decline a contract renewal proposal “where no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the Indian tribe or tribal organization,” 25 C.F.R. § 900.33, the Defendants violated § 900.33 when it declined the 2014 Renewal. The Court will therefore deem the 2014 Renewal approved.

 

D. EVEN IF THE DEFENDANTS PROPERLY DECLINED THE 2014 RENEWAL AND THE 2015 AFA, THE DEFENDANTS VIOLATED § 900.30 OF THE ISDEA WHEN THEY FAILED TO OFFER SAGE HOSPITAL TECHNICAL ASSISTANCE IN THE 2d DECLINATION.
*40 The Defendants contend that the language in the 2d Declination is standard and “used by IHS in most declinations.” Response at 10. The Defendants add that, although the Court faulted the IHS for putting “ ‘the onus on Sage Hospital to identify what assistance it needed,’ the ISDEAA and its regulations in fact do place the onus on the tribal organization to identify what assistance is needed.” Response at 10 (emphasis in original). According to the Defendants, the ISDEA required them to provide technical assistance to Sage Hospital only “ ‘upon the request of any tribal organization and subject to the availability of appropriations.’ ” Response at 10 (quoting 25 U.S.C. § 450h(d)(3))(citing 25 C.F.R. § 900.28 (describing the HHS Secretary’s duty as providing “any necessary requested technical assistance” to avoid declination); 25 C.F.R. § 900.30 (same)). The Court disagrees.

Section 900.30’s plain language requires the Defendants to offer technical assistance to overcome the stated objections in the 2d Declination. Section 900.30 states:
When the Secretary declines all or a portion of a proposal, is the Secretary required to provide an Indian tribe or tribal organization with technical assistance?
Yes. The Secretary shall provide additional technical assistance to overcome the stated objections, in accordance with section 102(b) of the Act, and shall provide any necessary requested technical assistance to develop any modifications to overcome the Secretary’s stated objections.
25 C.F.R. § 900.30 (bold in original)(emphasis added). If the Defendants only had to provide technical assistance upon request, there would be no reason to specify in the second half of the regulation that they must also provide any “necessary requested technical assistance.” 25 C.F.R. § 900.30. The ISDEA thus required the Defendants to offer to provide Sage Hospital technical assistance to overcome the stated objections.

The 2d Declination...

 

*** Start Section
... monitoring visit for this Contract by the head of each operating division, departmental bureau, or departmental agency, or duly authorized representative of such head unless—
2014 Renewal at 7–8. Accordingly, these provisions are inconsistent with the 2013 Renewal and control Sage Hospital’s contractual relationship with the Defendants after September 30, 2014. The 2013 Renewal is thus in effect from October 1, 2013, to September 30, 2014, and the 2014 Renewal is in effect from October 1, 2014, through September 30, 2017.

IT IS ORDERED that the Plaintiff’s Motion for Summary Judgment on its First Three Claims for Relief, with Memorandum of Supporting Points and Authorities, filed June 1, 2015 (Doc. 68), is granted. The Renewal No. 1 and Amendment No. 1 to the Indian Self–Determination Act Contract Between Navajo Health Foundation/Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–3), is in effect from October 1, 2013, to September 30, 2014. The Renewal No. 1 and Amendment No. 1 to the Indian Self–Determination Act Contract Between Navajo Health Foundation/Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–10), is in effect from October 1, 2014, through September 30, 2017. The Annual Funding Agreement Between Navajo Health Foundation-Sage Memorial Hospital, Inc., and The Secretary of the Department of Health and Human Services Fiscal Year 2014, filed January 13, 2015 (Doc. 21–3), was in effect from October 1, 2013, through September 30, 2014. The Annual Funding Agreement Between Navajo Health Foundation—Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–10), is in effect from October 1, 2014, through September 30, 2015. The Court will also determine Sage Hospital’s damages for Counts I to III of the Second Amended Complaint, filed June 30, 2015 (Doc. 79), on the trial date.

All Citations
--- F.Supp.3d ----, 2015 WL 9777785

Footnotes
1	On February 10, 2015, Robert McSwain became Acting Director of Indian Health Services. He will, therefore, be substituted for Yvette Roubideaux as a defendant in this action. See Fed.R.Civ.P. 25(d)(1) (permitting such substitutions).
†	The Court issued a Memorandum Opinion and Order, filed August 31, 2015 (Doc. 96)(“MOO”), granting the Plaintiff’s Motion for Summary Judgment on its First Three Claims for Relief, with Memorandum of Supporting Points and Authorities, filed June 1, 2015 (Doc. 68)(“Motion”). On September 4, 2015, Sage Hospital submitted a letter to the Court stating: Having obtained the concurrence of Ms. Grohman, counsel for the Defendants, I am writing to suggest correction of typographical or clerical mistakes in the Memorandum Opinion and Order issued August 31, 2015. Given the significance of the Opinion and the likelihood that it will be published, I believe that the name “Bacenti” should be changed to “Becenti” on pages 63 and 64 of the slip opinion and that references to “Sage Hospital’s sole response” in footnotes 16 and 20–24 be changed to “Defendants’ sole response.” Letter from Paul E. Frye, Counsel for Plaintiff, to Hon. James O. Browning, filed September 4, 2015 (Doc. 97)(the “Frye Letter”). To correct the typographical mistakes identified in the Frye Letter, the Court issues this Amended Memorandum Opinion and Order (“AMOO”). As the Frye Letter suggests, the Court has changed references to “Sage Hospital’s sole response” to “Defendants’ sole response,” as footnotes 16 and 20–24 of this AMOO reflect. The Frye Letter incorrectly states, however, that the MOO used the name “Bacenti” on pages 63 and 64; the Court used the name “Becanti” and only on page 64. The Court has therefore changed the name “Becanti” to “Becenti” on page 64, as this AMOO reflects.
2	In the Sage opinion, the Court issued a preliminary injunction which required the Defendants to fund Sage Hospital according to the terms of: (i) the Annual Funding Agreement Between Navajo Health Foundation/Sage Memorial Hospital and the Secretary of the Department of Health and Human Services Fiscal Year 2013, filed January 13, 2015 (Doc. 21–2)(“2013 AFA”); and (ii) the Indian Self–Determination Contract Between Navajo Health Foundation/Sage Memorial Hospital and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21–1) (“2010 Contract”), until this case is resolved on the merits. Sage, 100 F.Supp.3d at 1125–27. The Court also ordered both parties to comply with the terms and conditions of the 2013 AFA and the 2010 Contract until this case is resolved on the merits. See Sage, 100 F.Supp.3d at 1125–27.
3	Because this Memorandum Opinion and Order disposes of Counts I through III of the SAC, only Count V remains. The Court’s reference to trial is not meant to suggest or imply a ruling on any future motion for summary judgment on Count V. To the extent that Count V remains after the summary-judgment stage, the Court will determine Sage Hospital’s damages for Counts I through III and adjudicate Count V at trial.
4	A tribal organization is the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or grant.... 25 U.S.C. § 450b(l)(emphasis in original).
5	The IHS is a division of the Department of Health and Human Services that is the principal health care provider for members of federally recognized American Indian tribes. See Indian Health Service, Wikipedia.org, http://en.wikipedia.org/wiki/Indian_Health_Service (last visited Feb. 3, 2015). The Navajo Area IHS Office (“NAIHS”) is a regional IHS office that is “primarily responsible for healthcare to members of The Navajo Nation and Southern Band of San Juan Paiutes, but care to other Native Americans (Zuni, Hopi) is also provided.” Navajo Area, Indian Health Service: The Federal Health Program for American Indians and Alaska Natives, http://www.ihs.gov/navajo/ (last visited Mar. 24, 2014). Occasionally, the parties say that the IHS declined Sage Hospital’s contract proposals. The ISDEA provides that only the HHS or DOI Secretary has the authority to decline such proposals, see 25 U.S.C. § 450f(a), but there is no evidence that Burwell was directly involved in any of the declination decisions in this case. It is therefore more accurate to say that Defendants Robert McSwain, John Hubbard, Jr., and Frank Dayish declined those proposals on behalf of Burwell. When citing or quoting the parties’ briefing, the Court will use whichever entity or individual that the parties use. In the Analysis, however, the Court will use “the Defendants” to describe the group of individuals that declined Sage Hospital’s ISDEA contract proposals and is legally responsible for those declination decisions, when, in fact, McSwain, Hubbard, Jr., and Dayish declined those proposals on Burwell’s behalf.
6	The ISDEA authorizes the United States of America to enter into contracts with American Indian tribes in which the tribe agrees to supply federally funded services that a federal agency normally would provide. See 25 U.S.C. § 450f(a).
7	Because many of the parties’ exhibits either do not have their own internal pagination, or use inconsistent pagination conventions, the Court will use CM/ECF’s pagination—i.e., the number in the upper-right hand corner of each document—for pincites to the parties’ briefing and exhibits, unless the Court notes otherwise.
8	In setting forth its proposed undisputed facts, the Motion cites the FAC and the Answer. On June 30, 2015—29 days after filing the Motion—Sage Hospital filed the Notice of Filing Second Amended Complaint (Doc. 78)(“SAC Notice”), and the Second Amended Complaint (Doc. 79) (“SAC”). The SAC Notice states that the Defendants “have given their written consent to the filing of the Second Amended Complaint, stating, however, that such consent does not signify that defendants concur in the new allegations.” SAC Notice at 1. Seventeen days later, the Defendants filed the Answer to the Second Amended Complaint and Counterclaim (Doc. 84) (“SAC Answer”). Neither party has suggested that the Court use the SAC and the SAC Answer in resolving the Motion. For the sake of thoroughness, however, the Court has reviewed the FAC, the Answer, the SAC, and the SAC Answer, and has concluded that the allegations in the FAC upon which the Motion relies for its undisputed facts—and the corresponding admissions and denials of those facts in the Answer—are identical to those set forth in the SAC and the SAC Answer, respectively. As far as the Court can tell, there are only two substantive difference between the FAC and the SAC: (i) the SAC adds a fifth claim against the Defendants entitled “Damages for Unlawful Denial of Sage’s Contract Support Cost,” SAC ¶¶ 73–80, at 32–33; and (ii) the SAC adds an eighth prayer for relief, which asks the Court to “revers[e] the deemed denial of Sage’s Contract Support Costs Claim and awarding damages and other relief based on said Claim as requested in paragraph E above,” SAC ¶ G at 34–35.
...

 

10	Sage Hospital asks the Court to find undisputed that “Sage proposed a budget for FY 2014 of $20,738,846, Lodging (Dkt. 21) at 66, a modest increase over the prior year’s, see Sage, [100 F.Supp.3d at 1130] 2015 WL 1906107 at *5 ¶ 35.” Motion ¶ 15, at 6. The Defendants reply: Defendants do not dispute that Sage requested funding for Fiscal Year 2014 in the amount of $20,738,846. The record does not support, however, Sage’s characterization of the request for funding as a “budget,” or its characterization of the request as a “modest” increase from the prior year. See Doc. 21–3 at 3 (using neither the word “budget” nor “modest”). Defendants therefore dispute those characterizations. Response ¶ 15, at 3. The Court agrees with the Defendants for two reasons. First, the Aug. 22, 2013, Ltr.—the first source upon which Sage Hospital relies for its stated assertion—does not characterize Sage Hospital’s funding request as either a “budget” or “modest.” Aug. 22, 2013, Ltr. at 3. Second, although the Court has previously characterized the increase in Sage Hospital’s funding request from the 2013 AFA to the 2014 AFA as “modest,” Sage, 100 F.Supp.3d at 1130–31, that opinion made findings of fact for the purposes of issuing a preliminary injunction, which do not bind the Court at the summary judgment stage. The Honorable Shira A. Scheindlin, United States District Judge for the Southern District of New York, has explained: the Court’s findings of fact and conclusions of law made on a motion for preliminary injunction are not binding on the Court when deciding a motion for summary judgment. This is because the “parties are held to different standards of proof in preliminary injunction hearings than in motions for summary judgment and because findings of fact at the preliminary injunction stage are not as fully fleshed out as at the summary judgment stage....” Malletier v. Dooney & Bourke, Inc., 561 F.Supp.2d 368, 382 (S.D.N.Y.2008) (quoting DeSmeth v. Samsung Am., No. CIV 92–3710 SAS, 1998 WL 315469, at *2 (S.D.N.Y. June 16, 1998)). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)(explaining that a court’s findings of fact and conclusions of law issues at preliminary injunction stage are not binding in later proceedings). Accordingly, the Court will omit Sage Hospital’s characterizations of its funding request as “modest” and the word “budget” from its proposed fact and deem the remainder of Sage Hospital’s proposed fact undisputed. Sage Hospital also asks the Court to find undisputed that “Sage’s proposed 2014 AFA is substantially the same as the approved 2013 AFA, having identical PFSAs.” Motion ¶ 15, at 6. The Defendants respond: “The first sentence of Sage’s Proposed Fact No. 15 is a legal, not a factual, conclusion.” Response ¶ 15, at 3. The Court agrees with the Defendants. Whether the Defendants properly applied 25 U.S.C. § 450f(a)(2)’s declination criteria to the 2014 AFA turns on whether it “is substantially the same as the approved 2013 AFA.” Motion ¶ 15, at 6. If the 2014 AFA was substantially the same as its predecessor, 25 C.F.R. § 900.32 precluded the Defendants from applying § 450f(a)(2)’s declination criteria to that proposal. See 25 C.F.R. § 900.32. On the other hand, if the 2014 AFA was not substantially the same as its predecessor, § 900.32 permitted the Defendants to apply § 450f(a)(2)’s declination criteria to it. See 25 C.F.R. § 900.32. Accordingly, Sage Hospital’s proposed fact is a legal conclusion and not a fact. The Court will therefore not adopt Sage Hospital’s proposed fact, but will instead address the issue in its Analysis.
11	The Defendants dispute the first sentence of Sage’s Proposed Fact No. 16 because the Indian Health Service (IHS) disapproved Sage’s proposed three-year contract renewal when it issued the declination letter of September 26, 2014. Doc. 62 ¶ 99. To the extent Sage’s “fact” is intended to convey its position as to the legality of this disapproval under applicable law, it is a legal conclusion, not an undisputed material “fact.” The second sentence of Sage’s Proposed Fact No. 16 is undisputed. Response ¶ 16, at 3. Unlike the Defendants, the Court construes Sage Hospital’s proposed fact as asserting that the Defendants did not approve or disapprove Sage Hospital’s proposal at that time—or, put another way—the Defendants did not approve or disapprove the proposal until September 26, 2014. Moreover, Sage Hospital’s proposed fact does not appear to convey its position that the disapproval was unlawful. Accordingly, the Court will adopt Sage Hospital’s proposed fact, but modify it to reflect that the Defendants did not approve or disapprove the 2013 Renewal until September 26, 2014.
...

 

28	A number of the current Justices on the Supreme Court have challenged Auer’s logical underpinnings as being on much shakier grounds than those of Chevron deference. Justice Scalia, after years of applying the doctrine followed by years of gradually beginning to question its soundness, finally denounced Auer deference in his dissent in Decker v. Northwest Environmental Defense Center, ––– U.S. ––––, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013). The Court cannot describe the reasons for Justice Scalia’s abandonment of the doctrine better than the Justice did: For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co., [564 U.S. 50] 131 S.Ct. 2254, 2265, 180 L.Ed.2d 96 (2011)(Scalia, J., concurring). This is generally called Seminole Rock or Auer deference. The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains. Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever—just the ipse dixit that “the administrative interpretation ... becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Our later cases provide two principal explanations, neither of which has much to be said for it. First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. The implied premise of this argument—that what we are looking for is the agency’s intent in adopting the rule—is false. There is true of regulations what is true of statutes. As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them. The other rationale our cases provide is that the agency possesses special expertise in administering its “ ‘complex and highly technical regulatory program.’ ” That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations—unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its “special expertise” to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule—to “say what the law is.” Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his “special expertise” to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the “special expertise” of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best. Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd. But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands. “When the legislative and executive powers are united in the same person ... there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, at 151–152 (O. Piest ed., T. Nugent transl.1949). Congress cannot enlarge its own power through Chevron—whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way—the competing political branch—is the less congenial repository of the power as far as Congress is concerned.) So Congress’s incentive is to speak as clearly as possible on the matters it regards as important. But when an agency interprets its own rules—that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive effect. “It is perfectly understandable” for an agency to “issue vague regulations” if doing so will “maximiz[e] agency power.” Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 Wm. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, at 543–544 (Alexander Hamilton)(J. Cooke ed.1961). Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.” Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency’s view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement. In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation. Decker v. Nw. Envtl. Def. Ctr., 133 S.Ct. at 1339–42 (Scalia, J., dissenting). Justice Scalia’s attack on Auer was in a dissent, but two other Justices, the Honorable John G. Roberts and Samuel A. Alito, joined in a concurring opinion stating that “[i]t may be appropriate to reconsider [Auer deference] in an appropriate case. But this is not that case.” 133 S.Ct. at 1338 (Roberts, C.J., concurring). Although the Court shares Justice Scalia’s concerns about Auer deference, it is, for the time being, the law of the land, and, as a federal district court, the Court must apply it. Accordingly, were this case brought under another statute rather than the ISDEA, the Court would have to accord Auer deference to the HHS Secretary’s interpretation of § 900.32.
29	The Defendants also quote a single line from United States v. Jicarilla Apache Nation in support of their argument. See Response at 8 (quoting United States v. Jicarilla Apache Nation, 131 S.Ct. at 2318 (“The Government may also face conflicting obligations to different tribes or individual Indians.”)). Although the Defendants’ quotation is accurate, the case from which it is taken says nothing about Chevron, Auer, or Indian deference, and says nothing about interpreting ambiguous statutes or regulations. Accordingly, the Defendants’ cherry-picked quotation from United States v. Jicarilla Apache Nation does not lead to a different result in this case.
30	The Supreme Court has also said that Auer deference is “unwarranted when there is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Christopher v. SmithKline Beecham Corp., ––– U.S. ––––, 132 S.Ct. 2156, 2166, 183 L.Ed.2d 153 (2012) (citation omitted)(internal quotation marks omitted). The Secretary’s interpretation of § 900.32 was set forth at the end of an administrative hearing decision: [T]he successor AFA here was not “substantially the same” as the prior year AFA. As discussed earlier [the IHCIA] requires that a tribe’s governing body make a contemporaneous decision that no reasonable alternative services are available. Thus, each proposal can be viewed as substantively different from the prior proposal since each is necessarily based on a different decision. Moreover, the OIG report raised legal issues concerning the proposal which might not have been apparent to IHS when it approved the FY 1999 AFA. Pequot, 2006 WL 1337439, at *17 (emphasis added). Given that the purported interpretation of § 900.32 is set forth in a single sentence which cites no authority and does not expressly state that the HHS can look beyond a successor AFA’s four corners in determining whether it is substantially the same as its predecessor, the Court is reluctant to conclude that it “reflect[s] the [HHS’] fair and considered judgment on the matter in question.” Christopher v. SmithKline Beecham Corp., 132 S.Ct. at 2166.
31	The Defendants have also argued that the Court’s interpretation of § 900.32 would prevent them from applying the Declination criteria’s “enforcement mechanism for violations of the financial-management, procurement-management, and property-management requirements set forth at 25 C.F.R. §§ 900.33–60.” Response at 9 n.2. The Court disagrees. The Court’s interpretation of § 900.32 would prevent the application of the Declination criteria only where the proposed successor AFA’s contents are substantially the same as its predecessor’s; the Defendants are free to apply that “enforcement mechanism” whenever a tribe or tribal organization has proposed a material change in funding or PFSAs. That the contract rescission process allows the Defendants to cancel an ISDEA contract in more extreme situations—even when the contract proposal is “substantially the same” as its predecessor—suggests that the Declination criteria is limited to situations when the proposal’s contents are not substantially the same as its predecessor’s. Otherwise, there would be no reason for the ISDEA’s Reassumption and Rescission process, because the ISDEA’s Declination criteria sets forth a lower threshold for declining a contract. Defendants assert the Court’s interpretation of § 900.32 would “lead to absurd results in other contexts as well.” Response at 10 n.2. The Defendants state: For example, suppose IHS awarded a contract to a tribal organization to operate a hospital, and IHS learns that the tribal program is not operating three of the four programs for which it had been funded. Under Sage’s reasoning, the IHS would be precluded from issuing a partial declination as long as, in the subsequent year, the tribal organization submitted a renewal proposal that was substantially the same on its face. Response at 10 n.2. The Defendants’ concern is unfounded, because such a situation would likely implicate the ISDEA’s non-emergency reassumption provision—which allows the Defendants to cancel the ISDEA contract if the tribe or tribal organization commits gross negligence or mismanagement in the handling or use of contract funds, trust funds, trust lands, or interest in trust lands under the contract. See 25 C.F.R. § 900.47. That the ISDEA sets forth a separate procedure for canceling contracts in such circumstances underscores that whether a proposed AFA is “substantially the same” as its predecessor under § 900.32 turns on the proposal’s contents rather than a holistic assessment of the tribal organization’s performance of the ISDEA contract.
32	The Supreme Court has instructed that, when Auer deference is unwarranted, Court’s should instead apply Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)(“Skidmore ”), deference. See Christopher v. SmithKline Beecham Corp., 132 S.Ct. at 2169. Under Skidmore deference, the Court must give Burwell’s interpretation a measure of deference proportional to the “ ‘thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’ ” United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). The concerns which led the Court to conclude that Burwell’s interpretation of § 900.32 is plainly erroneous and inconsistent with the regulation apply with equal force under Skidmore deference. Moreover, the interpretation does not appear to be thoroughly considered. It was set forth in one sentence—which does not cite any authority—in a fourth alternative holding in an administrative hearing decision. The decision itself also does not explicitly say that the IHS can consider information beyond a proposal’s four corners in determining whether it is “substantially the same” as its predecessor, 25 C.F.R. § 900.32. Instead, it merely implies that interpretation by suggesting that the OIG report made the proposal not substantially the same. Although the HHS Secretary has advanced her interpretation in the legal briefs in this case, she has not offered any arguments suggesting that the interpretation of § 900.32 in the Pequot decision was thoroughly considered. There are also no other factors which “give [that interpretation] the power to persuade.” United States v. Mead Corp., 533 U.S. at 228, 121 S.Ct. 2164 (internal quotation marks omitted) (citation omitted).