Red Lake Band of Chippewa Indians v. United States of America Department of the Interior ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RED LAKE BAND OF CHIPPEWA
INDIANS,
Plaintiff,
Civil Action No. 06-1826 (CKK)
v.
U.S. DEPARTMENT OF THE INTERIOR,
et al.,
Defendants.
MEMORANDUM OPINION
(March 19, 2009)
Plaintiff Red Lake Band of Chippewa Indians (“Plaintiff” or the “Tribe”) filed the instant
lawsuit against Defendants, the United States Department of Interior (“Department”) and Ken
Salazar in his official capacity as Secretary of the Department1 (“Secretary,” collectively with the
Department, “Defendants”), alleging that Defendants breached provisions of the parties’
Compact of Self-Governance and accompanying agreements entered into pursuant to the Indian
Self-Determination and Education Assistance Act, 25 U.S.C. § 450, et seq. (“ISDEAA” or the
“Act”). Specifically, Plaintiff alleges that Defendants failed to obtain, assist Plaintiff in
obtaining, and/or request funding for the Tribe’s new juvenile correction facility in breach of the
parties’ agreement. In addition, Plaintiff claims that Defendants failed to notify the Tribe of the
availability of year-end funding in breach of the parties’ agreement. Finally, Plaintiff alleges that
Defendants failed to timely provide Plaintiff with certain “pay cost” analyses and also failed to
1
Secretary Salazar is automatically substituted for Dirk Kempthorne, pursuant to Federal
Rule of Civil Procedure 25(d).
provide the Tribe with the full amount of pay cost increases as required under the terms of the
parties’ contract.
Currently pending before the Court are Plaintiff’s [16] Motion for Summary Judgment on
Counts I and III and for Partial Summary Judgment as to Count II and Defendants’ [17] Cross-
Motion for Summary Judgment as to Counts I - IV. After thoroughly reviewing all of the parties’
submissions, including the attachments thereto, applicable case law, statutory authority, and the
record of the case as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART
Plaintiff’s Motion for Summary Judgment and shall GRANT-IN-PART and DENY-IN-PART
Defendants’ Cross-Motion for Summary Judgment. Specifically, the Court shall GRANT
Plaintiff’s Motion for Summary Judgment as to Count III, but shall DENY Plaintiff’s Motion for
Summary as to Counts I and II, and shall GRANT Defendants’ Cross-Motion for Summary
Judgment as to Count II, but shall DENY Defendants’ Cross-Motion for Summary Judgment as
to Counts I, III, and IV, for the reasons that follow.
I. BACKGROUND
A. The ISDEAA
The purpose of the ISDEAA, 25 U.S.C. § 450 et seq., is to “assure maximum
participation by Indian tribes in the planning and administration of federal services, programs and
activities for Indian communities.” S. Rep. No. 100-274 at 1 (1988), reprinted at 1988
U.S.C.C.A.N 2620, 2620. Accordingly, the ISDEAA authorizes federal agencies, such as the
Department, to enter into contracts with Indian tribes in which the tribes promise to supply
federally funded services, for example tribal law enforcement services, that a federal agency
would otherwise provide. Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, 634 (2005).
2
“More specifically, under the [IDSEAA], the [Secretary] continue[s] to provide direct services to
a tribe until such time as the tribe chooses to enter into a ‘self-determination contract’ to operate
those services. At that point, the [Secretary] [is] required to transfer resources and control of
those programs to the tribe.” Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1456 (10th Cir.
1997). The Act is thus intended, in part, to also “remov[e] the financial burden incurred by tribes
and tribal organizations when implementing federal programs under self-determination
contracts.” Id. at 1367.
B. The Parties and their Contract
Plaintiff is a federally recognized Indian tribe. Pl.’s Stmt. ¶ 1.2 Secretary Salazar has
2
As a preliminary matter, the Court notes that it strictly adheres to the text of Local Civil
Rule 7(h)(1) (formerly 56.1 when resolving motions for summary judgment). See Burke v.
Gould, 286 F.3d 513, 519 (D.C. Cir. 2002) (district courts need to invoke Local Civil Rule 56.1
before applying it to the case). The Court has repeatedly advised the parties that it strictly
adheres to Rule 7(h) and has stated that “[a]t all points, parties must furnish precise citations to
the portions of the record on which they rely.” See 4/25/07 Order, Docket No. [10], at 4-5;
5/19/08 Order, Docket No. [15], at 2. In addition, the Court advised the parties that it “assumes
that facts identified by the moving party in its statement of material facts are admitted, unless
such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”
See 4/25/07 Order, Docket No. [10], at 4-5; 5/19/08 Order, Docket No. [15], at 2. The Court
notes, however, that the parties did not fully comply with the local rules, as required. First,
although both Plaintiff and Defendants filed a statement of material facts, Defendants’ Statement
contains several factual assertions for which Defendants did not provide any citation to the
record, as required. The Court does not credit any such statements made in violation of the local
rules. Second, Plaintiff failed to file a response to Defendants’ Statement of Material Facts, as
required. Accordingly, to the extent Defendants’ Statement is supported by the record, the Court
shall treat Defendants’ factual assertions as admitted. Nonetheless, where the parties have in fact
complied with the local rules, the Court shall cite directly to Plaintiff’s Statement of Material
Facts (“Pl.’s Stmt.”) or Defendant’s Statement of Material Facts (“Defs.’ Stmt.”) unless a
statement is contradicted by the opposing party. Where a party (here, Defendants, as Plaintiff
filed no response) objects to relevant aspects of Plaintiff’s proffered material fact, the Court shall
also cite to Defendants’ Response to Pl.’s Stmt. (“Defs.’ Resp. Stmt.”), as necessary. Finally, the
Court shall cite directly to evidence in the record, where appropriate.
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overall responsibility for administering the Department as well as overseeing its constituent
agencies, including the Bureau of Indian Affairs (“BIA”) and managing certain Indian affairs and
appropriations. Id. ¶ 2. The Office of Self-Governance (“OSG”) is the office within the
Department responsible for administering the Secretary’s tribal self-governance program,
including BIA programs. Id. ¶ 3.
On or about January 14, 1997, Plaintiff and the Department entered into a Compact of
Self-Governance (“Compact”) pursuant to the ISDEAA. Id. ¶ 5; Defs.’ Stmt. ¶ 1. The Compact
enabled the Tribe to “plan, conduct, and administer programs and services to the extent as
provided in the annual funding agreement.” Defs.’ Stmt. ¶ 1. This goal is reflected in the text of
the Compact itself, which provides that the Compact is intended to:
[C]arry out Self-Governance as authorized by [the ISDEAA], which . . . transfers
control to tribal governments, upon tribal request, over funding and decision making
of Federal programs, services, functions and activities as an effective way to
implement the federal policy of government-to-government relations with Indian
tribes.
Pl.’s Mot., Ex. A (Compact), Art. I § 2(a).
In addition, as is relevant here, the Compact includes a provision, entitled “funding
amount,” which provides that:
Subject only to the appropriation of funds by the Congress of the United States . .
., the Secretary or an authorized representative shall provide to the Tribe the total
amount specified in the Annual Agreement incorporated by reference. . . .
Id.
On or about November 15, 2004, pursuant to the Compact, Plaintiff and Defendants
entered into a Multi-Year Funding Agreement (“Agreement”) for 2005-2010. Pl.’s Stmt. ¶ 10;
Defs.’ Resp. ¶ 10. The Agreement is amended annually by the parties pursuant to a
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“reprogramming request,” and provides that “[t]he Tribe assumes all operational responsibility
for all programs, functions, services, and activities as reflected in the REPROGRAMMING
REQUEST . . . .” Pl.’s Stmt. ¶¶ 10-11; Defs.’ Resp. ¶ 10-11; Pl.’s Mot., Ex. B (Agreement and
2005 Reprogramming Request). At issue are the parties’ 2005 and 2006 reprogramming
requests, which are discussed below.
1. 2005 Reprogramming Request
Count I of Plaintiff’s Complaint involves the reprogramming request for the year 2005,
entitled the 2005 Annual Funding Agreement - Reprogramming Request (“2005 Reprogramming
Request”), which is attached to the Agreement. Pl.’s Stmt. ¶ 10; Defs.’ Resp. ¶ 10; Pl.’s Mot.
Ex. B (Agreement and 2005 Reprogramming Request); see also Compl. ¶¶ 48-52. Subject to the
terms of the Compact and Agreement, the 2005 Reprogramming Request generally sets forth the
funds to be provided in 2005 by the United States to the Tribe for the provision of the agreed
upon services. Pl.’s Stmt. ¶ 10; Defs.’ Resp. ¶ 10; Pl.’s Mot., Ex. B (Agreement and 2005
Reprogramming Request). Specifically, the 2005 Reprogramming Request sets forth by line item
and program title the parties’ agreement as to the funds to be provided. See Pl.’s Stmt. ¶ 14;
Defs.’ Resp. ¶ 14; see also Pl.’s Mot., Ex. B (Agreement and 2005 Reprogramming Request).
The heart of Plaintiff’s claims as to the 2005 Reprogramming Request is line item no.
177 of the 2005 Reprogramming Request, see Compl. ¶¶ 48-52, which provides as follows:
Line Program Title Cost Info OSG OSG OSG BIA Total FN
# Code (Tribal Cum. Shortfall Shortfall Reprogram AFA
Share) Base Base Request Request
177 Law 37700 0 0 5,283 0 4,576,753 4,582,036 25
Enforcement -
NON TPA
5
Pl.’s Mot., Ex. B (Agreement and 2005 Reprogramming Request), at 10. As indicated in the last
column, line item no. 177 also contains a footnote, specifically footnote no. 25, which in turn
provides, inter alia, that:
The BIA agrees to assist the Tribe in obtaining $1,218,482 for operations funding for
the Tribes [sic] juvenile correction facility3 in CY 2005, and to request this amount
in the next Presidents [sic] budget.
Pl.’s Stmt. ¶ 16; Pl.’s Mot., Ex. B (Agreement and 2005 Reprogramming Request), at 14.
According to Plaintiff, line item no. 177, together with footnote 25, obligated Defendants to do
two things: (1) to obtain $1,218,482 in funding for the Tribe’s juvenile correction center in
calendar year (“CY”) 2005, or, in the alternative, to assist the Tribe in obtaining such funding;
and (2) to request this same amount of funding in the next President’s budget. Pl.’s Compl. ¶¶
48-52.
As to Plaintiff’s first allegation, it is undisputed that the Tribe did not receive $1,218,482
in CY 2005 operations funding for the juvenile correction center. Pl.’s Stmt. ¶ 17. Moreover,
BIA officials testified that BIA did not provide any assistance to the Tribe in obtaining the
3
Regarding the reference to a “juvenile correction facility”in footnote 25, Plaintiff
explains that the Tribe had previously used Department of Justice and BIA grant funds to design
and construct two correction facilities comprising parts of the Red Lake Law Enforcement
Complex: a Phase I facility housing medium and minimum security adults and juveniles, and a
Phase III facility housing minimum security juveniles in a rehabilitative setting. Pl.’s Stmt. ¶¶ 8-
9. The reference in footnote 25 is to the Phase III facility. Although the parties dispute whether
the facility is appropriately characterized as a “detention facility” or as a “work camp,” see Pl.’s
Stmt. ¶ 8; Defs.’ Resp. ¶ 8, the Court need not resolve this issue as neither party’s arguments now
before the Court depend upon or otherwise implicate the proper characterization of the Phase III
facility. Accordingly, because the proper characterization of the facility is not material to the
issues at hand, the Court shall, for ease of convenience, refer to the facility as it is described in
the 2005 Reprogramming Request, i.e., as a “juvenile correction facility”—although the Court
expressly does not take a position on whether the description is factually accurate.
6
specified funding. Specifically, the head of BIA’s Office of Justice Services, Christopher
Chaney, testified that BIA did not provide any assistance to the Tribe in obtaining staffing and
program operations funding for the juvenile correction facility in CY 2005. Id. ¶ 18. In addition,
Patrick Ragsdale, the Director of BIA, testified that he was not aware of any efforts by BIA to
obtain staffing and program operations funding in CY 2005 for the facility in question. Id. ¶ 19.
Finally, Kenneth Feinfeld, the Acting Director of the OSG and the person who executed the 2005
Reprogramming Request on behalf of the United States, testified that he personally did not make
any efforts to obtain staffing and program operations funding for the Tribe’s juvenile correction
facility in CY 2005. Id. ¶ 20. Defendants do not dispute this, see Defs.’ Resp. ¶¶ 18-20, nor
have Defendants offered any evidence to the contrary, see generally Defs.’ Stmt.
As concerns the second allegation, there appears to be some dispute as to whether the
language stating that BIA “request this amount in the next Presidents [sic] budget” refers to the
President’s budget for fiscal year (“FY”) 2006 or FY 2007. See Pl.’s Stmt. ¶ 21 (stating that, as
the 2005 Reprogramming Request was negotiated and executed in the fall of 2004, the next
President’s budget was for FY 2006); Defs.’ Stmt. ¶ 21 (denying Pl.’s Stmt. ¶ 21 and suggesting
that the Agreement was not effective until after the budget had been finalized for FY 2006).
Nonetheless, it is undisputed that Defendants did not include a request for $1,218,482 for the
Tribe’s juvenile correction facility in the President’s budget for either FY 2006 or FY 2007.
Pl.’s Stmt. ¶¶ 22-23.
In addition, Plaintiff has proffered undisputed evidence concerning the Department’s
budget for BIA Public Safety and Justice law enforcement programs—i.e., the likely source of
any potential funding for the juvenile correction facility— during the years in question. As
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Plaintiff emphasizes, Chaney, the head of BIA’s Office of Justice Services, testified at deposition
that the Department had experienced “significant funding increases for Indian country correction
facilities for staffing and operation” in FY 2005 and FY 2006. Pl.’ Stmt. ¶ 32; Defs.’ Resp. ¶ 32;
Pl.’s Mot., Ex. E (Chaney Dep.) at 47:4-15, 48:12-17. More specifically, the parties agree that:
• In FY 2005, Congress appropriated $180,063,000 for BIA’s Public Safety and
Justice law enforcement and correction facilities, which equaled an increase of
$7,568,000 over what was appropriated for the same purposes in FY 2004. Pl.’s
Stmt. ¶ 33.
• In FY 2006, the President’s budget requested $192,265,000 for BIA Public Safety
and Justice law enforcement programs, including funding for the operation of
correction services, programs, and facilities. Id. ¶ 34. Congress subsequently
increased this funding request by an additional $1.1 million, appropriating a total
of $193,377,000, an increase of $13,314,000 over what was appropriated for the
same purposes in FY 2005. Id. ¶ 35.
• In FY 2007, the Department requested a lump sum of $201,620,000 in the
President’s budget for BIA Public Safety and Justice law enforcement programs,
including funding for operation of correction services, programs, and facilities.
Id. ¶ 36. Congress again increased the funding over and above the requested
amount, appropriating a total of $204,454,00, an increase of $11,077,00 over
what was appropriated for the same purposes in FY 2006. Id. ¶ 37.
2. 2006 Reprogramming Request
In January of 2006, the Tribe and Defendants completed bilateral negotiations on a Fourth
Amendment to the Multi-Year Funding Agreement for 2005-2010 (“Fourth Amendment”) and an
associated “Self Governance 2006 Annual Funding Agreement - Reprogramming Request”
(“2006 Reprogramming Request”). Pl.’s Stmt. ¶ 24; see also Pl.’s Mot., Ex. l (Fourth
Amendment and attached 2006 Reprogramming Request). Counts II through IV of Plaintiff’s
Complaint focus on the Fourth Amendment and the 2006 Reprogramming Request.
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i. Year-end funding
Count II of Plaintiff’s Complaint centers on section 17 of the Agreement and the Fourth
Amendment, which both contain the following identical language:
Additional Funds - If the Midwest Region Office of the BIA receives notice of the
availability of any additional funding in any fiscal year for any purpose, including any
unspent funds, that the Tribe is eligible to apply for or receive, then it must notify the
Tribe as soon as possible about such funds so that the Tribe may access or apply for
those funds. The Midwest Region Office commits to keeping the Tribe informed of
the existence of funding immediately upon learning of its existence.
Pl.’s Stmt. ¶ 41; see also Pl.’s Mot, Ex. B (Agreement) at 4 (emphasis in original); id., Ex. L
(Fourth Amendment) at 4 (emphasis in original). Plaintiff also directs the Court to Article IV,
Section IV of the Compact, which states that “[t]he Tribe shall be eligible for new programs,
activities, services and functions on the same basis as other tribes and the Secretary or his
authorized representative shall advise the Tribe of the funding available for such programs.”
Pl.’s Stmt. ¶ 42; see also Pl.’s Mot., Ex. A (Compact) at 12.
In September of 2006, the BIA Midwest Regional Office received and distributed FY
2006 year-end funds4 to five of the thirty-five Indian tribes and tribal organizations within the
BIA Midwest Region. Pl.’s Stmt. ¶ 43; Defs.’ Resp. ¶ 43. The Tribe, however, was not
informed about the availability of these funds until weeks after they were distributed, and did not
receive any of these year-end funds. Pl.’s Stmt. ¶¶ 44-45. Defendants later explained that the
4
There is a dispute between the parties as to the exact amount of the funds distributed by
the BIA Midwest Regional Office. According to Plaintiff, the office distributed approximately
$200,000 in FY 2006 year-end funds, Pl.’s Stmt. ¶ 43, while Defendants assert that the office in
fact distributed only $85,000, Defs.’ Resp. ¶ 43. For the reasons discussed below, the Court
finds that this dispute is not material to the resolution of the parties’ motions for summary
judgment. See infra at 34 n. 9.
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BIA Central Office had made a decision to distribute the year-end funds only to tribes having
contracts under Title I of Public Law 93-638 (codified at 25 U.S.C. § 450f), and not to
tribes—like Plaintiff—having contracts under Title IV of Public Law 93-638 (codified at 25
U.S.C. § 458cc). Id. ¶ 46. BIA Director Ragsdale explained at his deposition that, although the
latter self-governance tribes, including Plaintiff, were technically eligible for the year-end funds,
those tribes were excluded from the year-end funds distribution because, as a practical matter, the
OSG did not have an adequate process in place to distribute the funds to those tribes:
Self-governance tribes [such as Plaintiff] were eligible for funds, but my
understanding is [] that the money had to be obligated within a very short period of
time and the Bureau’s mechanism through the Office of Self-Governance could not
mechanically do that. So the self-governance tribes were excluded from that—from
that potential allocation.
Id. ¶ 48 (quoting Pl.’s Mot., Ex. K (Ragsdale Dep.) at 64:1-7)). Count II of Plaintiff’s Complaint
asserts that Defendants’ failure to notify the Tribe of these funds in a timely matter was a breach
of the parties’ agreement as quoted above. Pl.’s Compl. ¶¶ 53-57.
ii. Pay-cost reports and adjustments
Counts III and IV of the Plaintiff’s Complaint center on the 2006 Reprogramming
Request and more specifically, on language in footnote 15 to line item 103 addressing “pay
costs,” which provides inter alia:
The BIA will make every effort to treat Red Lake Tribal employees the same as all
other Tribal and Federal employees for purposes of pay cost adjustments in FY 2006
. . . . Further, the BIA and OSG agree to provide to the Tribe by April 1, 2006, a
detailed Pay Cost analysis for the years 2003-2006, showing what the Tribe was
eligible to receive each year based upon Pay Cost data the Tribe provided, the actual
amount received, and the shortfall or unfunded amount. This analysis will include
Law Enforcement. The analysis will separately show the total amounts received each
year for Self-Governance tribes, contracting tribes, and BIA programs, as well as the
total amounts the BIA was eligible to receive for these programs based upon data it
10
compiled. The above information has been requested by the Tribe to verify whether
Red Lake, other Self Governance tribes, contracting tribes, and BIA programs were
treated the same way with regard to the distribution of Pay Costs for the years 2003-
2006.
Id. ¶ 49 (quoting Pl.’s Mot., Ex. L (2006 Reprogramming Request) at 3 n. 15).
It is undisputed that BIA and OSG failed to provide a pay cost analysis to the Tribe by
April 1, 2006. Id. ¶ 50. Indeed, Defendants did not provide the pay cost analysis until they filed
their Cross-Motion and Opposition in this case, at which time Defendants attached a pay cost
report to their pleading. See Defs.’ Cross-Mot./Opp’n, Ex. A (Pay Cost Report). Plaintiffs
nonetheless allege that Defendants have not provided an adequate pay cost analysis in violation
of the parties’ agreement. Pl.’s Compl. ¶¶ 58-66.
C. Procedural History
Pursuant to the ISDEAA and the Contract Disputes Act, Plaintiff filed its Complaint in
the instant action in federal court alleging that Defendants had breached the parties’ agreement,
as set forth in the Compact, Agreement and the 2005 and 2006 Reprogramming Requests
(collectively, the “Contract”). See Compl., Docket No. [1]. Specifically, Count I of Plaintiff’s
Complaint alleges that Defendants: (a) failed to obtain and/or make its best efforts to obtain
$1,218,482 in operations funding for the juvenile correction facility in CY 2005 as agreed to in
the parties’ Contract; and (b) failed to request that same amount in the President’s budget for FY
2006 as agreed to in the parties’ Contract. Compl. ¶¶ 48-52. Plaintiff therefore seek $1,218,482
in damages for CY 2005 and an additional $1,218,482 in damages for FY 2006, plus interest. Id.
¶ 51.
Count II of Plaintiff’s Complaint alleges that Defendants failed to notify the Tribe that it
11
was eligible for FY 2006 year-end funds that were received and distributed by the BIA Midwest
Regional Office in breach of the parties’ agreement that the office would inform the Tribe as
soon as possible of any additional funding in any fiscal year for any purpose that the Tribe was
eligible to receive. Id. ¶¶ 53-57. Plaintiff seeks monetary damages, plus interest, for Defendant’s
alleged breach as to Count II. Id. ¶ 56.
Counts III of Plaintiff’s Complaint asserts that Defendants failed to provide a pay cost
analysis to the Tribe for the years 2003-2006 by April 1, 2006 as agreed to in the parties’
Contract. Id. ¶¶ 58- 62. Plaintiff seeks an order directing the Secretary to provide the Tribe with
a detailed pay cost analysis in compliance with the parties’ Contract. Id. ¶ 61.
Finally, Count IV of Plaintiff’s Complaint alleges that Defendants underpaid Plaintiff’s
pay costs in violation of Defendants’ agreement to treat the Tribe’s employees the same as all
other Tribal and Federal employees, and seeks monetary damages equal to the difference between
the amount the Tribe received and the amount the Tribe should have received for pay costs in FY
2006. Id. ¶¶ 63-66.
Plaintiff subsequently moved for summary judgment as to Counts I and III and for partial
summary judgment as to Count II. See Pl.’s Mot., Docket No. [16]. Defendants thereafter filed
their Cross-Motion for Summary Judgment as to all Counts (i.e., Counts I - IV), and Opposition
to Plaintiff’s Motion. See Defs.’ Cross-Mot./Opp’n, Docket No. [16]. Briefing on the parties’
motions is now complete and the case is ripe for adjudication. The Court therefore turns to the
merits of the parties’ arguments.
II. LEGAL STANDARDS
In this case the Court is presented with cross motions for summary judgment. A party is
12
entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there
is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as
a matter of law. See FED . R. CIV . P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
Under the summary judgment standard, the moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the opposing party must “go
beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Id. at 324.
Although a court should draw all inferences from the supporting records submitted by the
nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To be
material, the factual assertion must be capable of affecting the substantive outcome of the
litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a
reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d
1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (the court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is
merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249-50 (internal citations omitted). “Mere allegations or denials of the
13
adverse party’s pleading are not enough to prevent the issuance of summary judgment.”
Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant
bears the initial responsibility of identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (citing FED . R. CIV .
P. 56(e)) (emphasis in original).
III. DISCUSSION
As an initial matter, given that Plaintiff’s Complaint raises questions of general contract
law and alleges various claims for breach of contract, the Court must first identify the law to be
applied and the precise elements that Plaintiff must show to succeed on a breach of contract
claim. Accordingly, before turning to the merits of the parties’ arguments, the Court briefly
pauses to delineate the controlling law applicable to Plaintiff’s breach of contract claims—an
issue that, unfortunately, neither party has addressed.
First, as to the question of controlling law, the Supreme Court has held “that obligations
to and rights of the United States under its contracts are governed exclusively by federal law.”
Boyle v. United Tech. Corp., 487 U.S. 500, 504 (1988). Courts must therefore apply the federal
common law of contracts to the interpretation of contracts with the federal government. Wright
v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 180 (D.D.C. 2007) (quoting N. Side
Lumber v. Block, 753 F.3d 1482, 1484 (9th Cir. 1985)); see also United States v. Kearns, 595
F.2d 729, 732 (D.C. Cir. 1978) (“it is by now accepted that federal common law provides
14
remedies in many situations” including “[g]overnment contracts”) (citations omitted).5
Second, as to the elements of a breach of contract claim under federal law, “a party must
allege and establish: (1) a valid contract between the parties; (2) an obligation or duty arising out
of the contract; (3) a breach of that duty; and (4) damages caused by the breach.” Pryor v. United
States, 85 Fed. Cl. 97, 104 (Fed. Cl. 2008) (quoting San Carlos Irrigation and Drainage Dist. v.
United States, 877 F.2d 957, 959 (Fed. Cir. 1989)); see also Mauras v. United States, 82 Fed. Cl.
295, 299 (Fed. Cl. 2008) (same); Spectrum Sciences v. United States, 84 Fed. Cl. 716, 735 (Fed.
Cl. 2008) (same). Thus, as is particularly relevant here, a plaintiff must establish that he or she
suffered a loss or injury (often phrased as “damages”) as part of a claim for a breach of contract.
See Malissa Co., Inc. v. United States, 18 Cl. Ct. 672, 674 (Cl. Ct. 1989) (“This court has long
held that in contract cases, where plaintiff has alleged a breach of contract, the plaintiff must
shoulder the burden of establishing the fundamental facts of liability, causation, and resultant
injury.”) (internal quotation marks and citations omitted); see also Roseburg Lumber Co. v.
Madigan, 978 F.2d 660, 667 (Fed. Cir. 1992) (“Absent tangible proof of damages, appellant may
not recover for an alleged injury” under contract law.); New Valley Corp. v. United States, 67
Fed. Cl. 277, 284 (Fed. Cl. 2005) (“breach must be shown to be the proximate cause of the
alleged injury”) (quoting Record Club of Am., Inc. v. United Artists Records, Inc., 890 F.2d 1264,
5
In addition, the Court notes that Plaintiff’s Complaint invokes this Court’s jurisdiction
pursuant to 28 U.S.C. § 1331, which provides that “district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States.” Compl.
¶ 3. “Although choice of law provisions may be relevant in a diversity action, we are required to
apply federal common law when deciding federal questions.” Prudential Ins. Co. of America v.
Doe, 140 F.3d 785, 791 (8th Cir. 1998). The parties appear to agree that federal common law (as
opposed to either state or Tribal law) controls the interpretation of the parties’ Contract, as both
parties cite exclusively to federal case law in their briefing.
15
1275 (2d Cir. 1989)).
Although the parties, in their respective pleadings, have confused the issue, the Court
emphasizes that Plaintiff “bears the burden of proving the fact of loss with certainty” in
proceeding with its breach of contract claim for money damages. Willems Indust. Inc. v. United
States, 295 F.2d 822, 831 (Cl. Ct. 1962). Only once Plaintiff has proven that it in fact suffered a
loss (i.e., suffered damages), such that Defendants are liable for a breach of contract claim, does
the Court move to the next stage—i.e, the damages determination stage. See id. “Stated another
way, the measure of damages to be applied in the particular case is irrelevant until the claimant
has established the fact of losses that were the natural and proximate result of the breach of
contract.” Id.; see also Roseburg Lumber, 978 F.2d at 667-68 (plaintiff must prove threshold
issue of whether damages have actually been sustained). The Court notes that this burden is
generally not a burdensome one, as a plaintiff need only show that “responsibility for damages is
clear,” not that “the amount thereof be ascertainable with absolute exactness or mathematical
precision.” Roseburg Lumber, 978 F.2d at 668; see also Mauras, 82 Fed. Cl. at 299 (“If [a
plaintiff] eventually proves a ‘fact of damage,’ an appropriate monetary amount to remedy this
harm need not be calculated with absolute certainty.”); Pryor, 85 Fed. Cl. at 104-05 (granting
summary judgment in favor of defendant on breach of contract claims where plaintiff did not
show any injury or harm resulting from alleged breaches). Nonetheless, the case law makes clear
that a plaintiff must show the fact of an injury or loss as part of a breach of contract claim for
money damages. With that established, the Court shall now proceed to the merits of Plaintiff’s
claims.
16
A. Count I of Plaintiff’s Complaint Alleging that Defendants Failed to Assist and/or
Request Funding for the Tribe’s Juvenile Correction Center in CY 2005 and FY
2006
As stated previously, both Plaintiff and Defendants have moved for summary judgment as
to Count I of Plaintiff’s Complaint, which focuses on funding for the Tribe’s juvenile correction
center in CY 2005 and FY 2006. The Court shall examine each argument in turn.
1. Plaintiff’s Allegations that Defendants Failed to Obtain, or Alternatively to
Make their Best Efforts to Obtain, Funding in CY 2005
Plaintiff argues that Defendants breached the parties’ Contract by failing to obtain, or
alternatively, by failing to make their best efforts to obtain, funding in CY 2005 for the Tribe’s
juvenile correction center. Plaintiff makes two alternative arguments. First, Plaintiff argues that
Defendants were obligated by the parties’ Contract to obtain $1,218,482 in funding for the
juvenile correction center in CY 2005. Plaintiff directs the Court to Section 5 of the Agreement,
which provides that “the Secretary shall make available to the Tribe the total amounts of funds
negotiated as they are identified in the attached REPROGRAMMING REQUEST for Calendar
Year 2005.” Pl.’s Mot. at 12 (quoting id., Ex. B (Agreement) § 5). The 2005 Reprogramming
Request in turn specifies in line item no. 177 that Defendants shall provide the Tribe with a total
of $4,582,086 for law enforcement in CY 2005, which Plaintiff contends includes the $1,218,482
in funding for the juvenile correction facility referred to in footnote 25. Pl.’ Mot. at 12-13; Pl.’s
Opp’n/Reply at 2-3. Plaintiff therefore claims that Defendants agreed to actually provide the
Tribe with $1,218,482 in CY 2005 funding for the juvenile correction facility. Pl.’ Mot. at 12-
13; Pl.’s Opp’n/Reply at 2-3. Plaintiff further argues that the language in footnote 25 stating that
“[t]he BIA agrees to assist the Tribe in obtaining $1,218,482 for operations funding for the
17
Tribes [sic] juvenile correction facility in CY 2005” should not be read to qualify or negate the
Defendants’ agreement in line item no. 177 to in fact provide the Tribe with $4,582,086 in
funding, including the $1,218,482 in funding for the juvenile correction facility. Pl.’s Mot. 12-
13; Pl.’s Opp’n/Reply at 2-4. In other words, Plaintiff urges that the 2005 Reprogramming
Request should be read as an agreement that Defendants would actually obtain the CY 2005
funding, not just an agreement that Defendants would assist the Tribe in obtaining such funding.
Because it is undisputed that the Tribe did not receive the specified funding, Pl.’s Stmt. ¶ 17,
Plaintiff argues that Defendants breached the parties’ Contract and Plaintiff is entitled to recover
$1,218,482 in damages. Pl.’s Opp’n/Reply at 9.
Second, Plaintiff argues in the alternative that even if footnote 25 is construed to qualify
Defendants’ agreement in line item no. 177, Defendants were—at a minimum—required to make
their best efforts to obtain the specified funding for the Tribe. Pl.’s Mot. at 13- 14; Pl.’s
Opp’n/Reply at 4-5. Because Defendants concede that they made no efforts to obtain the
funding, Pl.’s Stmt. ¶¶ 18-20, Plaintiff contends that Defendants clearly breached the parties’
Contract. Pl.’s Mot. at 13-14; Reply at 4-5. Accordingly, Plaintiff asserts the Tribe is entitled to
recover its “expectation damages”—defined as the amount Plaintiff “reasonably anticipated that
defendant’s [sic] best efforts would have produced.” Pl.’s Mot. at 14. Plaintiff argues that the
Tribe reasonably anticipated that Defendants’ best efforts would result in obtaining the promised
funding and thus, the proper amount of damages is $1,218,482. Id.
Defendant counters that the plain language of footnote 25 demonstrates that Defendants
did not promise to obtain funding for CY 2005, but rather agreed only to “assist” the Tribe in
obtaining such funding. Defs.’ Cross-Mot./Opp’n at 8-9. Accordingly, Defendants’ failure to
18
actually pay the Tribe the specified funding is not a breach of the parties’ Contract. Id. at 8.
Moreover, Defendants contend that footnote 25 should be read as a non-binding statement of
intention that Defendants would support or aid the Tribe’s own efforts to obtain funding—i.e.,
that Defendants agreed only that, if the Tribe made its own efforts to obtain the funding for the
juvenile correction center, Defendants would assist the Tribe in doing so. Id. at 8-9. Defendants
argue that because Plaintiff has provided no evidence that it made any effort to obtain CY 2005
funding, Defendants therefore did not breach their agreement to assist the Tribe. Id. at 9.
Finally, Defendants argue that Plaintiff has not demonstrated that it incurred any injury or
damages as a result of Defendants’ action (or inaction, as the case may be). Defs.’ Cross-
Mot./Opp’n at 14-15; Defs.’ Reply at 7-8. According to Defendants, because the Contract does
not contain an actual promise to pay the specified funds, Plaintiff could not have possessed any
reasonable expectation of receiving any particular amount, or indeed, any amount at all. Defs.’
Cross-Mot./Opp’n at 14-15; Defs.’ Reply at 7-8.
The parties’ arguments thus raise three issues: (1) what is the proper interpretation of the
parties’ Contract—specifically line item no. 177 and the accompanying footnote no. 25; (2) did
Defendants breach the parties’ Contract; and (3) has Plaintiff produced evidence sufficient to
show that it suffered a loss or injury as a result of any alleged breach.
i. Interpretation of the parties’ Contract
“Contract interpretation is a question of law and thus presents an appropriate question for
resolution on summary judgment.” Hallwood Plaza, Inc. v. United States, 84 Fed. Cl. 804, 811
(Fed. Cl. 2008). “Under general contract law, the plain and unambiguous meaning of an
instrument is controlling, and the Court determines the intention of the parties from the language
19
used by the parties to express their agreement.” Washington Metro. Area Transit Auth. v.
Mergentime Corp., 626 F.2d 959, 960-61 (D.C. Cir. 1980) (internal citations omitted). “In
performing this task, the Court should construe the contract as a whole so as to give meaning to
all of the express terms.” Id. Where the contract is unambiguous, as evidenced by the plain
language of the contract, the court’s inquiry is at an end, and the plain language of the contract
controls. Hallwood Plaza, 84 Fed. Cl. at 811. “A contract is unambiguous when there is only
one reasonable interpretation.” Id.
Here, the language in footnote 25 explicitly states that “[t]he BIA agrees to assist the
Tribe in obtaining $1,218,482 for operations funding for the Tribes [sic] juvenile correction
facility in CY 2005. . . .” Pl.’s Mot., Ex. B (Agreement and 2005 Reprogramming Request), at
14. This is the only language in the 2005 Reprogramming Request that directly addresses CY
2005 funding for the juvenile correction facility. See generally id. The Court finds that this
language is plain and unambiguous, and provides only that the Government shall “assist the
Tribe in obtaining” the specified funds in CY 2005. Accordingly, the Court concludes that
Defendants had a duty to assist under the plain language of the parties’ Contract.
Plaintiff’s argument that this language should be read to impose an actual duty to pay,
rather than a duty to assist, is without merit. First, although Plaintiff is correct that the Contract
must be liberally construed for the benefit of the tribe, see Pl.’s Mot. at 12 (citing 25 U.S.C. §
450l(c)), that does not mean that the Contract’s plain language may be ignored. See Mergentime
Corp., 626 F.2d at 960-61 (“the plain and unambiguous meaning of an instrument is
controlling”).
Second, the Court does not agree with Plaintiff that the text of line item no. 177 should be
20
read as a promise by Defendants to pay the Tribe the specified funding at issue, regardless of the
qualifying language in footnote 25. See Pl.’s Mot. at 12-14; Pl.’s Opp’n/Reply at 2-5. Upon
review of the parties’ Contract, it is evident that the 2005 Reprogramming Request is intended to
generally set forth the funds the United States shall provide to the Tribe for the provision of the
agreed services. See Pl.’s Mot., Ex. A (Compact), Art. II § 3 (“Subject only to the appropriation
of funds by the Congress of the United States . . . , the Secretary or an authorized representative
shall provide to the Tribe the total amount specified in the Annual Agreement incorporated by
reference. . . .”). It is, however, equally clear from the 2005 Reprogramming Request, taken as a
whole, that the dollar figures set forth in the line items therein do not necessarily constitute the
final agreed-upon amount that Defendants shall provide, as Plaintiff would urge. Rather, a
substantial number of the funding line items in the 2005 Reprogramming Request are
accompanied by footnotes, which in many cases appear to qualify the total dollar amount noted
in the line item. See Pl.’s Mot., Ex. B (2005 Reprogramming Request).
For example, line item no. 102, entitled “TPA General Increase,” provides in the text of
the line item for a total of $227,030 in funding, but the accompanying footnote, no. 14, explains
that “[t]his amount is to be determined by Congressional appropriation.” See id. As an another
example, line item no. 116 provides in the text of the line item for a total of $244,000 in funding
for “Tribal Management and Development,” but the accompanying footnote, no. 18, qualifies
that statement with “[t]his line item includes an estimate of $70,000” and that the “actual amount
. . . will be based on an existing, competitive process. . . .” See id. Similarly, line item no. 121
provides in the text of the line item for a total of $495,000 in funding for “Forestry” programs,
but footnote no. 20 provides that “[t]his amount is an estimate” and that “[t]he actual amount will
21
be based on specific forestry development projects, forest acres, and need for the Forest
Development portion, and on the approved scheduled project amount for Forest Inventories/Plans
portion in CY 2005.” See id. The examples go on, but the point is clear. Contrary to Plaintiff’s
arguments, the text of the line items—specifically, the final dollar amount listed in each line
item—does not, in all cases, represent the final determinative amount of funding to be provided
to the Tribe. Rather, consideration of the 2005 Reprogramming Request as a whole demonstrates
that the line items and the dollar amounts provided therein may be qualified by the text of the
relevant footnote, as is the case with the language at issue here. Accordingly, the $4,582,036
figure amount in line item no. 177 cannot be read in isolation from footnote 25 as actually
obligating the Government to pay the Tribe the specified funding($1,218,482) for the juvenile
correction center, when the specific language in the footnote plainly provides that the
Government shall only “assist the Tribe in obtaining” the funds.6 The Court therefore finds that
the plain and unambiguous language of the Contract imposes upon Defendants a duty to assist
the Tribe in obtaining the specified funding.
In so finding, the Court also rejects Defendants’ assertion that footnote 25 is “a mere
statement of intention” and is “not binding.” Defs.’ Cross-Mot./Opp’n at 9 (citing Cutler-
Hammer, Inc. v. United States, 194 Ct. Cl. 788, 794 (1971)). Defendants’ reliance on Cutler-
Hammer is misplaced. At issue in that case was the question of whether a regulation
promulgated by the Department of Treasury was contractual in nature such that it constituted a
6
Plaintiff’s reliance on Segar v. Mukasey, 508 F.3d 16, 24 (D.C. Cir. 2007) is misplaced.
Pl.’s Mot. at 13; Pl.’s Opp’n/Reply at 3. In Segar, the D.C. Circuit held that a footnote should
not be read to effectively delete seven substantive pages of text. 508 F.3d at 24. Clearly, that is
not the case at hand.
22
binding offer by the United States to sell silver at a stated price pay to anyone who complied with
the terms of the regulation. Cutler-Hammer, 441 F.2d at 1180. The court answered in the
negative, finding that the regulation did not bind the Government and observing that “the
obligation of the Government, if it is to be held liable, must be stated in the form of an
undertaking, not as a mere prediction or statement of opinion or intention.” Id. at 1182. As the
court could “find nothing in the language of the Regulation . . . which could be construed as
contractual in nature,” the court held that the government was not bound by the terms of the
regulation. Id. By contrast, the instant case involves—not a regulation—but a binding valid
contract entered into between the United States and the Tribe pursuant to the ISDEAA, a point
that Defendants do not dispute. In addition, the language at issue here explicitly provides that
BIA “agrees to assist the Tribe to obtain funding”—unlike the regulation at issue in Cutler-
Hammer, the Court finds nothing in this language to indicate that either party viewed this
commitment merely as a “prediction” or “statement of opinion.” The Court therefore rejects
Defendants’ argument that the 2005 Reprogramming Request should be viewed only as “a mere
statement of intention.”
In addition, the Court cannot agree with Defendants that BIA’s agreement “to assist” was
not implicated unless and until the Tribe initiated its own independent effort to obtain funding.
See Defs.’ Cross-Mot./Opp’n at 9; Defs.’ Reply at 4. Defendants argue that the Court should
interpret the word “assist” to mean “to give support or aid, indicating a secondary role of
assistance in cooperation with the primary actor.” Defs.’ Reply at 4. According to Defendants,
because the Tribe does not claim to have made any independent effort to obtain the funding at
issue, Defendants’ obligation to assist was never triggered. See id. Such an argument is
23
disingenuous, given that self-determination contracts are intended to transfer control and
resources (i.e., funding) for federally funded services and programs from the federal government
to the Tribe. See Ramah Navajo, 112 F.3d at 1456; see also Samish Indian Nation, 419 F.3d at
1367 (ISDEAA is intended to “remov[e] the financial burden incurred by tribes and tribal
organizations when implementing federal programs under self-determination contracts.”). In
addition, as Plaintiff notes, “[c]onditions precedent are disfavored and will not be read into a
contract unless required by plain, unambiguous language.” RT Computer Graphics v. United
States, 44 Fed. Cl. 747, 756 (Fed. Cl. 1999) (quoting Effects Assoc., Inc. v. Cohen, 908 F.2d 555,
559 n.7 (9th Cir. 1990)); see also Marsa v. Metrobank Fin. Group, 825 F. Supp 658, 664 (D.N.J.
1993) (collecting cases). In this case, nothing in the Contract indicates that the Tribe was
required to make any further efforts to obtain the funding. Rather, given the purpose of the
Contract—i.e., to transfer the control of federal programs to the Tribe and to ensure that the
Tribe receives sufficient federal funding—the only reasonable interpretation of BIA’s agreement
to “assist” the Tribe to obtain funding is that BIA would itself make efforts to obtain federal
funding on behalf of the Tribe for its juvenile correction center.
ii. Breach
Having determined that Defendants had an affirmative duty to assist, the Court now turns
to the question of whether Defendants breached that duty. The Court need not dwell long on this
question as BIA officials conceded at deposition that BIA did not provide any assistance to the
Tribe in obtaining program operations funding for the juvenile correction facility in CY 2005.
Specifically, the head of BIA’s Office of Justice Services, Christopher Chaney, testified that BIA
did not provide any assistance to the Tribe in obtaining staffing and program operations funding
24
for the facility in CY 2005. Id. ¶ 18. In addition, Patrick Ragsdale, the Director of BIA, testified
that he was not aware of any efforts by BIA to obtain staffing and program operations funding for
the facility in CY 2005 Id. ¶ 19. Finally, Kenneth Feinfeld, the Acting Director of the OSG and
the person who executed the 2005 Reprogramming Request on behalf of the United States,
testified that he personally did not make any efforts to obtain staffing and program operations
funding for the juvenile correction facility for CY 2005. Id. ¶ 20. Defendants do not dispute
this, see Defs.’ Resp. ¶¶ 18-20, nor have they offered any evidence to the contrary, see generally
Defs.’ Stmt. Accordingly, although the Court would normally need to first determine the specific
contours of Defendants’ duty to assist before determining whether the duty was breached, given
Defendants’ concession that BIA made no effort to assist, it is clear that Defendants breached the
parties’ Contract under any reasonable definition of Defendants’ duty to assist.
iii. Injury or Loss
The Court next turns to whether Plaintiff has adequately demonstrated that it suffered a
loss or injury (here, whether it suffered monetary damages) as a result of Defendants’ breach.
Defendants argue that Plaintiff cannot establish that it suffered any injury or loss as a result of
Defendants’ failure to assist the Tribe to obtain the CY 2005 funds. Defs.’ Cross-Mot./Opp’n at
14-15. Plaintiff responds that the Tribe reasonably anticipated that it would have received
$1,218,482 in CY 2005 funding for the juvenile correction center if Defendants had not breached
the Contract, and that it is therefore entitled to recover damages based on its expectation interest.
Pl.’s Mot. at 14.
As an initial matter, the Court notes that the parties have, to some extent, conflated the
threshold question of whether Plaintiff has proven it suffered a injury or loss—i.e., established
25
liability—with the subsequent question of the type and amount of damages Plaintiff should be
awarded for any such loss. Nonetheless, the Court understands that the parties’ principal dispute
at this stage is whether Plaintiff has shown it suffered a loss or injury as a result of the breach.
As stated above, to recover for breach of contract, a party must establish, inter alia, that they
suffered a loss caused by the breach. Willems Indust., 295 F.2d at 831 (plaintiff “bears the
burden of proving the fact of loss with certainty” in proceeding with a breach of contract claim);
see also Roseburg Lumber, 978 F.2d at 667-68 (plaintiff must prove threshold issue of whether
damages have actually been sustained). That is, “the complaining party must demonstrate that
the breach caused him injury.” New Valley Corp., 67 Fed. Cl. at 284. Because the Court finds
that there are material issues of disputed fact as to whether Plaintiff has shown that it suffered an
injury as a result of Defendants’ breach, the Court concludes that summary judgment is not
appropriate.
Plaintiff argues that the Department had sufficient CY 2005 funding, such that the
funding in question would have been available and provided to the Tribe if Defendants had made
any effort to assist the Tribe as promised. See Pl.’s Opp’n/Reply at 9. Specifically, Plaintiff
provides evidence that the Department had experienced “significant funding increases for Indian
country correction facilities for staffing and operation” in FY 2005, Pl.’s Mot., Ex. E (Chaney
Dep.) at 47:4-15, 48:12-17, and that Congress had appropriated $180,063,000 for BIA’s Public
Safety and Justice law enforcement and correction facilities, an increase of $7,568,000 over what
was appropriated for the same purposes in FY 2004, see Pl.’s Stmt. ¶ 33. Defendants counter
that Plaintiff’s alleged injury is too speculative and hypothetical, and that the Department in fact
26
did not have sufficient funding.7 See Defs.’ Cross-Mot./Opp’n at 12-15; Defs.’ Reply at 7-9.
The Court understands the key dispute to be one of causation—in other words, whether Plaintiff
would have received the specified amount of CY 2005 funding but for Defendants’ breach.
Although the question is a close one, the Court finds that Plaintiff has presented sufficient
evidence to create a disputed issue of material fact as to whether Defendants’ breach caused the
Tribe an injury, here, loss of CY 2005 funding.
2. Plaintiff’s Allegations that Defendants Failed to Request Funding in the
Next President’s Budget
Plaintiff next argues that Defendants failed to request $1,218,482 for operations funding
for the Tribe’s juvenile correction facility in FY 2006, as agreed to in the parties’ contract.
Footnote 25 in the 2005 Reprogramming Request states that “[t]he BIA agrees to . . . request this
amount [$1,218,482] in the next Presidents [sic] budget.” Pl.’s Mot., Ex. B (Agreement and
2005 Reprogramming Request), at 14. As mentioned above, although there is some debate as to
whether the “next President’s budget” refers to FY 2006 or FY 2007, see supra 7, it is
undisputed that Defendants did not submit a request for $1,218,482 for the Tribe’s juvenile
correction facility in the President’s budget for either FY 2006 or FY 2007. Pl.’s Stmt. ¶¶ 22-23.
Accordingly, Plaintiff argues that Defendants breached the parties’ Contract, and Plaintiff is
entitled to recover $1,218,482 in damages. Pl.’s Mot. at 14-15.
7
Although unclear from the briefing, the Court understands Defendants’ argument that the
Department lacked sufficient funding, such that payment to the Tribe would have resulted in
decreasing monies directed to other tribes, as addressing the issue of causation. See Defs.’
Cross-Mot./Opp’n at 12-14; Defs.’ Reply at 6-7. That is, that Plaintiff would not have received
funding even if the Department had made efforts to assist the Tribe because funding was
insufficient, such that providing Plaintiff with the specified CY 2005 funding would have
required the Department to decrease funding for other tribes.
27
Defendants respond with two principal arguments: (1) that the Department does not
possess the authority to insert a request into the President’s budget and the agreement is therefore
unenforceable; and (2) the Tribe has not demonstrated any damages or injury. See Defs.’ Cross-
Mot./Opp’n at 10-15. The Court shall examine each argument in turn.
i. Defendants’ authority to enter into an agreement to request funding
in the President’s budget
Defendants argue that the agreement at issue is unenforceable because “[n]o one at BIA
or at the OSG possessed the authority to insert a budget request into the President’s budget.”
Defs.’ Mot. at 11. According to Defendants, “only the President possesses the authority to insert
a budget request into the President’s budget,” and therefore any promise by Defendants to insert
a budget request into the next President’s budget is unenforceable. Id. The Court, however, does
not agree.
Defendants are correct that contracts entered into by government personnel who lack
authority to bind the Government are unenforceable. See City of El Centro v. United States, 922
F.2d 816, 820-21 (Fed. Cir. 1990) (finding that a border agent did not have authority to bind
United States in contract for medical costs). Defendants, however, appear to contend that a
government employee must have express authority as to each term of a contract in order to
contractually bind the Government, see Defs.’ Cross-Mot./Opp’n at 10-11, thus ignoring that
“[a]ctual authority can be either express or implied in fact.” First Federal Lincoln Bank v.
United States, 54 Fed. Cl. 446, 452 (Ct. Cl. 2002). As concerns the latter, actual authority is
implied “when such authority is an integral part of the duties assigned to a [g]overnment
employee.” Id. (internal quotation marks omitted).
28
Turning to the agreement at issue, the Court first notes that Defendants have
mischaracterized the nature of the agreement at issue. As shown by the plain language of the
parties’ Contract, BIA did not agree to “insert” a budget request into the President’s budget, but
rather only to “request” this amount in the next President’s budget. See Pl.’s Mot., Ex. B
(Agreement and 2005 Reprogramming Request), at 14 (“The BIA agrees . . . to request this
amount in the next Presidents [sic] budget.”). Even Defendants acknowledge that the Secretary
has authority to “prepare and submit to the President each appropriation request for the agency.”
See Defs.’ Cross-Mot./Opp’n at 11 (citing 31 U.S.C. § 1108(a)). Admittedly, the President
and/or Congress may reject or otherwise modify the request, but it is not disputed that the
Secretary is authorized, on behalf of the Department, to submit requests for consideration in the
President’s budget.
Second, the Court is persuaded that the Director of OSG, who executed the 2005
Reprogramming Request on behalf of the United States, had authority to promise that the
Department would request the specified funding in the next President’s budget. The Director is
head of the OSG, which is the office within the Department responsible for administering the
Secretary’s tribal self-governance program, including BIA programs. See Pl.’s Mot., Ex. B (2005
Reprogramming Request); Pl.’s Stmt. ¶ 3. The Court is hard pressed to find that the Director
lacked the authority to enter into this agreement—i.e., an agreement governing funding for
programs transferred to the Tribe pursuant to a self-determination agreement—as doing so is
quite clearly “an integral part of the duties assigned” to the Director of the OSG. See First
Federal Lincoln Bank, 54 Fed. Cl. at 452. Indeed, as Plaintiff points out, there is no question
that the Director could have simply committed the Department to pay the Tribe $1,218,482 for
29
operating the juvenile correction facility in FY 2006. Defendants’ argument that the Director
could not make the lesser commitment on behalf of the Department to merely request this
amount be submitted in the budget is thus without merit.
Finally, the Court is persuaded by the Federal Circuit’s reasoning in LDG Timber
Enterprises, Inc. v. Glickman, 114 F.3d 1140 (Fed. Cir. 1997). In that case, the Federal Circuit
rejected the government’s argument that the contracting officer exceeded his authority in
agreeing to certain terms in a timber contract, stating that:
When the contracting officer administers a contract with which the officer is charged,
the promises and representations made by the officer, when within the scope of the
subject matter of the contract can not [sic] be avoided by simply disclaiming the
contracting officer’s authority when the contract reaches litigation.
Id. at 1143. Accordingly, when, as here, the actions of the government official at issue are
“within the authority that pertains to the subject matter of the contract, and no statute or
regulation limits that authority,” the government should bear the burden of coming forward with
specific evidence that the contracting officer lacked authority for the actions at issue. Id.Having determined that Defendants have failed to do so, the Court concludes that BIA’s
promise to request the specified funding in the next President’s budget is enforceable.
Because Defendants concede that they did not, in fact, submit a request for $1,218,482
for the Tribe’s juvenile facility in the President’s budget for either FY 2006 or FY 2007, Pl.’s
Stmt. ¶¶ 22-23, it is clear that Defendants breached the parties’ agreement to do so. The Court
therefore turns directly to the issue of damages.
ii. Injury or Loss
Defendants’ also argue that Plaintiff did not suffer any injury or loss as a result of
30
Defendants’ breach. Plaintiff responds that the Tribe reasonably anticipated that it would have
received $1,218,482 in FY 2006 funding for the juvenile correction center if Defendants had not
breached the Contract, and it is therefore entitled to recover damages based on its expectation
interest. Pl.’s Mot. at 14-15. Defendants counter that because BIA agreed only to request—i.e.,
not to pay—the specified amount, and because the President or Congress may have modified or
rejected the request, Plaintiff could not have reasonably expected to receive the FY 2006
funding. See Defs.’ Cross-Mot./Opp’n at 11, 14-15.
Once again, the parties have conflated the threshold question of whether Plaintiff has
proven it suffered a injury or loss—i.e., established liability—with the question of the type and
amount of damages Plaintiff should be awarded for any such loss. The Court, however,
understands that the parties’ principal dispute to focus on the question of whether Plaintiff has
shown it suffered a loss or injury as a result of the breach. As previously explained, to recover
for breach of contract, a party must establish, inter alia, that they suffered a loss caused by the
breach. Willems Indust., 295 F.2d at 831; see also Roseburg Lumber. Because the Court finds
that there are material issues of disputed fact as to whether Plaintiff has shown that it suffered an
injury as a result of Defendants’ breach, the Court concludes that summary judgment is not
appropriate.
Plaintiff contends that Congress would have appropriated the specified funding if
requested because Congress not only appropriated all requested funds for BIA Public Safety and
Justice law enforcement programs in FY 2006 and FY 2007, but in fact appropriated additional
funds over and above the amounts requested. For example, the President’s budget for FY 2006
requested $192,265,000 for BIA Public Safety and Justice law enforcement programs, including
31
funding for the operation of correction services, programs, and facilities. Pl.’s Stmt.¶ 34.
Congress subsequently increased this funding request by an additional $1.1 million,
appropriating a total of $193,377,000. Id. ¶ 35. Similarly, as to FY 2007, the Department
requested a lump sum of $201,620,000 in the President’s budget for BIA Public Safety and
Justice law enforcement programs, including funding for operation of correction services,
programs, and facilities. Id. ¶ 36. Congress again increased the funding over and above the
requested amount, appropriating a total of $204,454,00 for FY 2007, an increase of $11,077,00
over what was appropriated for the same purposes in FY 2006. Id. ¶ 37. Defendants contend
that Plaintiff’s alleged expectancy damages are too speculative and hypothetical. See Defs.’
Cross-Mot./Opp’n at 14-15; Defs.’ Reply at 7-9. Accordingly, as presented by the parties, the
key issue, once again, is one of causation—i.e., whether Plaintiff would have received the
specified amount of funding but for Defendants’ breach. Although the question remains a close
one, the Court finds that Plaintiff has presented sufficient evidence to create a disputed issue of
material fact as to whether the Defendants’ breach caused the Tribe injury, that is, a loss of FY
2006 or FY 2007 funding. Summary judgment on this issue is therefore not appropriate.
Accordingly, the Court shall deny both Plaintiff’s Motion for Summary Judgment and
Defendants’ Motion for Summary Judgment as to Count I of Plaintiff’s Complaint.
B. Count II of Plaintiff’s Complaint Alleging that Defendants Failed to Notify the
Tribe of the Availability of End-of-Year Funds
Plaintiff next alleges that Defendants failed to notify the Tribe of the availability of year-
end funds as promised in the parties’ Contract. Section 17 of the Agreement and the Fourth
Amendment both provide:
32
Additional Funds - If the Midwest Region Office of the BIA receives notice of the
availability of any additional funding in any fiscal year for any purpose, including
any unspent funds, that the Tribe is eligible to apply for or receive, then it must
notify the Tribe as soon as possible about such funds so that the Tribe may access
or apply for those funds. The Midwest Region Office commits to keeping the Tribe
informed of the existence of funding immediately upon learning of its existence.
Pl.’s Mot, Ex. B (Agreement) at 4 (emphasis in original); id., Ex. L (Fourth Amendment) at 4
(emphasis in original). In September of 2006, the BIA Midwest Regional Office received and
distributed FY 2006 year-end funds to five of the thirty-five Indian tribes and tribal
organizations within the BIA Midwest Region, but did not inform the Tribe about the
availability of these funds until weeks after they were distributed. Pl.’s Stmt. ¶¶ 43-45. Plaintiff
therefore contends that Defendants breached the Contract and that Plaintiff is entitled to partial
summary judgment as to liability with respect to the breach, reserving determination as to the
amount of damages. Pl.’s Mot. at 15.
As explained above, however, proof of injury or loss (here, monetary damages, as
alleged by Plaintiff) is an element of Plaintiff’s breach of contract claim, and, in order to survive
summary judgment, Plaintiff must produce sufficient evidence from which a trier of fact could
conclude that Plaintiff suffered a loss as a result of Defendants’ breach. See Pryor, 85 Fed. Cl.
at 104 (damages are an element of a breach of contract claim); New Valley Corp., 67 Fed. Cl. at
284 (“the complaining party must demonstrate that the breach caused him injury”) (quoting
Record Club of Am., 890 F.2d at 1275).
In this instance, Plaintiff has not proffered any evidence that it suffered a loss as a result
of Defendants’ failure to notify it of the year-end funds. To the contrary, the unrebutted
evidence in the record shows that, although the Tribe was technically eligible to receive the
33
year-end funds, the Tribe would not have, as a practical matter, received any year-end funds
because it did not have a contract under Title I of Public Law 93-638. As Defendants explained,
in light of time constraints attached to the funding, the BIA Central Office had decided to
distribute the year-end funds only to tribes having contracts under Title I of Public Law 93-638
(codified at 25 U.S.C. § 450f), and not to tribes—like Plaintiff—having contracts under Title IV
of Public Law 93-638 (codified at 25 U.S.C. § 458cc). Pl.’s Stmt.¶ 46. As BIA Director
Ragsdale explained at deposition:
Self-governance tribes [such as Plaintiff] were eligible for funds, but my
understanding is [] that the money had to be obligated within a very short period of
time and the Bureau’s mechanism through the Office of Self-Governance could not
mechanically do that. So the self-governance tribes were excluded from that—from
that potential allocation.
Id. ¶ 48 (quoting Pl.’s Mot., Ex. K (Ragsdale Dep.) at 64:1-7)). Plaintiff offers no evidence to
dispute this contention or to otherwise suggest that it would have received any portion of the
year-end funds even if Defendants had alerted the Tribe to the funding. Nor does Plaintiff offer
any evidence as to what actions the Tribe would have taken, even if timely notified, to apply for
the funds—funds which the BIA Central Office had already decided Plaintiff would not receive.
In order to survive summary judgment on its breach of contract claim, the Tribe must
proffer some evidence that it suffered a loss caused by Defendants’ breach. See Malissa, 18 Cl.
Ct. at 674 (“This court has long held that in contract cases, where plaintiff has alleged a breach
of contract, the plaintiff must shoulder the burden of establishing the fundamental facts of
liability, causation, and resultant injury.”) (internal quotation marks and citations omitted); see
also Willems Indust. 295 F.2d at 831 (plaintiff “bears the burden of proving the fact of loss with
certainty” in proceeding with its breach of contract claim for money damages). Plaintiff,
34
however, has failed to do so. Accordingly, as there are no material facts in dispute and as
Plaintiff has not proffered evidence from which a trier of fact could conclude that Plaintiff has
met all the elements of its breach of contract claim, the Court shall deny Plaintiff’s motion for
partial summary judgment and shall grant Defendant’s motion for summary judgment as to
Count II of Plaintiff’s Complaint.8
C. Count III of Plaintiff’s Complaint Alleging that Defendants Failed to Timely
Provide a Pay Cost Report as Contractually Required
Plaintiff next alleges that Defendants failed to provide the Tribe with a complete and
adequate pay cost report as required by the parties’ Contract. As explained above, footnote 15
to line item no. 103 in the 2006 Reprogramming Request provides inter alia:
[T]he BIA and OSG agree to provide to the Tribe by April 1, 2006, a detailed Pay
Cost analysis for the years 2003-2006, showing what the Tribe was eligible to
receive each year based upon Pay Cost data the Tribe provided, the actual amount
received, and the shortfall or unfunded amount. This analysis will include Law
Enforcement. The analysis will separately show the total amounts received each
year for Self-Governance tribes, contracting tribes, and BIA programs, as well as the
total amounts the BIA was eligible to receive for these programs based upon data
it compiled. The above information has been requested by the Tribe to verify
whether Red Lake, other Self Governance tribes, contracting tribes, and BIA
programs were treated the same way with regard to the distribution of Pay Costs for
the years 2003-2006.
Pl.’s Stmt. ¶ 49 (quoting Pl.’s Mot., Ex. L (2006 Reprogramming Request) at 3 n. 15).
It is undisputed that BIA and OSG failed to provide a detailed pay cost analysis to the
Tribe by April 1, 2006. Id. ¶ 50. However, as discussed above, Defendants have now provided
8
Because the Court determines that Plaintiff has not proffered evidence that it suffered a
loss as a result of Defendants’ failure to notify the Tribe of the year-end funds, the parties’
dispute as to whether those funds totaled $200,000 or only $85,000 is immaterial. See Pl.’s Stmt.
¶ 43; Defs.’ Resp. ¶ 43.
35
Plaintiff with a pay cost report, attaching the Report to Defendants’ Cross-Motion and
Opposition in this case. See Defs.’ Cross-Mot./Opp’n, Ex. A (Pay Cost Report). Plaintiff
nonetheless responds that Defendants remain in breach because the pay cost report ultimately
provided by Defendants is incomplete and fails to satisfy the Department’s obligation under the
parties’ Contract. Pl.’s Opp’n/Reply at 12. Specifically, Plaintiff asserts that the analysis omits
(1) the total pay cost amounts that BIA received each year for its programs and (2) the amounts
BIA was eligible to receive. Id. Notably, Defendants do not dispute the inadequacy of the pay
cost report provided to Plaintiff, but rather contend only that the Court does not have
jurisdiction to award specific performance of a government contract. Defs.’ Reply at 10.
Ultimately, however, the Court finds that Defendants have not directed the Court’s attention to
any legal authority supporting their claim that the ISDEAA does not provide this Court with
jurisdiction to order specific performance of a contract entered into pursuant to that statute, and,
therefore, based on the arguments asserted in the parties’ briefing, the Court concludes that it
may compel Defendants to provide Plaintiff with an adequate pay cost report.9
As an initial matter, neither party has directed the Court’s attention to any decision
directly addressing whether the ISDEAA provides a district court with jurisdiction over a
plaintiff’s claim for specific performance of a self-governance contract nor is the Court aware of
9
The Court emphasizes that it was largely unaided by Defendants’ briefing in reaching
this conclusion. Defendants provided a bare page of discussion addressing this novel question of
statutory interpretation, citing only two cases for legal support. See Defs.’ Cross-Mot./Opp’n at
16-17. Moreover, one of those citations is incorrect as, contrary to Defendants’ representations,
the opinion in Designer Direct, Inc. v. DeForest Dev. Auth., 313 F.3d 1036 (7th Cir. 2002) does
not mention the term “specific performance” nor contain the quotation referenced in Defendants’
briefing. Rather, it appears that the quotation at issue is correctly attributed to the decision in Lee
v. Blumenthal, 588 F.2d 1281, 1282 (9th Cir. 1979).
36
any such opinion. The question now before the Court thus appears to be one of first impression.
“As in all statutory construction cases, we begin with the language of the statute.” Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002). “The first step ‘is to determine whether the
language at issue has a plain and unambiguous meaning with regard to the particular dispute in
the case.’” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). “The inquiry
ceases ‘if the statutory language is unambiguous and ‘the statutory scheme is coherent and
consistent.’” Id. (quoting Robinson, 519 U.S. at 340). In addition, the statute’s “legislative
history can assist the court in identifying legislative intent where the statute is unclear, and, on
rare occasions, it may suffice to overcome a result of the plain language of the statute that is
‘demonstrably at odds with the intentions of its drafters.’” Bullcreek v. Nuclear Regulatory
Comm’n, 359 F.3d 536, 541-42 (D.C. Cir. 2004) (citing Blum v. Stenson, 465 U.S. 886, 896
(1984) and quoting United States v. Ron Pair Enterp., Inc., 489 U.S. 235, 242 (1989)).
The Court therefore turns first to the plain language of the relevant section of the
ISDEAA, which provides:
The United States district courts shall have original jurisdiction over any civil action
or claim against the appropriate Secretary arising under this [Act] and, subject to the
provisions of subsection (d) of this section and concurrent with the United States
Court of Claims, over any civil action or claim against the Secretary for money
damages arising under contracts authorized by this [Act]. In an action brought under
this paragraph, the district courts may order appropriate relief including money
damages, injunctive relief against any action by an officer of the United States or
any agency thereof contrary to this 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).
25 U.S.C. § 450m-1(a) (emphasis added). Thus, the plain statutory language provides that this
37
Court has “original jurisdiction over any civil action or claim against the appropriate Secretary
arising under” the ISDEAA and this [Act] and “may order appropriate relief including . . .
injunctive relief against any action by an officer of the United States or any agency thereof . . . .,
or mandamus to compel an officer or employee of the United States, or any agency thereof, to
perform a duty provided under this [Act] or regulations promulgated hereunder.” Id. Moreover,
as Plaintiff emphasizes, the legislative history of section 450m-1 states explicitly that the
ISDEAA, as amended, “affords self-determination contractors the opportunity to secure
injunctive relief . . . for violations of the Self-Determination Act (or the terms of contracts under
the Act).” S. Rep. No. 100-274 at 34 (1988), reprinted at 1988 U.S.C.C.A.N. 2620, 2653.
Significantly, Defendants fail to make any specific argument, with citations to relevant
case law or legal authority, that the plain language of the ISDEAA should be read to the
contrary. Rather, Defendants make only a conclusory and unsupported assertion that “the
express language of the statute . . . does not provide the Court with authority to grant the
specific performance Red Lake requests.” See Defs.’ Reply at 11. Such a statement, made
without further explanation, is puzzling to say the least, given the language quoted above.
Defendants only other argument in support of their position is the assertion that, as a general
matter, courts do not possess jurisdiction to award specific performance of a contract against the
government, as such an action is an action against the sovereign and is not maintainable unless
consented to. See Defs.’ Cross-Mot./Opp’n at 16-17; Defs.’ Reply at 10-11. It would appear,
however, from the plain language of the Act, that the government has, in fact, consented to
actions for specific performance for breach of self-governance contracts under the
ISDEAA—and Defendants offer no reason why the general principle of sovereign immunity
38
should trump the specific, plain language of the statute at hand. Moreover, even if the Court
were to give Defendants the benefit of the doubt and find that the statutory language is
ambiguous, Defendants do not reconcile their position with the well-established cannon of
statutory interpretation 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); see also Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247
(1985). Accordingly, as both the plain language of the ISDEAA and its legislative history favor
a finding that this Court has jurisdiction to order specific performance of the parties’ Contract
entered into pursuant to the ISDEAA, and as Defendants have not provided any persuasive
argument to the contrary, the Court concludes that it has jurisdiction to award Plaintiff specific
performance of its government contract.
Finally, as Defendants do not contest that the pay cost report attached to their Cross-
Motion/Opposition is inadequate, the Court shall deny Defendants’ motion for summary
judgment and shall grant Plaintiff’s motion for summary judgment as to Count III of Plaintiff’s
Complaint. Defendants shall therefore be required, by no later than April 30, 2009, to provide
Plaintiff with a pay cost analysis for the years 2003-2006 that fully complies with the terms of
the parties’ Contract and that shows: (1) “what the Tribe was eligible to receive each year based
upon Pay Cost data the Tribe provided, the actual amount received, and the shortfall or
unfunded amount;” and (2) “the total amounts received each year for Self-Governance tribes,
contracting tribes, and BIA programs, as well as the total amounts the BIA was eligible to
receive for these programs based upon data it compiled.” Pl.’s Stmt. ¶ 49 (quoting Pl.’s Mot.,
Ex. L (2006 Reprogramming Request) at 3 n. 15).
39
D. Count IV of Plaintiff’s Complaint Alleging that Defendants Did Not Treat Tribe
Employees the Same as Other Employees for Purposes of Pay Cost Adjustments
in FY 2006
Count IV of Plaintiff’s Complaint asserts that, although all of BIA’s fixed costs,
including pay costs, were funded in FY 2006, BIA did not fully fund the Tribe’s pay costs and
therefore breached its promise in the parties’ Contract that:
The BIA will make every effort to treat Red Lake Tribal employees the same as
all other Tribal and Federal employees for purposes of pay cost adjustments in
FY 2006.
Pl.’s Mot., Ex. L (2006 Reprogramming Request) at 3 n. 15.
Although Plaintiff has not moved for summary judgment on Count IV, Defendants
appear to claim that summary judgment in their favor is appropriate on this claim. See Defs.’
Cross-Mot./Opp’n at 17. The Court notes only that it “appears” Defendants have so moved
because, despite Defendants’ assertion that summary judgment on Count IV is appropriate,
Defendants have failed to include any factual or legal support for that conclusion. Indeed,
Defendants’ entire discussion of this issue is relegated to a single sentence at the close of
Defendants’ briefing, providing—without citation to any legal authority or reference to the
factual matter in this case—that: “any claim [Plaintiff] may raise concerning payment of pay
costs is not contractual, but if anything, statutory, subject to review pursuant to the
Administrative Procedures Act, under which money damages are not available.” Id. Plaintiff
counters that its claim is appropriately characterized as a breach of contract claim, as the Tribe
alleges that Defendants breached the parties’ agreement that BIA would make every effort to
treat the Tribe’s employees the same as Federal employees vis-a-vis pay cost adjustments. The
Court, however, need not resolve this issue at this juncture, in light of Defendants’ failure to
40
proffer any factual or legal authority in support of its motion for summary judgment as to Count
IV, in violation of local rules. See LCvR 7(a) (“Each motion shall include or be accompanied
by a statement of the specific points of law and authority that support the motion.”).
Accordingly, the Court shall deny Defendants’ motion for summary judgment as to Count IV.10
IV. CONCLUSION
For the reasons set forth above, the Court shall GRANT-IN-PART and DENY-IN-PART
Plaintiff’s Motion for Summary Judgment and shall GRANT-IN-PART and DENY-IN-PART
Defendants’ Cross-Motion for Summary Judgment. Specifically, as to Count I (juvenile
correction facility funding), the Court finds that there are genuine issues of material fact in
dispute that preclude summary judgment, and therefore DENIES the parties’ cross-motions with
respect to Count I. As to Count II (FY 2006 year-end funds), the Court finds in favor of
Defendant, and therefore GRANTS Defendants’ Cross-Motion for Summary Judgment and
DENIES Plaintiff’s Motion for Summary Judgment with respect to Count II. As to Count III
(specific performance for Pay Cost analysis), the Court finds in favor of Plaintiff, and therefore
GRANTS Plaintiff’s Motion for Summary Judgment and DENIES Defendants’ Cross-Motion
for Summary Judgment with respect to Count III. Specifically, the Court hereby requires that,
by no later than April 30, 2009, Defendants shall provide Plaintiff with a pay cost analysis for
10
Although Defendants have not raised the issue, the Court notes that it is not clear from
the record before it that Plaintiff has exhausted its administrative remedies as to Count IV of
Plaintiff’s Complaint. It appears that exhaustion of administrative remedies under the Contract
Disputes Act is a jurisdictional prerequisite to the Court’s consideration of breach of contract
claims pursuant to the ISDEAA. See Tunica-Biloxi Tribe of La. v. United States, 577 F. Supp. 2d
382, 407-08 (D.D.C. 2008). However, given the disposition of Defendants’ motion for summary
judgment as to Count IV and that neither party has raised this issue, the Court need not resolve
the issue sua sponte at this point.
41
the years 2003-2006 that fully complies with the terms of the parties’ Contract, as discussed
above. Finally, the Court DENIES Defendants’ Cross-Motion for Summary Judgment as to
Count IV (underpaid pay costs).
Date: March 19, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
42