Cook Inlet Tribal Council, Inc. v. Mandregan ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
COOK INLET TRIBAL COUNCIL, )
)
Plaintiff, )
)
v. ) Case No. 14-cv-1835 (EGS)
)
CHRISTOPHER MANDREGAN, JR., )
et. al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
I. Introduction
Over twenty-five years ago, the Cook Inlet Tribal Council
(“CITC”) and the Indian Health Service (“IHS”) entered into a
self-determination contract pursuant to the Indian Self-
Determination and Education Assistance Act (“ISDEAA”). Under
this contract, CITC has operated substance abuse programs
serving Alaskan Native patients, while IHS provides federal
funding to CITC, allowing CITC to administer federal programs
and services that IHS would have otherwise provided. In 2014,
CITC proposed a contract amendment for additional “contract
support costs” funding to account for increased facility support
costs, among other costs. IHS declined CITC’s proposed amendment
in part, stating that CITC receives payment for facility support
costs as part of its annual “Secretarial” funding. CITC now
1
appeals IHS’ declination decision, bringing suit against
Christopher Mandregan, Jr., Alaska Area Director of IHS; Alex
Azar, 1 Secretary of the Department of Health and Human Services
(“HHS”); and the United States of America. At issue is whether
the ISDEAA clearly requires that CITC’s facility support costs
be funded exclusively from the Secretarial amount, or whether
CITC’s facility support costs may also be funded as contract
support costs.
Pending before the Court are the parties’ cross-motions for
summary judgment. Having carefully reviewed the motions and the
entire record herein, the Court concludes that CITC’s
interpretation of the ISDEAA’s ambiguous funding provision is
reasonable. Therefore, the Court GRANTS IN PART CITC’s motion
for summary judgment and DENIES the defendants’ cross-motion for
summary judgment. However, rather than “immediately” compel IHS
to approve and fund CITC’s proposed contract amendment, the
Court VACATES IHS’ declination decision and REMANDS the matter
to IHS for a determination consistent with this Memorandum
Opinion.
II. Background
This case arises out of a dispute regarding the ISDEAA’s
funding provisions. The ISDEAA authorizes the government and
1 Secretary Azar has been substituted pursuant to Federal Rule of
Civil Procedure 25(d).
2
Indian tribes to enter into self-determination contracts,
pursuant to which tribes receive federal funding to provide
certain services that a federal agency would normally provide.
See 25 U.S.C. §§ 5301, et. seq. 2 The ISDEAA was designed—in
recognition of the country’s “obligation” “to respond to the
strong expression of the Indian people for self-determination”—
to “permit an orderly transition from the Federal domination of
programs for, and services to, Indians to effective and
meaningful participation by the Indian people in the planning,
conduct, and administration of those programs and
services.” Id. § 5302(a), (b). Consistent with these aims, the
ISDEAA “direct[s]” the government to enter into and negotiate
self-determination contracts with Indian tribes upon tribal
request. Id. § 5321(a)(1). “Under a self-determination contract,
the federal government supplies funding to a tribal
organization, allowing [the tribe] to plan, conduct and
administer a program or service that the federal government
otherwise would have provided directly.” Rancheria v. Hargan,
296 F. Supp. 3d 256, 260 (D.D.C. 2017) (quoting FGS
Constructors, Inc. v. Carlow, 64 F.3d 1230, 1234 (8th Cir.
1995)(quotation marks omitted).
2 The parties cite to 25 U.S.C. §§ 450, et. seq., when referring
to the ISDEAA. The ISDEAA has since been recodified. As such,
all citations in this Memorandum Opinion reflect the statute’s
current codification.
3
CITC challenges IHS’ decision to decline CITC’s proposed
contract amendment in part (“declination decision”). See Compl.,
ECF No. 1. IHS is an agency within HHS that provides primary
health care for American Indians and Alaskan Natives throughout
the United States. Defs.’ MSJ, ECF No. 15 at 8. 3 IHS provides
health care by several means, including directly through its own
facilities or by contracting with tribes and tribal
organizations pursuant to the ISDEAA. Id. at 8-9.
CITC is a “private, non-profit corporation that delivers
social, education, employment, training, alcohol treatment,
child care, housing assistance, energy assistance and planning
services to the Alaska Native people of the Cook Inlet Region.”
A.R., 4 ECF No. 17-1 at 3. The services it provides to Native
Alaskans are funded by the federal government and the state of
Alaska. Id. CITC operates under the authority of its Board of
Directors, which is made up of representatives from eight
federally-recognized tribes: (1) the Chickaloon Village
3 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
4 Pending before the Court are the defendants’ two motions to
enlarge and/or supplement the administrative record. See ECF
Nos. 17, 20. CITC did not oppose the motions and in fact,
attached some of the supplemental materials to its motion for
summary judgment. See ECF No. 13, Exs. A-C. The Court therefore
GRANTS the defendants’ motions to supplement the record. The
Court considered all of the material on the docket in reaching
its decision.
4
Traditional Council; (2) the Native Village of Eklutna; (3) the
Kenaitze Indian Tribe; (4) the Knik Tribal Council; (5) the
Ninilchik Traditional Council; (6) the Salamatof Tribal Council;
(7) the Seldovia Village Tribe; (8) and the Native Village of
Tyonek. See id.; Pl.’s Stmt., ECF No. 13-2 ¶ 1.
CITC has been a “tribal contractor” under the ISDEAA since
1992, Defs.’ Stmt., ECF No. 15-1 ¶¶ 1, 2, when it submitted a
proposal to IHS to enter into a self-determination contract to
provide residential treatment and recovery services at the
Alaska Native Alcohol Recovery Center, see A.R., ECF No. 17-2;
Pl.’s Stmt., ECF No. 13-2 ¶ 2. IHS accepted the proposal. Pl.’s
Stmt., ECF No. 13-2 ¶ 3. In the first year of the self-
determination contract, CITC was provided approximately $150,000
in Secretarial funding, which included $11,838.50 for facility-
related costs. Id. ¶¶ 3, 4; see also A.R., ECF No. 17-2. Since
then, CITC’s programs have “expanded substantially . . . with
most funding coming from increases in congressional
appropriations.” Pl.’s Stmt., ECF No. 13-2 ¶ 5. Accordingly, its
funding increased from about $150,000 in 1992 to approximately
$2,000,000 in 2014, including the $11,838.50 IHS has paid
annually for facility support costs since 1992. See A.R., ECF
No. 11-1 at 2 ($1,943,226 as of April 2014); Pl.’s Stmt, ECF No.
13-2 ¶ 6 ($2,518,559).
5
By 2013, CITC’s facility support costs grew to $479,040,
including the $11,838.50 IHS has paid annually since 1992. Pl.’s
Stmt, ECF No. 13-2 ¶ 8. On April 11, 2014, CITC requested to
amend of its 2014 self-determination contract to add $479,040 in
“direct contract support costs associated with facility
support.” A.R., ECF No. 17-3. In its proposal, CITC argued that
its request should be approved because facility support funds
are “reasonable costs for activities which must be carried on by
CITC as a contractor” pursuant to the ISDEAA. Id. (citing 25
U.S.C. § 5325(a)(2)). On July 7, 2014, IHS denied CITC’s
proposal based on one of the five declination options
permissible under the ISDEAA: the amount CITC requested was “in
excess of the applicable funding level for the contract.” A.R.,
ECF No. 11-1 at 2-3 (citing 25 U.S.C. § 5321(a)(2)(D)). 5 In its
declination letter, IHS explained that facility support costs
were already included as part of CITC’s “program base,” or the
“Secretarial amount.” Id. The Secretarial amount is the funding
that “IHS would have spent for costs associated with its
programs” had it run the program itself. Id. (citing 25 U.S.C. §
5325(a)(1)). According to IHS, paying the requested $479,040 in
“direct contract support costs” would cause it to pay CITC for
5 IHS approved other costs as contract support costs, including
training and certification costs, unemployment insurance, and
workers’ compensation insurance and costs. Pl.’s Stmt., ECF No.
13-2 ¶ 10.
6
facility support costs twice, in violation of the ISDEAA. See
id. (citing 25 U.S.C. § 5325(a)(3)(A) (contract support costs
funding “shall not duplicate any funding” otherwise provided)).
CITC appealed this declination decision by filing a
complaint on October 31, 2014. Compl., ECF No. 1. The parties
filed cross-motions for summary judgment in 2015, which the
Court denied without prejudice while the parties engaged in
settlement negotiations. See Jan. 4, 2016 Minute Order. After
the negotiations failed, the Court granted the parties’ motions
to reinstate the cross-motions for summary judgment. See June 8,
2016 Minute Order.
III. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). CITC’s claim arises under the ISDEAA, not the
Administrative Procedure Act. As such, the Court’s review of
IHS’ declination decision is de novo. Pyramid Lake Paiute Tribe
v. Burwell, 70 F. Supp. 3d 534, 542 (D.D.C. 2014); see also
Defs.’ MSJ, ECF No. 15 (not disputing that the Court’s review is
de novo).
7
When a tribe appeals a government agency’s declination
decision under the ISDEAA, as here, the burden of proof rests
with the government: “the Secretary shall have 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. § 5321(e)(1). Therefore, IHS must “clearly
demonstrate” and make a “specific finding” that there exists one
of five permissible grounds to decline. Id. § 5321(a)(2). In
other words, the government “must demonstrate that its reading
is clearly required by the statutory language.” Salazar v. Ramah
Navajo Chapter, 567 U.S. 182, 194 (2012)(quoting 25 U.S.C. §
5329). IHS must therefore clearly demonstrate that CITC’s
contract proposal for additional facility support costs was in
excess of the self-determination contract’s applicable funding
level. 25 U.S.C. § 5321(a)(2). To do so, IHS must establish that
facility support costs were included in CITC’s Secretarial
amount and to pay them again would violate the ISDEAA’s
prohibition against duplicative funding. See id.; id. §
5325(a)(3)(A); see also A.R., ECF No. 11-1 at 2-3.
Additionally, the ISDEAA and the self-determination
contracts formed thereunder “shall be liberally construed for
the benefit of the [tribal] Contractor.” Ramah Navajo, 567 U.S.
at 194 (quoting 25 U.S.C. § 5329). This canon of construction
has been codified in the ISDEAA, see 25 U.S.C. § 5329, and is
8
memorialized in the self-determination contract between IHS and
CITC, see A.R., ECF No. 11-1 at 14 § (a)(2) (“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 . . . .”); see also 25 U.S.C. §
5329(c) (model agreement codifying this provision); Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (when
cases involve American Indians, “statutes are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit”).
This canon displaces the deference a court would otherwise
give an agency’s interpretation under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) in
a challenge brought pursuant to the Administrative Procedure
Act. See Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir. 2001)
(Because “the governing canon of construction” requires liberal
construction in favor of tribes, “Chevron deference is not
applicable in this case”). Therefore, when interpreting a
statute, a court must first determine whether the statutory text
is plain and unambiguous. Carcieri v. Salazar, 555 U.S. 379, 387
(2009). If so, the court “must apply the statute according to
its terms.” Id. If, on the other hand, the court determines the
statute to be ambiguous, the court need not give controlling
weight to an agency’s reasonable interpretation of that statute,
9
as it normally would under Chevron. See Muscogee (Creek) Nation
v. Hodel, 851 F.2d 1439, 1444 (D.C. Cir. 1988)(“[T]he standard
principles of statutory construction do not have their usual
force in cases involving Indian law.”). Instead, the court is to
give IHS’ views “consideration,” but not deference. Cobell, 240
F.3d at 1101; see also Rancheria, 296 F. Supp. 3d at 265-67
(D.D.C. 2017)(summarizing “statutory interpretation and Chevron
deference in Indian law”); Maniilaq Ass'n v. Burwell, 72 F.
Supp. 3d 227, 232 (D.D.C. 2014) (“[T]he canon of construction in
favor of Indian tribes can trump the deference to agencies'
interpretations courts ordinarily give under Chevron and its
progeny . . . .”). Because “statutes are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit,” the Court must construe any
ambiguity or inconsistency in the ISDEAA or the self-
determination contract in CITC’s favor. Muscogee, 851 F.2d at
1444-45 (quoting Blackfeet Tribe, 471 U.S. at 766).
IV. Analysis
IHS denied CITC’s contract proposal because the “amount of
funds proposed . . . is in excess of the applicable funding
level for the contract.” A.R., ECF No. 11-1 at 3. According to
IHS, CITC is not entitled to the requested facility support
funding because that funding has been included in CITC’s
“Secretarial amount.” See id. The Secretarial amount is “the
10
amount that the IHS would have spent for costs associated with
its programs” under the ISDEAA. Id. Because the Secretarial
amount is capped at the amount IHS would have spent, IHS may
“decline any proposal seeking funds in excess of that amount.”
Maniilaq Ass'n, 170 F. Supp. 3d at 249 (citations omitted).
Although it has received $11,838.50 annually in facility support
costs since 1992, CITC argues that its increasing facility
support costs have not been funded in the Secretarial amount.
See generally Pl.’s MSJ, ECF No. 13. Therefore, CITC contends
that such costs must be provided as eligible “contract support
costs.” Id. IHS responds that CITC’s Secretarial amount has
steadily increased to almost $2 million in 2014 to “account for
inflation and rising costs of operating” Indian programs. Defs.’
MSJ, ECF No. 15 at 6. It contends that this amount includes
funding for increased facility support costs. Id. CITC replies
that IHS has provided no evidence to support that it provided
increased facility support costs beyond the $11,838.50 paid
annually since 1992; therefore, it argues that IHS failed to
meet its burden under the ISDEAA. Pl.’s Reply, ECF No. 18 at 16.
At issue, then, is whether the ISDEAA clearly requires that
CITC’s facility support costs be funded exclusively from the
Secretarial amount, or whether CITC’s facility support costs may
also be funded as contract support costs. See generally Pl.’s
MSJ, ECF No. 13; Defs.’ MSJ, ECF No. 15. In reaching its
11
decision, the Court first discusses the ISDEAA’s statutory
scheme and the two types of funding provided thereunder. The
Court then evaluates whether the statute speaks clearly on the
precise question. Concluding that it does not, the Court finds
CITC’s interpretation of the ambiguous statutory provision to be
reasonable, particularly in light of IHS’ contradictory
guidance, which contemplates that facility support costs may be
paid as contract support costs in certain circumstances.
Similarly, the Court finds that IHS’ interpretation is not
compelled by the ISDEAA and may in fact be contradicted by its
own regulations and guidance.
A. The Indian Self-Determination and Education Assistance Act
Congress enacted the ISDEAA in 1975 to codify the federal
government’s “obligation” to “respond to the strong expression
of the Indian people for self-determination” and to achieve
“maximum Indian participation in the direction of educational as
well as other Federal services to Indian communities so as to
render such services more responsive to the needs and desires of
those communities.” 25 U.S.C. § 5302(a). To that end, the Act
mandates that IHS must “upon the request of any Indian tribe . .
. enter into a self-determination contract . . . to plan,
conduct, and administer” health, education, economic, and social
programs that the Secretary otherwise would have administered.
Id. § 5321(a); see also Salazar v. Ramah Navajo Chapter, 567
12
U.S. 182, 186 (2012). Once the self-determination contract has
been executed, the government must pay the tribe’s costs to run
the program that it would have otherwise administered. See 25
U.S.C. § 5325. The ISDEAA provides for two types of funding: (1)
“Secretarial” amount funding, pursuant to § 5325(a)(1); and (2)
“contract support costs” funding, pursuant to § 5325(a)(2), (3).
The Secretarial amount is “the amount that the agency would
have spent ‘for the operation of the program’ had the agency
itself managed the program.” Cherokee Nation of Okla. v.
Leavitt, 543 U.S. 631, 634 (2005)(quoting 25 U.S.C. §
5325(a)(1)); see also Arctic Slope Native Ass’n, Ltd. v.
Sebelius, 629 F.3d 1296, 1298-99 (Fed. Cir. 2010) (“The
[S]ecretarial amount is the amount the Secretary would have
expended had the government itself run the program.”), vacated
on other grounds, 567 U.S. 930 (2012). The Secretarial amount
“shall not be less than [the amount] the appropriate Secretary
would have otherwise provided for the operation of the programs
. . . covered by the contract, without regard to the
organizational level” within the relevant agency “at which the
program . . . , including supportive administrative functions
that are otherwise contractible, is operated.” 25 U.S.C. §
5325(a)(1). The statute does not provide examples of types of
costs that are included in the Secretarial amount.
13
As originally enacted, the ISDEAA only required the
government to provide Secretarial funding, equivalent to the
amount that the Secretary would have otherwise provided. Ramah
Navajo, 567 U.S. at 186 (discussing § 106(h), 88 Stat. 2211).
However, “it soon became apparent that this [S]ecretarial amount
failed to account for the full costs to tribes of providing
services.” Id. For example, the Secretarial amount “does not
include the additional indirect costs that the tribes incur in
their operation of the programs, which the Secretary would not
have directly incurred (i.e., the cost of the administrative
resources that the Secretary could draw from other government
agencies).” Arctic Slope, 629 F.3d at 1299. Therefore, in 1988,
“because of ‘concern with Government’s past failure to
adequately reimburse tribes’ indirect administrative costs,’
Congress amended [the ISDEAA] to require the Secretary to
contract to pay the full amount of contract support costs
related to each self-determination contract.” Ramah Navajo, 567
U.S. at 186 (quoting Cherokee Nation, 543 U.S. at 639)
(quotations to the statute omitted).
Under the ISDEAA, contract support costs “shall be added”
to the Secretarial amount. 25 U.S.C. § 5325(a)(2). Contract
support costs are defined as:
an amount for the reasonable costs for
activities which must be carried on by a
tribal organization as contractor to ensure
14
compliance with the terms of the contract and
prudent management, but which—
(A) normally are not carried on by the
respective Secretary in his direct operation
of the program; or
(B) are provided by the Secretary in
support of the contracted program from
resources other than those under the contract.
Id. These costs “include overhead administrative costs, as well
as expenses such as federally mandated audits and liability
insurance.” Ramah Navajo, 567 U.S. at 186, n.1. Unlike the
Secretarial amount provision, the statute provides further
insight into the type of costs that may be eligible for contract
support costs funding:
The contract support costs that are eligible
costs for the purposes of receiving funding
under this chapter shall include costs of
reimbursing each tribal contractor for
reasonable and allowable costs of—
(i) direct program expenses for the
operation of the Federal program that is the
subject of the contract, and
(ii) any additional administrative or
other expense related to the overhead incurred
by the tribal contractor in connection with
the operation of the Federal program,
function, service, or activity pursuant to the
contract,
except that such funding shall not
duplicate any funding provided under
subsection (a)(1) of this section [the
Secretarial amount].
25 U.S.C. § 5325(a)(3)(A); see also Cherokee Nation, 543 U.S. at
635 (describing contract support costs as defined in the
statute).
15
Whether a cost or “activity” is included in the Secretarial
amount or is eligible as a contract support cost is significant
because the ISDEAA obligates IHS to fully fund contract support
costs. See Ramah Navajo, 567 U.S. at 193-94 (holding that the
government “cannot back out of its contractual promise to pay
each Tribe’s full contract support costs”). On the other hand,
IHS is only obligated to provide Secretarial funding in an
amount not less than the Secretary would have otherwise
provided. 25 U.S.C. § 5325(a)(1). Thus, the amount of
Secretarial funding provided is committed to agency discretion.
Defs.’ MSJ, ECF No. 15 at 13 (citing Quechan Tribe of the Ft.
Yuma Indian Res. v. United States, Case No. 11-16334, slip op.
at 3 (9th Cir. Apr. 1, 2015)).
CITC requested $479,040 in contract support costs funding
for its facility support costs in a proposal to amend the 2014
self-determination contract. A tribe may propose to amend a
self-determination contract by, for example, amending a funding
agreement. See 25 U.S.C. § 5321(a)(2). The government “shall”
approve a proposal to amend a self-determination contract
“unless the Secretary provides written notification to the
applicant that contains a specific finding that clearly
demonstrates” that one of five declination criteria or
conditions have been met. Id.; see also 25 C.F.R. § 900.29 (IHS
Regulation: “What is the Secretary required to do if the
16
Secretary decides to decline all or a portion of a proposal?”).
If an agency declines the proposal, the tribe may initiate an
action in a federal district court. 25 U.S.C. § 5321(b)(3). If
the district court concludes that the agency has not clearly
demonstrated a valid ground to decline, the court may order
appropriate relief including “money damages, injunctive relief .
. . , mandamus to compel an officer or employee of the United
States, or any agency thereof, to perform a duty . . .
(including immediate injunctive relief to reverse a declination
finding . . . or to compel the Secretary to award and fund an
approved self-determination contract).” Id. § 5331(a).
B. Section 5325 of the ISDEAA is Ambiguous
As stated by IHS, “this case raises a novel issue about
what activities, and the associated costs, are eligible for
[contract support costs] funding under the ISDEAA.” Defs.’ MSJ,
ECF No. 15 at 13. The Court must determine whether the ISDEAA
clearly requires that CITC’s facility support costs be funded
exclusively from the Secretarial amount, or whether they may
also be funded as contract support costs.
IHS argues that the “plain language” of the ISDEAA
“authorizes [contract support costs] funding only for activities
normally not carried on by the Secretary . . . but that tribes
must carry on to ensure compliance with the terms of the
contract and prudent management.” Id. at 25. Therefore, IHS
17
argues that facility support costs are not eligible for contract
support costs funding because “facility activities, and the
corresponding costs, are [a program, function, service, or
activity] that the IHS would normally carry out and incur if it
was managing a facility.” Id. at 5. Therefore, because IHS would
“normally” pay for facility support costs, the ISDEAA “makes
clear” that those costs must constitute Secretarial funding. Id.
at 20; see id. 7, 15-16. According to IHS, CITC is impermissibly
attempting to supplement its Secretarial amount by
“recharacterizing” facility support costs as contract support
costs. Id. at 20.
CITC responds that facility support costs are eligible to
be funded both as Secretarial funding, as a portion of them have
been since 1992, and as contract support costs because they are
“reasonable and allowable costs” required for the operation of
the program. Pl.’s MSJ, ECF No. 13-1 at 1 (quoting 25 U.S.C. §
5325(a)(3)(A)). Because a tribal contractor “must ensure it has
adequate space to provide the services required by the
contract,” CITC argues that facility support costs are necessary
“to ensure compliance with the terms of the [self-determination]
contract and prudent management.” Id. at 12 (quoting 25 U.S.C. §
5325(a)(2)). CITC disputes that it is attempting to
impermissibly expand its Secretarial funding. Pl.’s Reply, ECF
No. 18 at 14-15. Instead, it contends that its facility support
18
cost funding has never increased from the original $11,838.50
provided in the Secretarial amount since 1992, despite its
expanded treatment programs. Id. at 16-19; Pl.’s MSJ, ECF No.
13-1 at 19.
First, the Court must determine whether the provision at
issue is ambiguous. If the statute is ambiguous, the Court must
construe the ambiguities in CITC’s favor. See Chickasaw Nation
v. United States, 534 U.S. 84, 94 (2001) (holding that the
tribal cannon must yield when the tribe’s interpretation would
“conflict with the intent embodied in the statute Congress
wrote”). “Generally, a statute’s text is only ambiguous if,
after ‘employing traditional tools of statutory construction,’ a
court determines that Congress did not have a precise intention
on the question at issue.” Al-Bihani v. Obama, 619 F.3d 1, 7
(D.C. Cir. 2010) (quoting Chevron, 467 U.S. at 843 n. 9). The
Court must therefore ask whether “Congress has directly spoken
to the precise question at issue”—whether facility support costs
must be exclusively funded from the Secretarial amount—such that
its intent is “clear.” Chevron, 467 U.S. at 842-43.
The ISDEAA does not clearly answer whether facility support
costs may be provided only in the Secretarial amount, pursuant
to 25 U.S.C. § 5325(a)(1), or whether they may also be eligible
as contract support costs, pursuant to subsections 5325(a)(2),
(3). The statute states that the Secretarial amount includes
19
funding that the “appropriate Secretary would have otherwise
provided for the operation of the programs or portions thereof
for the period covered by the contract.” 25 U.S.C. § 5325(a)(1).
The statute does not provide examples of activities included in
the Secretarial amount. See id. Conversely, the statue states
that contract support costs are the “reasonable costs for
activities” that are “normally not carried on by the respective
Secretary in his direct operation of the program,” 6 yet “must be
carried on by a tribal organization as contractor to ensure
compliance . . . and prudent management.” Id. § 5325(a)(2).
The question, then, is what activities are “normally not
carried on” by an agency in operating a program. 25 U.S.C. §
5325(a)(2)(A). Both the statute, see id., and IHS regulations,
see 25 C.F.R. §§ 900.1, et. seq., are silent on this question.
Furthermore, IHS neither suggests a definition of “normally,”
nor provides examples of what “normal” costs would be. See
generally Defs.’ MSJ, ECF No. 15.
The “dictionary definition” of “normal” and the “everyday
meanings of the term and phrase [as used in the statute]” do not
provide clarity, especially given the complexities of federal
6 Contract support costs may also include funds that “are
provided by the Secretary in support of the contracted program
from resources other than those under the contract.” 25 U.S.C. §
5325(a)(2)(B). Neither party argues that CITC’s requested
facility support costs meet this definition. See generally Pl.s’
MSJ, ECF No. 13-1; Defs.’ MSJ, ECF No. 15.
20
program funding. See Howmet Corp. v. Envt’l. Prot. Agency, 614
F.3d 544, 550 (D.C. Cir. 2010)(looking to the dictionary
definition and everyday meaning of “purpose” to determine that
the term, as used in the statute, was ambiguous). For example,
“normal” means “according to a regular pattern,” “an established
rule,” or a “standard or norm.” See “Normal,” Black’s Law
Dictionary (10th ed. 2014). To determine if a cost is “normally”
carried by an agency, see 25 U.S.C. § 5325(a), the Court must
have some indication or knowledge about what is “standard,”
“typical,” or “established” agency practice with regard to
program spending. See “Normal,” Black’s Law Dictionary (10th ed.
2014). The Court has been provided with no such information
about typical agency practice. Without more, the intent of
Congress is not clear; the statute is “silent or ambiguous with
respect to the specific issue.” Chevron, 467 U.S. at 843. And
reading the statute “as a whole” does not reveal a “clear
congressional intent regarding the relevant question.” Nat’l
Envt’l. Dec. Ass’ns Clear Air Project v. Envt’l. Prot. Agency,
891 F.3d 1041, 1048 (D.C. Cir. 2018)(quotations omitted).
IHS argues that the provision is unambiguous because
facility support costs are “normally” incurred by an agency in
running a treatment program. See, e.g., Defs.’ MSJ, ECF No. 15
at 19-20, 26; Defs.’ Reply, ECF No. 21 at 2-5. But costs
“normally” incurred in running a federal program is not clear or
21
obvious. For example, in responding to CITC’s proposed contract
amendment, IHS stated that it “accepted all of CITC’s proposed
direct [contract support costs], with the exception of the . . .
facility costs.” Defs.’ MSJ, ECF No. 15 at 5 (citing A.R., ECF
No. 11-1). IHS accepted as eligible contract support costs
activities that included “training” and “certification” for
various treatment professionals. See A.R., ECF No. 11-1 at 6.
IHS does not explain why training and certifying treatment staff
would not be an activity the Secretary would “normally . . .
carr[y] on” in operating a treatment center, whereas facility
support costs would be. Just as IHS argues that facility support
costs are a “normal” cost incurred in operating a treatment
program, so too arguably is training and certifying the staff
needed to treat patients. There is nothing in the statute that
suggests one cost is a “normal” program cost, while the other is
not. See generally 25 U.S.C. § 5325.
The Court recognizes that facility support costs were
provided in the Secretarial amount when the contract was
initially executed in 1992, and that at least a portion of
facility support costs have been provided annually in the
Secretarial amount since then. Pl.’s Stmt., ECF No. 13-2 ¶ 4;
Defs.’ MSJ, ECF No. 15 at 18. But IHS does not explain why
facility support costs are “normally” incurred by an agency in
running a treatment program, nor does it elaborate on other
22
costs that are “normally” incurred by an agency in operating a
federal program. C.f. Consumer Fed’n of Am. & Pub. Citizen v.
U.S. Dep’t of Health & Human Servs., 83 F.3d 1497, 1506 (D.C.
Cir. 1996) (finding the agency’s interpretation of an ambiguous
statutory provision inadequate in part because the agency failed
to define “normal working conditions” and explain why the
protocol it selected was normal). Moreover, and as will be
discussed in greater detail, IHS does not sufficiently explain
why facility support costs cannot be funded by both types of
funding, to the extent the funding is not duplicative.
Indeed, the Court discusses IHS’ Indian Health Manual
(“Manual”)—a document created by IHS to provide guidance
regarding eligible contract support costs—in further depth
below, but one provision provides further support for the
Court’s conclusion that the funding provision is ambiguous. In
defining direct contract support costs, IHS states that
“facility support costs” may be eligible as contract support
costs “to the extent not already made available.” See Indian
Health Manual (“IHM”) § 6-3.2(D), available at
https://www.ihs.gov/ihm/pc/part-6/p6c3/. 7 Since IHS itself
7 IHS includes Part 6, Chapter 3 of the Indian Health Manual as
Exhibit 1 to its reply. See ECF No. 21-1. However, the version
IHS attaches is not the most recent version of the Manual.
Throughout this Opinion, the Court cites and refers to the
updated version of the Manual located at
https://www.ihs.gov/IHM/.
23
provides guidance that asserts that facility support costs may
also be eligible as contract support costs, the Court is
persuaded that the ISDEAA funding provision is ambiguous. 8
The ISDEAA’s legislative history also supports this
conclusion. In 1994, Congress amended the ISDEAA to “more fully
define” contract support costs. S. Rep. No. 103-374, at 8
(1994). Congress clarified that “[i]n the event the Secretarial
amount . . . for a particular function proves to be insufficient
in light of a contractor’s needs for prudent management of the
contract, contract support costs are to be available to
supplement such sums.” Id. at 9.
While it may well be reasonable to assume that an agency to
“normally” incurs facility support costs when operating a
treatment center, the Court is not persuaded that Congress has
“unambiguously expressed” its intent such that IHS’
interpretation is required by the statutory language.
Chevron, 467 U.S. at 843; see also Air Transp. Ass'n of Am. v.
FAA, 169 F.3d 1, 4 (D.C. Cir. 1999) (“Although the inference
petitioner would draw as to the statute's meaning is not by any
means unreasonable, it is also not inevitable.”). It is plain
8 True, the Manual also states that facility costs may be funded
as contract support costs in “extremely rare” circumstances. IHM
Ex. 6-3-G § C. However, the Manual goes on to clarify that those
“extremely rare circumstances” exist “when the awardee did not
receive funds” in the Secretarial amount. Id. CITC argues just
that. See infra Sec. IV.C.
24
that facility support costs may be activities “normally” carried
on by IHS but may also be “reasonable costs for activities which
must be carried on by a tribal organization as contractor to
ensure compliance with the terms of the contract and prudent
management,” as CITC argues. 25 U.S.C. § 5325(a)(2).
Thus, the Court concludes that the ISDEAA’s funding
provision is ambiguous: it is “fairly capable of two
interpretations,” and the tribe’s “interpretation is fairly
possible.” Chickasaw Nation, 534 U.S. at 94 (quotations
omitted).
C. CITC’s Interpretation is Reasonable in Light of IHS’
Guidance
Because the Court finds the provision at issue to be
ambiguous, the Court must liberally construe it in CITC’s favor.
Blackfeet Tribe, 471 U.S. at 766. CITC argues that facility
support costs are eligible as contract support costs because
they are “reasonable costs for activities which must be carried
on by a tribal organization as contractor” pursuant to 25 U.S.C.
§ 5325(a)(2). See Pl.’s MSJ, ECF No. 13-1 at 1. As such, IHS
“shall” approve the contract proposal and fund the requested
facility support costs as a contract support costs. Id. at 5(quoting 25 U.S.C. § 5325(a)(2)). CITC argues that this
interpretation is consistent with IHS’ Manual. See id. at 11-12;
Pl.’s Reply, ECF No. 18 at 4-14. IHS also relies on its Manual
25
to argue that CITC’s interpretation is not reasonable because
facility support costs are clearly and exclusively included in
the Secretarial amount. See Defs.’ MSJ, ECF No. 15 at 11-12, 17
“Although not the only plausible interpretation, [CITC’s]
interpretation is a reasonable one.” Maniilaq Ass’n, 170 F.
Supp. 3d at 251. In Maniilaq Association, Judge Bates found
another provision of the ISDEAA to be ambiguous. Id. at 249-51
(analyzing 25 U.S.C. § 5324(l), which entitles tribal
contractors to an unexplained amount of compensation for leases,
which “may include” “reasonable expenses” associated with the
lease). In light of the statute’s ambiguous language and IHS’
contradictory guidance interpreting such language, Judge Bates
found that the tribe’s interpretation was reasonable because it
found “some support” in IHS’ guidance. Id. at 251 (construing
all ambiguities in favor of the tribe). So here too. While IHS’
regulations do not directly address the issue before the Court,
IHS’ guidance contradicts its interpretation, and CITC’s
interpretation finds “some support” in the Manual. Id.Because “the ISDEAA does not provide any formula or
methodology for calculating [contract support costs],” IHS
developed the Manual to “provide[] guidance to both Tribal and
Agency personnel in the preparation and negotiation of requests
for [contract support costs].” Defs.’ MSJ, ECF No. 15 at 11; see
also IHM § 6-3.1. The Manual is not a regulation and is
26
therefore not binding on the agency or the tribes, see IHM § 6-
3.1, but it is cited frequently by IHS as evidence that its
interpretation is compelled by the ISDEAA, see generally Defs.’
MSJ, ECF No. 15. As IHS states, the Manual “provides specific
guidance for each category of [contract support costs]” and
“provides guidance on whether other specific costs are eligible
for [contract support costs] funding.” Defs.’ MSJ, ECF No. 15 at
12. In fact, the self-determination contract between CITC and
IHS incorporates the Manual to the extent it is not inconsistent
with the ISDEAA. A.R., ECF No. 11-1 at 21 § (2)(7)(A) (contract
support costs shall be “recalculated as necessary to reflect the
full [contract support costs] required [under the ISDEAA] . . .
as specified in the IHS Manual Part 6, Chapter 3.”).
The Manual contemplates that facility support costs may be
eligible for contract support costs funding. It defines direct
contract support costs as described in the statute, 25 U.S.C. §
5325(a)(2)-(3), and provides “examples” of “direct costs
eligible for [contract support costs] funding.” IHM § 6-
3.2(D)(1)(e). Included in the list of eligible examples is
“facility support costs to the extent not already made
available.” Id. The Manual also contemplates that facility
support costs can also be “indirect costs” that are eligible for
contract support cost funding pursuant to 25 U.S.C. §
5325(a)(2)-(3). IHM Ex. 6-3-G § (A)(2)(C). To illustrate,
27
pursuant to the Manual “indirect-type costs” “normally” consist
of cost categories that fall within the requirements of the
contract support costs definitional subsections. Id. These
indirect-type costs “generally” fall into three categories, one
of which is “facilities and equipment.” Id.
The Manual therefore suggests that facility support costs
may be funded as both Secretarial funding and contract support
costs funding, so long as there are no duplicate payments. For
example, in a Manual exhibit describing IHS’ “standards for
review and approval of contract support costs,” IHS elaborates
that “rent/utilities” are “generally . . . not included in the
[direct contract support costs] requirement.” IHM Ex. 6-3-G § C.
It clarifies that facility support costs are eligible as
contract support costs in “extremely rare circumstances when the
awardee did not receive the funds in the Section 5321(a)(1)
[Secretarial funding] amount.” Id. IHS frequently points to this
language to support its argument that facility support costs
must be included in the Secretarial amount. See generally Defs.’
MSJ, ECF No. 15. However, the Manual makes clear that facility
support costs may be funded as contract support costs when they
not provided within the Secretarial amount, as CITC argues is
the case here. See IHM Ex. 6-3-G § C; IHM § 6-3.2(D)(1)(e)
(“examples” of “direct costs eligible for [contract support
costs] funding” include “facility support costs to the extent
28
not already made available”). Indeed, in 1994 Congress amended
the ISDEAA to make available contract support costs funding for
costs not otherwise provided for in the Secretarial amount. See
S. Rep. No. 103-374, at 9 (1994) (“[i]n the event the
Secretarial amount . . . for a particular function proves to be
insufficient in light of a contractor’s needs for prudent
management of the contract, contract support costs are to be
available to supplement such sums”). Thus, the Manual does not
foreclose the possibility that facility support costs may be
funded as contract support costs, albeit in limited
circumstances when not otherwise provided.
In sum, the Manual—a document created by IHS to provide
instructional guidance regarding an ambiguous statutory
provision—separately states that facility support costs can be
provided as: (1) “direct” contract support costs funding; (2)
“indirect-type” costs normally eligible for contract support
costs funding; and (3) “generally” included in the Secretarial
amount. See IHM §§ 6-3.1, et. seq.; IHM Ex. 6-3-G. Given this
contradictory guidance, and construing all ambiguities in CITC’s
favor, CITC’s interpretation that facility support costs may
also be funded as contract support costs to the extent not
already provided is imminently reasonable. See also Maniilaq
Ass’n, 170 F. Supp. 3d at 251 (concluding that the tribe’s
29
interpretation, which found “some support” in the contradictory
regulations, was reasonable).
D. IHS’ Interpretation is Not Compelled by the ISDEAA
IHS argues that its declination decision was compelled by
the ISDEAA. First, IHS highlights the Manual language that
“rent/utilities” are only eligible as direct contract support
costs in “extremely rare circumstances.” See, e.g., Defs.’ MSJ,
ECF No. 15 at 17 (quoting IHM Exhibit 6-3-G). However, the
Manual suggests that facility support costs could be eligible
for contract support costs funding when not otherwise made
available in the Secretarial amount. As discussed, “facility
support costs” may be eligible for direct contract support costs
funding “to the extent not already made available.” IHM § 6-
3.2(D)(1)(e) (listing examples of direct contract support costs
and including facility support costs); see also S. Rep. No. 103-
374, at 9 (1994) (“[i]n the event the Secretarial amount . . .
for a particular function proves to be insufficient in light of
a contractor’s needs for prudent management of the contract,
contract support costs are to be available to supplement such
sums”). Furthermore, IHS acknowledges that activities that
should be included in the Secretarial amount could nonetheless
be eligible for contract support funding “upon a showing that
the IHS did not actually transfer any funding to the tribe for
the related activity.” Defs.’ Reply, ECF No. 21 at 10, n.28
30
(discussing the Manual). CITC argues just that: IHS has not
transferred funding for facility support costs beyond the
$11,838.50 provided annually since 1992. See Pl.’s Reply, ECF
No. 18 at 16-18. Thus, the necessary facility support cost
funding has not been “made available” and may therefore be
eligible as contract support costs funding. See id.
Second, IHS repeatedly argues that CITC has already
received facility support costs funding in its Secretarial
amount, Defs.’ MSJ, ECF No. 15 at 4, 5, 7; Defs.’ Stmt., ECF No.
15-1 ¶ 8, and that if IHS “pa[id] these costs again as [contract
support costs], [IHS] would violate [the ISDEAA provision] that
prohibits the payment of [contract support costs] for costs
already included in the contractor’s program funding,” A.R., ECF
No. 11-1 at 3. The parties do not dispute that CITC was funded
$11,838.50 in 1992 for facility support costs, and that the
funding was included in the Secretarial amount. Pl.’s Stmt., ECF
No. 13-2 ¶ 4; Defs.’ MSJ, ECF No. 15 at 18. IHS contends that
facility support costs funding has since increased and has been
accounted for in CITC’s Secretarial amount. Defs.’ MSJ, ECF No.
15 at 16-18. IHS fails, however, to cite to any evidence in the
record or to otherwise support this assertion. See generally
id.; Defs.’ Stmt., ECF No. 15-1. Indeed, the Court reviewed the
hundreds of pages of administrative record and could not locate
any documentation supporting IHS’ claim that funding for
31
facility support costs within the Secretarial amount has
increased. See generally A.R., ECF Nos. 11, 17, 20; IHS Answer,
ECF No. 7 ¶ 19 (IHS “has no knowledge of how much of [the lump
sum funding amount] Plaintiff spends for facility costs”).
IHS posits that it is “irrelevant” that it cannot show how
much facility funding has been provided to CITC beyond the
$11,838.50 provided annually since 1992. Defs.’ Reply, ECF No.
21 at 15. The Court disagrees. As discussed at length supra, the
Manual provides that facility support costs may be eligible for
contract support costs funding to the extent they are not
provided in the Secretarial amount. IHM § 6-3.2(D)(1)(e).
Accordingly, IHS has not met its burden to establish that
facility support costs beyond the $11,838.50 were provided in
CITC’s Secretarial amount. In fact, the only support that IHS
cites in its “Statement of Material Facts Not in Dispute” is
CITC’s complaint and its own July 7, 2014 letter declining
CITC’s proposed contract amendment. See Defs.’ Stmt., ECF No.
15-1 ¶ 8 (citing Compl., ECF No. 1 ¶¶ 2, 28, 33); see id. ¶ 13
(citing “Exhibit 3 9 (July 7, 2014 Declination Letter)”). Neither
the complaint nor the declination letter establishes that CITC’s
9 IHS did not attach an “Exhibit 3” to its motion for summary
judgment. See ECF No. 15. Fortunately, the Court was able to
review the July 7, 2014 declination letter—cited as “Exhibit 3”
in IHS’ statement of undisputed facts—because it was included in
the administrative record. See A.R., ECF No. 11-1 at 2-3.
32
increased facility support costs were provided in the
Secretarial amount.
Third, IHS argues that because facility support costs were
originally included in CITC’s Secretarial amount, these costs
must always be included in that amount. Essentially, IHS
contends that the ISDEAA clearly mandates that activities may
only be funded by one type of funding. See Defs.’ Stmt., ECF No.
15-1 ¶ 8; Defs.’ MSJ, ECF No. 15 at 18; see also Defs.’ Reply,
ECF No. 21 at 6, 17. The Court disagrees. The statute, IHS’
regulations, and the Manual suggest that activities can be
funded both in the Secretarial amount and as contract support
costs, so long as the funds are not duplicative. See generally
25 U.S.C. § 5325(a).
To illustrate, to “clarify[]” eligible contract support
costs, the Manual includes guidelines for calculating direct
contract support costs. IHM Ex. 6-3-G. To compute the amount
required, “the awardee and the IHS must negotiate the total cost
. . . of the activities to be supported with [contract support
cost funding]. After . . . , the Agency will deduct any funds
that may have been provided to the awardee in the Secretarial
amount for this activity to avoid the duplication of costs.” Id.§ C. Thus, the Manual contemplates that certain activities may
be funded via both types of funding, so long as the payments are
not duplicative. See id. Indeed, IHS acknowledges that at least
33
one activity is funded by both Secretarial funding and contract
support costs funding. See Defs.’ Reply, ECF No. 21 at 10-11.
According to IHS, “fringe benefits” are “treated differently”
than other types of activities because they are funded as both
Secretarial costs and contract support costs. See id.; see also
IHM Ex. 6-3-G § C (“Fringe benefits have historically
constituted . . . [direct contract support costs]. The Agency
reviews the documented [fringe benefits] amounts requested by
the awardee and deducts the amount provided as part of the
[Secretarial] amount to the awardee.”).
IHS regulations also contradict IHS’ third argument. While
the regulations do not interpret the funding provision at issue,
they do provide that some activities may be funded from multiple
sources. For example, a tribe is entitled to compensation and
costs related to leases under the ISDEAA. See 25 U.S.C. §
5324(l). IHS regulations state that the “same types of costs”
associated with leases “may be recovered in whole or in part” in
the tribe’s Secretarial amount or as lease compensation pursuant
to section 5324(l). See 25 C.F.R. § 900.73 (referring to 25
C.F.R. § 900.70 and 25 U.S.C. § 5325(a)(1)); see also Maniilaq
Ass’n, 170 F. Supp. 3d at 252 (“[the regulation] appears to
designate section 105(l) leases and [secretarial] funding as
equivalent methods of tribal cost recovery.”). Not unlike the
Manual’s guidance, IHS’ regulations undermine its argument that
34
activities are funded exclusively in one category. See Defs.’
Reply, ECF No. 21 at 2-3.
Indeed, the ISDEAA provision prohibiting duplicate funding
is necessary only because activities may be funded in both the
Secretarial amount and as contract support costs. See 25 U.S.C.
§ 5325(a)(3)(A). If there was no overlap between the two funding
provisions, as IHS contends, this section of the statute would
be superfluous. See United States v. Jicarilla Apache
Nation, 564 U.S. 162, 185 (2011) (“As our cases have noted in
the past, we are hesitant to adopt an interpretation of a
congressional enactment which renders superfluous another
portion of that same law”) (quotations omitted). And there would
be no need to “deduct any funds” from the contract support costs
funding that “may have been provided . . . in the [S]ecretarial
amount” because any activity included in the Secretarial amount
would be categorically disqualified from contract support costs
funding. See IHM Ex. 6-3-G § C.
Ultimately, IHS’ conclusion that all facility support costs
must be funded in the Secretarial amount because some have been
since 1992 is not “compelled by the statute and the regulations”
or even IHS’ own guidance. Maniilaq Ass’n, 170 F. Supp. 3d at
252-54 (concluding that the HHS Secretary’s interpretation of
the ISDEAA was not compelled by the statute and regulations
after determining that the statute was vague and the tribe’s
35
interpretation was reasonable). As in Maniilaq Association,
“[t]hese questions pose serious problems for the Secretary's
interpretation, which the Secretary has not adequately
addressed.” Id. at 254.
E. Remand is the Appropriate Remedy
The Court finds that IHS’ declination decision was not
clearly required by the ISDEAA, as non-duplicative facility
support costs may reasonably be funded as contract support
costs. Thus, IHS has not clearly demonstrated that the funds
requested are “in excess of the applicable funding level for the
contract.” See A.R., ECF No. 11-1 at 2-3 (Declination Letter).
Mindful of the government’s obligation to “clearly demonstrate”
the declination criteria, 25 U.S.C. § 5321(a)(2), and the
Court’s obligation to construe the ISDEAA “liberally in favor
of” CITC, Chickasaw Nation, 534 U.S. at 93, the Court hereby
grants in part CITC’s motion for summary judgment and denies the
defendants’ cross-motion for summary judgment.
That leaves only the issue of remedy. Unlike Secretarial
funding—which is committed to the agency’s discretion, see 25
U.S.C. § 5325(a)(1)(“the amount of funds provided . . . shall
not be less than the appropriate Secretary would have otherwise
provided”)—contract support funding is not, see id. §
5325(a)(2). As such, the “government cannot back out of its
contractual promise to pay each Tribe’s full contract support
36
costs.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 194
(2012); Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1344
(D.C. Cir. 1996)(“Congress has clearly expressed in the [ISDEAA]
both its intent to circumscribe as tightly as possible the
discretion of the Secretary . . . . Congress left the Secretary
with as little discretion as feasible in the allocation of
[contract support funds].”)(citations omitted).
CITC asks the Court to reverse IHS’ declination decision,
declare that CITC’s contract amendment proposal is approved, and
order immediate injunctive relief by awarding an additional
$467,201.50 10 in contract support costs funding to CITC’s 2014
contract. Pl.’s MSJ, ECF No. 13-1 at 20.
The Court will vacate the Secretary's declination decision
but stop short of granting the other specific relief that CITC
requests. The ISDEAA authorizes the Court to “order appropriate
relief including money damages, injunctive relief . . . , or
mandamus to compel an officer or employee of the United States,
or any agency thereof, to perform a duty . . . (including . . .
to compel the Secretary to award and fund an approved self-
determination contract).” 25 U.S.C. § 5331(a). Here, however,
the record does not contain sufficient documentation to support
10This amount reflects the $479,040 CITC requests for facility
support costs less the $11,838.50 it has been awarded annually
since 1992. See Pl.’s MSJ, ECF No. 13-1 at 20.
37
CITC’s full request. See generally A.R., ECF Nos. 11, 17, 20.
For example, the Court cannot assure itself that the $467,201.50
requested reflects the “reasonable and allowable costs” for
facility support costs funding pursuant to 25 U.S.C. §
5325(a)(2),(3). Moreover, because the administrative record does
not contain any information regarding the facility support costs
paid via the Secretarial amount, the Court cannot assure itself
that CITC’s request does not duplicate any funding already
provided. See A.R., ECF Nos. 11-1, 17, 20; 25 U.S.C. §
5325(a)(3)(A).
Therefore, the Court will remand CITC’s contract proposal
to IHS for a decision consistent with this Memorandum Opinion.
See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (“the
proper course . . . is to remand to the agency for additional
investigation” when “the record before the agency does not
support the agency action, if the agency has not considered all
relevant factors, or if the reviewing court simply cannot
evaluate the challenged action on the basis of the record before
it”). As the record stands now, there is insufficient
information for the Court to determine the amount CITC is owed
for facility support costs. As this Opinion makes clear,
however, CITC’s contract amendment proposal was improperly
declined. Therefore, on remand, IHS must review CITC’s proposal
in a manner consistent with this Memorandum Opinion and
38
determine the amount of facility support costs that should be
funded as contract support costs beginning with the 2014
contract to date.
V. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
CITC’s motion for summary judgment and DENIES defendants’ cross-
motion for summary judgment. IHS’ declination decision is
VACATED. CITC’s contract amendment proposal is REMANDED to IHS
for a determination consistent with this Memorandum Opinion
regarding the amount of facility support costs that should be
funded as contract support costs, beginning with the 2014
contract to present. The Clerk of Court is directed to close
this case, with such closure being without prejudice to a motion
to re-open following further IHS proceedings. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
November 7, 2018
39