Gila River Indian Community v. U.S. Dept. of Veterans Affairs ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILA RIVER INDIAN COMMUNITY, a No. 17-15629
federally recognized Indian tribe;
GILA RIVER HEALTH CARE D.C. No.
CORPORATION, a wholly owned and 2:16-cv-00772-
subordinate entity of the Gila River ROS
Indian Community,
Plaintiffs-Appellants,
OPINION
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS; ROBERT A.
MCDONALD, Former Secretary,
United States Department of
Veterans Affairs,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted April 11, 2018
San Francisco, California
Filed August 15, 2018
Before: Andrew J. Kleinfeld, William A. Fletcher,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge W. Fletcher
2 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
SUMMARY*
Subject Matter Jurisdiction / Veterans / Tribal Matters
The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(1) dismissal for lack of subject matter jurisdiction of
Gila River Indian Community and Gila River Health Care
Corporation’s lawsuit against the Department of Veterans
Affairs for failing to reimburse the Community for the care it
provides to veterans at tribal facilities.
The panel held that § 511(a) of the Veterans’ Judicial
Review Act, 38 U.S.C. § 511(a), barred the Community’s
lawsuit. The Community sought review of the VA’s
determination that two provisions of the Patient
Protection and Affordable Care Act – 25 U.S.C. §§ 1623(b)
and 1645(c) – did not require the VA to reimburse the
Community absent a sharing agreement. The panel held that
this determination fell under the jurisdictional bar of § 511(a)
because it was plainly a question of law that affected the
provision of benefits by the Secretary of the VA to veterans,
and the relief requested could clearly affect the provision of
benefits.
The panel held that the presumption in Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (holding
that statutes are to be construed liberally in favor of the
Indians), did not apply to § 511(a) because the Blackfeet
Tribe presumption only applied to federal statutes that were
passed for the benefit of Indian tribes. The panel also held
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GILA RIVER INDIAN CMTY. V. DEP’T OF V.A. 3
the Community’s argument that the district court had
jurisdiction under 28 U.S.C. § 1362 was waived because the
Community did not make this argument in the district court.
COUNSEL
Thomas L. Murphy (argued) and Linus Everling, Gila River
Indian Community, Sacaton, Arizona; Robert R. Yoder,
Yoder & Langford P.C., Scottsdale, Arizona; for Plaintiffs-
Appellants.
Laura Myron (argued) and Charles W. Scarborough,
Appellate Staff; Elizabeth A. Strange, Acting United States
Attorney; Chad A. Readler, Acting Assistant Attorney
General; Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
The Gila River Indian Community and Gila River Health
Care Corporation (collectively, “the Community”) sued the
Department of Veterans Affairs (“the VA”) for failing to
reimburse the Community for the care it provides to veterans
at tribal facilities. The Community argues that two
provisions of the Patient Protection and Affordable Care Act
require the VA to reimburse it even absent an agreement
defining the terms of reimbursement. The district court
dismissed the Community’s lawsuit after determining that the
Veterans’ Judicial Review Act, 38 U.S.C. § 511(a), deprived
4 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
it of jurisdiction over the Community’s claims. We have
appellate jurisdiction under 28 U.S.C. § 1291. We affirm.
I. Background
The Gila River Indian Community is a federally
recognized American Indian tribe that occupies the Gila River
reservation in Arizona. The Gila River Health Care
Corporation (“GRHC”) is a wholly owned tribal organization
that provides health care services to eligible persons. The
GRHC was formed pursuant to the Indian Self-Determination
and Education Assistance Act, which authorizes Indian tribes
to contract with the federal government to provide services
that were previously provided by the federal government. See
25 U.S.C. § 5301 et seq. The health care that the GRHC
provides is financed through funding agreements between the
tribe and the Indian Health Service (“IHS”), an agency within
the Department of Health & Human Services.
Relevant to this case, the Community provides health care
services to Indian and non-Indian veterans who are entitled to
receive services from the VA. The Community alleges that
many veterans have opted to receive care through the GRHC,
rather than through the VA, due to ongoing issues with the
care provided at VA facilities.
In 2010, Congress enacted the Patient Protection and
Affordable Care Act (“the ACA”). Pub. L. No. 111-148,
124 Stat. 119 (2010). Two provisions of the ACA are
relevant to this case. The first, 25 U.S.C. § 1623(b),
provides:
GILA RIVER INDIAN CMTY. V. DEP’T OF V.A. 5
Health programs operated by the Indian
Health Service, Indian tribes, tribal
organizations, and Urban Indian organizations
(as those terms are defined in section 1603 of
this title) shall be the payer of last resort for
services provided by such Service, tribes, or
organizations to individuals eligible for such
s erv i ces t hrough such program s ,
notwithstanding any Federal, State, or local
law to the contrary.
The Community argues that the effect of this provision is to
guarantee that tribal health programs will pay for health care
services only after other sources of funding, such as VA
reimbursement, Medicare, Medicaid, or private health
insurance, have been exhausted or have been shown to be
unavailable. See 42 C.F.R. § 136.61.
The second provision, § 1645(a)(1), gives the Secretary
of the VA authority to “enter into (or expand) arrangements
for the sharing of medical facilities and services between the
Service, Indian tribes, and tribal organizations and the [VA].”
Section 1645(c) provides further that “[t]he Service, Indian
tribe, or tribal organization shall be reimbursed by the
Department of Veterans Affairs or the Department of Defense
. . . where services are provided through the Service, an
Indian tribe, or a tribal organization to beneficiaries eligible
for services from either such Department, notwithstanding
any other provision of law.” The Community argues that
§ 1645(c) is designed to give Indian veterans flexibility in
choosing where to receive health care services “while
ensuring that tribal budgets will not be drained when patients
[choose] tribal services over care they could otherwise
receive through the VA.”
6 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
Instead of providing reimbursements directly under the
ACA, the VA developed template reimbursement agreements
with the IHS, and it required recipients to enter into an
agreement as a condition of receiving reimbursement. The
Community argues that these template agreements
improperly limit the scope of what it contends is a mandatory
and self-executing right to reimbursement directly under the
ACA. In the Community’s view, the agreements, among
other things, improperly require express consent by the VA
to each reimbursement request, limit reimbursements to direct
care services, and deny reimbursement to the Community for
services provided to non-Indian veterans who receive
treatment from the GRHC. The Community and the VA
entered into lengthy negotiations, which failed to produce a
mutually acceptable agreement.
In March 2016, the Community filed suit against the VA
and the Secretary. The Community alleged that the VA had
violated § 1623(b) by “forcing GRHC into a primary payer
position on all services for which VA has refused to provide
reimbursements.” The Community further alleged that the
VA violated 25 U.S.C. § 1645(c) by refusing to process
reimbursement requests and by conditioning reimbursement
on entering into an agreement with the VA. The Community
requested declaratory and injunctive relief, requiring
reimbursement for services it had already provided to
veterans as well as reimbursement for future services.
The VA moved to dismiss the Community’s complaint,
arguing that the district court lacked subject matter
jurisdiction under the Veterans’ Judicial Review Act
(“VJRA”), Pub. L. No. 100-687, 102 Stat. 4105 (1988), and
that the complaint failed to state a claim. The VJRA provides
that the Secretary of the VA “shall decide all questions of law
GILA RIVER INDIAN CMTY. V. DEP’T OF V.A. 7
and fact necessary to a decision by the Secretary under a law
that affects the provision of benefits by the Secretary to
veterans.” 38 U.S.C. § 511(a). A decision by the Secretary
is “final and conclusive and may not be reviewed by any
other official or by any court.” Id.The district court dismissed the complaint under Rule
12(b)(1) for lack of subject matter jurisdiction. The court
noted that in Veterans for Common Sense v. Shinseki,
678 F.3d 1013, 1025 (9th Cir. 2012) (en banc), we held that
§ 511(a) creates a broad jurisdictional bar that “extends not
only to cases where adjudicating veterans’ claims requires the
district court to determine whether the VA acted properly in
handling a veteran’s request for benefits, but also to those
decisions that may affect such cases.” The district court held
that the “refusal to provide . . . reimbursement—even
assuming reimbursement is statutorily mandated—is a
decision that relates to a benefits decision,” and dismissed the
Community’s claims. The court did not reach the VA’s
alternative argument that the complaint failed to state a claim
for relief under Rule 12(b)(6).
The Community appeals.
II. Standard of Review
We review de novo a dismissal under Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction. Warren v.
Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.
2003).
8 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
III. Discussion
The sole question presented in this appeal is whether
§ 511(a) bars the Community from bringing this suit in
federal district court. Section 511(a) provides:
The Secretary shall decide all questions of law
and fact necessary to a decision by the
Secretary under a law that affects the
provision of benefits by the Secretary to
veterans or the dependents or survivors of
veterans. Subject to subsection (b), the
decision of the Secretary as to any such
question shall be final and conclusive and
may not be reviewed by any other official or
by any court, whether by an action in the
nature of mandamus or otherwise.
38 U.S.C. § 511(a).
Other provisions of the VJRA allow administrative and
judicial review of VA decisions, unaffected by the
jurisdictional bar of § 511(a). See 38 U.S.C. § 511(b)(1), (4).
For example, a claimant may appeal certain of the Secretary’s
decisions, including benefits determinations, to the Board of
Veterans Appeals. 38 U.S.C. § 7104(a). A party who is
“adversely affected” by the Board’s final decision may then
appeal to the United States Court of Appeals for Veterans
Claims, an Article I court, and from there, to the Court of
Appeals for the Federal Circuit. Id. §§ 7252, 7266(a), 7292.
Further, an interested party seeking to challenge notice-and-
comment rulemaking by the VA, or another VA action that
requires publication in the Federal Register (such as
“substantive rules of general applicability” or “statements of
GILA RIVER INDIAN CMTY. V. DEP’T OF V.A. 9
general policy or interpretations of general applicability”),
may file suit in the Federal Circuit. Id. § 502 (referencing
5 U.S.C. §§ 552(a)(1), 553). In both instances, the
jurisdictional grants to the Veterans Court and the Federal
Circuit Court are exclusive. Id. §§ 7252(a), 7292(c).
In Veterans for Common Sense v. Shinseki, we recognized
that § 511(a), when read alongside provisions channeling
claims through the Veterans Court and the Federal Circuit,
“demonstrate[s] that Congress was quite serious about
limiting our jurisdiction over anything dealing with the
provision of veterans’ benefits.” 678 F.3d at 1023. To that
end, § 511(a) “extends not only to cases where adjudicating
veterans’ claims requires the district court to determine
whether the VA acted properly in handling a veteran’s
request for benefits, but also to those [VA] decisions that may
affect such cases.” Id. at 1025. Indeed, the plain text of
§ 511(a) indicates that the bar applies not only to the VA’s
actual benefits decisions, but also to the VA’s resolution of
predicate “questions of law and fact … under a law that
affects the provision of benefits.” 38 U.S.C. § 511(a)
(emphasis added). However, § 511(a) allows the exercise of
jurisdiction over certain facial constitutional challenges that
require only a “consideration of the constitutionality of the
procedures in place,” rather than “a consideration of the
decisions that emanate through the course of the presentation
of those claims.” Veterans for Common Sense, 678 F.3d at
1034 (holding that § 511(a) did not strip jurisdiction over a
facial procedural due process claim); see also Recinto v. U.S.
Dep’t. of Veterans Affairs, 706 F.3d 1171, 1176 (9th Cir.
2003) (holding that § 511(a) did not strip jurisdiction over a
facial equal protection claim).
10 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
We hold that § 511(a) bars the Community’s suit. The
suit asks us to review the VA’s determination that 25 U.S.C.
§§ 1623(b) and 1645(c) do not require it to reimburse the
Community absent a sharing agreement. That determination
is plainly a “question of law . . . necessary to a decision by
the Secretary under a law that affects the provision of benefits
by the Secretary to veterans.” 38 U.S.C. § 511(a). Further,
the relief requested by the Community would clearly
“affect[ ] the provision of benefits” by requiring the VA to
reimburse the Community both retrospectively and
prospectively.
The Community’s arguments to the contrary are not
persuasive. The Community first argues that its claims do not
“affect[ ] the provision of benefits by the Secretary to
veterans.” 38 U.S.C. § 511(a) (emphasis added). The
Community characterizes the ACA provisions as cost-shifting
provisions that transfer the obligation to pay from one agency
to another, but that do not expand or diminish a veteran’s
entitlement to care. In the Community’s view, its claims do
not fall within § 511(a) because its lawsuit concerns
reimbursement, rather than eligibility for services.
We do not read § 511(a) so narrowly. We recently
rejected an argument very similar to the argument the
Community makes here—that § 511(a) extends only “to
those claims addressing entitlement to benefits, rather
than the manner in which those benefits [are] provided to
eligible veterans.” Tunac v. United States, No. 17-15021, —
F.3d — , 2018 WL 3614044 at *6 n.5 (9th Cir. July 30,
2018). The relevant inquiry under § 511(a) is whether a suit
would “require[] the district court to review VA decisions
that relate to benefits decisions, including any decision made
by the Secretary in the course of making benefits decisions.”
GILA RIVER INDIAN CMTY. V. DEP’T OF V.A. 11
Veterans for Common Sense, 678 F.3d at 1025 (emphasis
added) (internal citations and quotation marks omitted).
Reimbursement decisions by the VA clearly relate to benefits
decisions. See, e.g., Price v. United States, 228 F.3d 420, 422
(D.C. Cir. 2000) (holding that § 511(a) stripped jurisdiction
over a veteran’s claim that the VA wrongfully denied
reimbursement).
The VA may provide benefits to veterans directly, by
providing health care services through VA facilities, or
indirectly, by reimbursing treatment costs when veterans
receive treatment from other providers. For example,
38 U.S.C. § 1725(a)(1) provides that the VA “shall reimburse
a veteran . . . for the reasonable value of emergency treatment
furnished the veteran in a non-Department facility.” Section
1725 further provides that the Secretary may, “in lieu of
reimbursing the veteran,” pay the emergency care provider
directly, or reimburse a “person or organization that paid for
such treatment on behalf of the veteran.” Id. § 1725(a)(2);
see also id. § 1741(a)(1) (providing that the Secretary “shall
pay each State [a] per diem rate” for care to a veteran in a
state facility, “if such veteran is eligible for such care in a
[VA] facility”). Although a third-party care provider can
contest a reimbursement decision, it must do so
administratively, by filing a claim and appealing, if
necessary, to the Veterans Court. See St. Patrick’s Hosp. v.
Principi, 4 Vet. App. 55, 56 (1996) (finding that a private
hospital may appeal an adverse decision to the Veterans
Court).
The Community compares its claims to the facial equal
protection claim considered in Recinto. It argues that Recinto
held that § 511(a) does not bar jurisdiction in a federal district
court if the claim does not require a court to consider any
12 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
individual benefits determinations. The Community misreads
Recinto. The test is whether review requires consideration of
predicate “questions of law and fact . . . under a law that
affects the provision of benefits.” 38 U.S.C. § 511(a). In
Recinto, we exercised jurisdiction only after first concluding
that review “would not require consideration of [VA]
decisions affecting the provision of benefits.” 706 F.3d at
1176 (internal quotation marks omitted). Because the
Community challenges the VA’s decision not to provide
reimbursements absent an agreement, a consideration of the
Community’s claims would clearly require consideration of
VA “decisions that emanate through the course of the
presentation of [benefits] claims.” Veterans for Common
Sense, 678 F.3d at 1034.
The Community also invokes the presumption in favor of
judicial review of administrative action. See ANA Int’l, Inc.
v. Way, 393 F.3d 886, 891 (9th Cir. 2004). But because the
express language of § 511(a) is unambiguous, and because
Congress has provided an alternative forum for judicial
review of the Community’s claims, that presumption does not
require a different result. Cf. Veterans for Common Sense,
678 F.3d at 1035 (exercising jurisdiction over claim in part
because “[plaintiff] would be unable to assert its claim in the
review scheme established by the VJRA.”).
The Community further relies on the Blackfeet Tribe
presumption, which provides that “statutes are to be
construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.” Montana v. Blackfeet
Tribe of Indians, 471 U.S. 759, 766 (1985). But the Blackfeet
Tribe presumption applies only to those federal statutes that
are “passed for the benefit of . . . Indian tribes.” Artichoke
Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 729 (9th
GILA RIVER INDIAN CMTY. V. DEP’T OF V.A. 13
Cir. 2003) (quoting Hoonah Indian Ass’n v. Morrison,
170 F.3d 1223, 1128–29 (9th Cir. 1999)). It does not extend
to generally applicable statutes. See id.; Consumer Fin.
Protection Bureau v. Great Plains Lending, LLC, 846 F.3d
1049, 1057 (9th Cir. 2017). Because the statute directly at
issue is 38 U.S.C. § 511(a), rather than the provisions of the
ACA, the Blackfeet Tribe presumption does not apply. The
Community emphasizes that the ACA provisions are
mandatory and self-executing, but this goes to the merits of
the Community’s claim for reimbursement, rather than to the
antecedent jurisdictional question before us.
Finally, the Community argues that the district court has
jurisdiction under 28 U.S.C. § 1362, which provides the
district court with original jurisdiction over civil actions
brought by Indian tribes that present a federal question. The
Community did not make this argument in the district court,
and it has therefore been waived. But even if it were properly
before us, we would be obliged to hold that the general grant
of subject matter jurisdiction in 28 U.S.C. § 1362, like other
general grants of subject matter jurisdiction such as 28 U.S.C.
§ 1331, does not control over the specific limitation of subject
matter jurisdiction contained in 38 U.S.C. § 511(a). See
Veterans for Common Sense, 678 F.3d at 1023 (noting that “if
a claim comes within [§ 511(a) or the VJRA’s exclusive
review provisions] the district court is divested of jurisdiction
that it otherwise might have exercised under 28 U.S.C.
§ 1331, and we are divested of any power of appellate
review”); see also Blatchford v. Native Vill. of Noatak &
Circle Vill., 501 U.S. 775, 783 (1991) (“What is striking
about [28 U.S.C. § 1362] . . . is its similarity to any number
14 GILA RIVER INDIAN CMTY. V. DEP’T OF V.A.
of other grants of jurisdiction to district courts to hear federal-
question claims.”).
AFFIRMED.