Yurok Tribe v. Department of the Interior

United States Court of Appeals
for the Federal Circuit
______________________
YUROK TRIBE,
Appellant
v.
DEPARTMENT OF THE INTERIOR,
Appellee
______________________
2014-1529
______________________
Appeal from the Civilian Board of Contract Appeals in
No. 3519-ISDA, Administrative Judge Stephen M. Dan-
iels.
______________________
Decided: May 8, 2015
______________________
NATHANIEL NESBITT, Hogan Lovells US LLP, Wash-
ington, DC, argued for appellant. Also represented by
CATHERINE EMILY STETSON, LACY RENEE LOGSDON.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellee. Also represented by JOYCE
R. BRANDA, ROBERT E. KIRSCHMAN, JR., DONALD E.
KINNER.
______________________
Before LOURIE, MOORE, and REYNA, Circuit Judges.
2 YUROK TRIBE v. INTERIOR
MOORE, Circuit Judge.
The Yurok Tribe (Tribe) appeals from the Civilian
Board of Contracting Appeals’ (Board) dismissal for
failure to state a claim upon which relief may be granted.
J.A. 2–3. Because the Tribe has not been awarded a
contract, we affirm.
BACKGROUND
In 1975, Congress enacted the Indian Self-
Determination and Education Assistance Act (ISDA), 25
U.S.C. §§ 450–450n. The ISDA encourages Indian tribes
to manage federally-funded programs by authorizing the
government to enter into “self-determination contracts”
with tribes under which a tribe agrees to administer a
program and the government agrees to fund the program.
Arctic Slope Native Ass’n, Ltd. v. Sebelius, 583 F.3d 785,
788 (Fed. Cir. 2009). The statute directs the Secretary of
the Interior, upon a tribe’s request, to enter into a self-
determination contract for programs that the Secretary is
authorized to administer. 25 U.S.C. § 450f(a)(1). When a
tribe wishes to enter into a self-determination contract,
also known as a Title I contract, it submits a proposal to
the Secretary. Id. § 450f(a)(2). The Bureau of Indian
Affairs receives and reviews proposals for the Secretary.
The statute mandates that “the Secretary shall, within
ninety days after receipt of the proposal, approve the
proposal and award the contract unless the Secretary
provides written notification to the applicant” that the
proposal does not meet certain statutory criteria. Id.
Regulations governing the Bureau state that “[a] proposal
that is not declined within 90 days . . . is deemed ap-
proved and the Secretary shall award the contract . . .
within that 90-day period.” 25 C.F.R. § 900.18. In effect,
if the Secretary does not timely respond to a Title I pro-
posal, the proposal is deemed approved and the Secretary
is directed to award a contract based on the terms of the
proposal.
YUROK TRIBE v. INTERIOR 3
This case presents a request for a contract by the
Tribe and a lack of response by the government. On
October 12, 2011, the Tribe wrote a letter to the director
of the Bureau’s Office of Self Governance stating that it
was “submitting this letter of interest for program inclu-
sion and funding under title I of the [ISDA].” J.A. 18.
The letter set forth a request for approximately $5.5M in
annual funding to support the Tribe’s Department of
Public Safety, a request for $2M to fund facilities and
infrastructure for the Department of Public Safety, a
request for approximately $1.5M in annual funding to
support the Tribe’s Tribal Court, and a request for ap-
proximately $7.6M to fund facilities and infrastructure for
the Tribal Court. J.A. 18–19. Attached to the 15-page
letter was a Tribal Resolution authorizing the submission
of a “Title I Compact Request.” J.A. 33.
On October 17, the Office of Self Governance sent an
email to the Tribe stating that it did not “have authority
to manage a Title I agreement.” J.A. 36. The email
copied individuals in the Bureau’s Office of Justice Ser-
vices and stated that those individuals would need to be
the primary contacts for a self-determination contract. Id.
On October 28, the Office of Justice Services asked the
Tribe “to clarify whether the Tribe is seeking a self-
determination contract under Title I of the [IDSA] or,
inclusion of programs and funding in a self-governance
annual funding agreement under Title IV.” J.A. 41. The
Office further stated that if the Tribe was “interested in
submitting a proposal to enter into a self-determination
contract, then [it should] contact the Office.” J.A. 41. On
November 2, the Tribe wrote an email to the Office of
Justice Services, regarding “availability tomorrow to
meet . . . regarding our recent Title 1 request.” J.A. 42.
The Tribe then wrote emails requesting to “follow up
regarding the Yurok Tribe’s Title 1 request” on December
27, 2011, and January 30, 2012. J.A. 46.
4 YUROK TRIBE v. INTERIOR
It is undisputed that the Bureau did not decline the
proposal in the Tribe’s October letter within 90 days of
receiving the letter. On February 1, 2012, the Tribe wrote
a letter to the Office of Justice Services, stating that
because the Bureau did not respond to the proposal set
forth in the Tribe’s October letter, “the contract is deemed
approved and the Tribe seeks to receive the requisite
contract documents.” J.A. 49. On February 8, the Office
of Justice Services wrote a letter to the Tribe stating that
the intent of the Tribe’s October letter was unclear and
did not meet the requirements of a self-determination
contract proposal. J.A. 50–51. On February 15, the Tribe
responded that because the Bureau did not timely decline
the proposal, “[t]he Yurok Tribe demands the Secretary
award forthwith the formal contract as required by sec-
tion 900.18 and according to the terms of the Title I
funding request.” J.A. 55.
A year later, in March 2013, the Office of Justice Ser-
vices received a letter from the Tribe titled “Claim for
performance of Title I justice services contract pursuant
to Contract Disputes Act.” J.A. 65. The letter referenced
the Tribe’s October letter, the Secretary’s failure to re-
spond to the Tribe’s proposal within 90 days, and the
deemed approval of the contract. J.A. 65. In response,
the Office of Justice Services stated that the October
letter was not a complete proposal, and that even if it
were a proposal, the Secretary would have declined it.
J.A. 67–73.
The Tribe then filed the present appeal. J.A. 79. It
alleged that because the Secretary did not decline the
Tribe’s October 12 and February 15 letters, contracts with
the terms set forth in the letters arose by operation of law
and that the Bureau had not performed under these
“deemed contract[s].” Id. Accordingly, the Tribe request-
ed that the Board “[o]rder the Bureau to enter into a Title
I contract as proposed by the Tribe in the letters dated
October 12, 2011, and February 15, 2012.” J.A. 80.
YUROK TRIBE v. INTERIOR 5
The Tribe also filed a parallel appeal with the Interior
Board of Indian Appeals (IBIA). J.A. 99. The Tribe
alleged that the Bureau’s inaction resulted in a deemed
approval of the Tribe’s proposal and a valid and enforcea-
ble contract. J.A. 104. After filing its appeal with the
IBIA, the Tribe requested a stay of that appeal pending a
decision by the Board. J.A. 103. The Tribe argued that
the Board was the appropriate forum, but that it wanted
to preserve the IBIA appeal in the event that the Board
declined jurisdiction. Id.
In the IBIA’s decision granting the Tribe’s request for
a stay, the IBIA considered its own jurisdiction. J.A. 105.
It noted that to the extent the Tribe seeks to enforce a
contract or assert claims based on an awarded contract,
the IBIA would not have jurisdiction. J.A. 105. The IBIA
noted “that the ISDA regulations appear to distinguish
between a proposal being ‘deemed approved,’ and the
Secretary’s obligation, in such a case ‘to award the con-
tract.’” J.A. 106 (citing 25 C.F.R. § 900.18; id. § 900.19
(“Upon approval the Secretary shall award the con-
tract . . . .”); cf. id. § 900.13 (“Does the contract proposal
become part of the final contract? No, unless the parties
agree.”)). The IBIA concluded that although the Tribe
contended that a deemed contract had arisen by operation
of law, the case appeared to present a pre-award dispute,
and consequently the IBIA had jurisdiction. J.A. 107.
After deciding it had jurisdiction, it granted the Tribe’s
motion to stay. J.A. 107.
Back in the Board appeal, the government moved to
dismiss, arguing that no contract exists between the Tribe
and the government. J.A. 93–100. It argued that the
Tribe’s October letter was not detailed enough to consti-
tute a contract proposal in the general sense and lacked
specific details required for Title I proposals by 25 C.F.R.
§ 900.8. J.A. 96–97. It also argued that even if the pro-
posal in the Tribe’s October letter were deemed approved,
the Bureau would not be obligated to fund the contract
6 YUROK TRIBE v. INTERIOR
because the Tribe requested money for programs that the
government is not currently providing. J.A. 97–98.
Finally, the government argued that the Board did
not have jurisdiction to hear the Tribe’s appeal because it
is not a post-award contract dispute. J.A. 98. It argued
that the “Board has jurisdiction over ‘[Department of
Interior] self-determination contracts’ and ‘disputes
regarding an awarding official’s decision relating to a self-
determination contract.’” J.A. 98 (quoting 25 C.F.R.
§§ 900.215(a), 900.222 and 25 C.F.R. § 900.151(a)(l)). It
noted that, in contrast, the “IBIA has jurisdiction over
‘appealable pre-award decisions.’” J.A. 98 (quoting 25
C.F.R. §§ 900.150(i), 900.152). It argued that the IBIA
was the proper forum in which to determine whether the
Bureau was required to award the contract under
§ 900.18. J.A. 99.
The Board granted the government’s motion to dis-
miss. First, it determined that no proposal was deemed
approved because the 90-day deadline was never trig-
gered. It found that the “Tribe’s October 2011 letter is not
clear in intent and lacks many of the details plainly
required for a contract proposal by 25 U.S.C. § 450f(a)(2)
and 25 CFR 900.8.” J.A. 5. It determined that the Bu-
reau was not required to notify the Tribe of the missing
details—despite a regulation that requires the Bureau to
notify tribes of missing details within 15 days—because
the letter did not make clear that the Tribe was proposing
a Title I contract. J.A. 5; see 25 C.F.R. § 900.15(b). It
further determined that even if the Tribe made its inten-
tions clear at an in-person meeting after the Bureau
asked for clarification, the October letter did not trigger
the 90-day deadline for the Bureau to respond because the
Tribe never clarified its intent in writing. J.A. 5–6.
Second, the Board concluded that even if the Tribe’s
letter was a Title I proposal, a contract could not have
come into existence because the Bureau was not perform-
YUROK TRIBE v. INTERIOR 7
ing the programs discussed in the October letter. J.A. 6.
It read the statute and regulations as requiring self-
determination contracts to “transfer from [the Bureau] to
an Indian tribe programs, functions, services, or activities
which the agency had been performing for the tribe, as
well as funds necessary for performance.” J.A. 6.
The Board dismissed the Tribe’s claim. Although it
found that there was no contract, the Board dismissed for
failure to state a claim rather than for lack of jurisdiction
because it has jurisdiction where a plaintiff alleges the
existence of a contract. J.A. 7 (citing Engage Learning,
Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011)). It
did not, however, directly address the government’s
alternative argument that this is a pre-award dispute
that should be reviewed by the IBIA.
The Tribe appeals. We have jurisdiction pursuant to
41 U.S.C. § 7107(a)(1)(A) and 28 U.S.C. § 1295(a)(10).
DISCUSSION
We review a dismissal for failure to state a claim de
novo. Dehne v. United States, 970 F.2d 890, 892 (Fed. Cir.
1992).
I. The Tribe’s October Letter
The Board determined that the Tribe’s October letter
was not a Title I proposal because it “is not clear in in-
tent.” J.A. 5. We do not agree. The 15-page letter was
entitled “Yurok Tribe Title I Request for the Yurok De-
partment of Public Safety and the Yurok Tribal Court.”
J.A. 18. The letter stated that the Tribe was submitting
“this letter of interest for program inclusion and funding
under Title I of the [ISDA].” J.A. 18. The letter detailed
the particular request and why funds were needed. It was
accompanied by a tribal resolution as required by statute.
And the Tribe sent a follow-up email to the Bureau,
entitled “Yurok Tribe – Title 1 Request and Council Tribal
Resolution.” J.A. 35.
8 YUROK TRIBE v. INTERIOR
None of the alleged deficiencies identified by the gov-
ernment demonstrate that the letter was not a Title I
proposal. The government argues that the proposal was
unclear because the Tribe sent it to the wrong office
within the Bureau. The government does not explain
which portion of the statute requires a tribe to send a
Title I proposal to a particular office. And, in any event,
the Bureau itself forwarded the October letter to the
correct office, which then communicated directly with the
Tribe regarding the proposal. J.A. 36. The government
argues that the letter was not a Title I proposal because it
used words that have legal significance in other types of
contracts between tribes and the government. Even
though the phrases “letter of interest,” “compact,” and
“Annual Funding Agreement” may have legal significance
for other types of tribal contracts, usage of these terms
does not make the letter ambiguous when it identifies
itself as a Title I proposal. The government argues the
letter was not a Title I proposal because it did not include
all of the details required for a proposal under § 900.8.
The regulations speak precisely to this argument. The
regulations require the Bureau to notify a tribe of missing
details within 15 days. See 25 C.F.R. § 900.15(b). The
Bureau did not do so here. Nothing the government
complains of renders the letter ambiguous. Thus, defi-
ciencies in an otherwise unambiguous request for a self-
determination contract cannot excuse the government’s
failure to act within the prescribed period.
The Tribe’s October letter constituted a Title I pro-
posal. As such, it triggered the 90-day deadline under the
ISDA. Thus, we cannot affirm the Board’s dismissal on
the first ground it found.
II. Programs Includable in Title I Contracts
The Board determined that even if the October letter
constituted a Title I proposal no contract could have
arisen from it. J.A. 6. The Board held that a self-
YUROK TRIBE v. INTERIOR 9
determination contract can only cover programs that the
Bureau is already providing. J.A. 6. It then determined
that no contract could have been formed for the programs
discussed in the Tribe’s October letter because the gov-
ernment is not currently administering those programs
for the Tribe. J.A. 6. We do not agree.
Self-determination contracts are not limited to pro-
grams the government is currently providing. Section
450f(a)(1) lists five categories of programs that can be
included in a self-determination contract. Sec-
tion 450f(a)(1)(B) permits self-determination contracts to
be awarded for any programs “the Secretary is authorized
to administer for the benefit of Indians under the Act of
November 2, 1921.” (emphasis added). The language “is
authorized to administer” plainly includes any program
the Secretary of the Interior or the Secretary of Health
and Human Services could authorize under the Act of
November 2, 1921. See 25 U.S.C. § 450b(i). There is no
exclusion for programs that either Secretary “is author-
ized to administer” under the Act of November 2, 1921,
but is not currently providing. Other language from
§ 450f further supports this plain meaning. Sec-
tion 450f(a)(1)(C) permits self-determination contracts to
be awarded for all programs “provided by the Secretary of
Health and Human Services under the Act of August 5,
1954.” (emphasis added). The statute’s language reflects
Congress’s deliberate choice. In the first instance, with
regard to the Act of November 2, 1921, it used the broad
“authorized to administer,” whereas with regard to the
second Act, it used the more narrow “provided by.” We
assume that Congress uses language carefully and pur-
posefully. We thus must give weight to the distinction
drawn by Congress in § 450f and will not read a limitation
into § 450f(a)(1)(B) that self-determination contracts are
limited to programs the government is currently provid-
ing.
10 YUROK TRIBE v. INTERIOR
Relying on the Ninth Circuit’s decision in Los Coyotes
Band of Cahuilla & Cupeño Indians v. Jewell, 729 F.3d
1025 (9th Cir. 2013), the government argues that a self-
determination contract cannot be awarded in this case.
Los Coyotes, however, is factually distinct. There, the
Ninth Circuit considered whether the Secretary properly
declined a contract on the basis that the Bureau was not
providing the programs for which the tribe was requesting
funding. Id. at 1028. Los Coyotes does not absolve the
government’s inaction because it could have declined the
proposal.
Despite the clear authorization language of § 450f, the
government claims that § 450b(j) prevents issuance of a
self-determination contract in this case. Section 450b(j)
defines “self-determination contract” as a contract “be-
tween a tribal organization and the appropriate Secretary
for the planning, conduct and administration of programs
or services which are otherwise provided to Indian tribes
and their members pursuant to Federal law.” The gov-
ernment argues that the definition’s use of “otherwise
provided” means that self-determination contracts are
limited to programs the Bureau is already providing to
the particular tribe in question. The provision, however,
only indicates that a contract can encompass programs
that the government provides to tribes. The Tribe re-
quested funding for law enforcement and court programs.
The government provides these programs to other tribes.
Oral Argument at 18:16–18:23, available at http://
oralarguments.cafc.uscourts.gov/default.aspx?fl=2014-
1529.mp3. It appears that the government has awarded
self-determination contracts that encompass these types
of programs. And the government provides some funding
for the Yurok Tribe’s law enforcement programs already
pursuant to another contract with the Tribe. Section
450b(j) does not prohibit the government from entering
into an agreement with this Tribe for the requested
funding.
YUROK TRIBE v. INTERIOR
11
The government also asserts that §§ 450j-1(a)(1) and
450f(a)(2)(D) limit self-determination contracts to pro-
grams that the government is currently providing. Sec-
tion 450j-1(a)(1) states that “[t]he amount of funds
provided under the terms of self-determination contracts
entered into pursuant to this subchapter shall not be less
than the appropriate Secretary would have otherwise
provided for the operation of the programs or portions
thereof for the period covered by the contract.” The
government argues that because it is not providing the
programs requested by the Tribe, the current funding
level is zero and the government need not contract for any
funding. Section 450j-1(a)(1), by its clear terms, sets a
floor, not a ceiling, on the amount of money that a Tribe
can receive in a self-determination contract. Section 450j-
1(a)(1) does not prohibit the government from including
funding for the requested programs in a self-
determination contract. Section 450f(a)(2)(D) authorizes
the Bureau to decline a contract proposal where “the
amount of funds proposed under the contract is in excess
of the applicable funding level for the contract, as deter-
mined under section 450j-1(a).” The government argues
that allowing the Tribe to receive funding in excess of the
current funding level would render this section meaning-
less because it would prohibit the Secretary from declin-
ing proposals. This, however, is not a case where the
Secretary declined the proposal under § 450f(a)(2)(D).
The government’s discretion to decline a proposal is
irrelevant to what programs can be included in a contract
where the government fails to act. Neither section § 450j-
1(a)(1) nor § 450f(a)(2)(D) support the government’s claim
that self-determination contracts are limited to funding
for programs the government currently provides to the
requesting tribe.
The statutory language is clear: “The Secretary is di-
rected, upon the request of any Indian tribe by tribal
resolution, to enter into a self-determination contract . . .
12 YUROK TRIBE v. INTERIOR
to plan, conduct, and administer programs . . . which the
Secretary is authorized to administer” and “shall, within
ninety days after receipt of the proposal, approve the
proposal and award the contract unless the Secretary
provides written notification to the applicant” declining
the proposal. 25 U.S.C. § 450f(a). Because the govern-
ment failed to respond to the Tribe’s proposal and the
proposal covers programs that the Secretary is authorized
to administer, the statute directs the Secretary to enter
into a contract. We thus cannot affirm the Board’s dis-
missal on the second ground it found.
III. Other Grounds to Affirm
Although we cannot affirm the Board’s dismissal on
either of the grounds it found, a dismissal for failure to
state a claim can be affirmed on any ground supported by
the record. See AquaTex Indus., Inc. v. Techniche Solu-
tions, 479 F.3d 1320, 1328 (Fed. Cir. 2007). Accordingly,
we affirm because this case presents a pre-award dispute
that the Board cannot review.
Under the ISDA, there are two steps to creating a
contract: approval and award. 25 U.S.C. § 450f(a)(2)
(“[T]he Secretary shall, within ninety days after receipt of
the proposal, approve the proposal and award the con-
tract . . . .”). The regulations also recognize this distinc-
tion. 25 C.F.R. § 900.18 (“A proposal that is not declined
within 90 days . . . is deemed approved and the Secretary
shall award the contract . . . .”). It is undisputed that the
Secretary did not decline the Tribe’s proposal within 90
days of either the October or February letters, but it also
did not award a contract. As the government argued
below and in its supplemental briefing to us, this case
presents a pre-award dispute. Because the Secretary has
not yet awarded the Tribe a contract, the Board properly
dismissed this case for failure to state a claim. Engage
Learning, 660 F.3d at 1353.
YUROK TRIBE v. INTERIOR
13
The Tribe strains to argue that a contract has been
awarded. The Tribe argues that a deemed approved Title
I proposal “results in the award of a self-determination
contract.” Appellant’s Supp. Br. at 1. It argues that
approval and award are one in the same because the
statute and regulations state that both must occur within
90 days. Id. at 2–3 (citing 25 U.S.C. § 450f(a)(2); 25
C.F.R. § 900.18).
Even if the proposal was deemed approved after the
Secretary failed to meet the 90-day deadline, however, the
Secretary must still award a contract. That has not
happened here, as demonstrated by the Tribe’s requests
in this case. The Tribe prayed that the Board “[o]rder the
Bureau to enter into a Title I contract,” J.A. 80, and asks
us to remand the matter “for a determination of the terms
of the deemed contract,” Appellant’s Br. at 37. These are
requests for pre-award actions.
In support of its argument that a contract arises as a
matter of law, the Tribe points to two statements made by
the Bureau. First, it identifies a letter from the Bureau in
an unrelated case. In that letter, the Bureau stated that
because a proposal was not declined within 90 days, the
contract was deemed approved and it was not necessary
for the contract to be signed to be effective. Appellant’s
Supp. Br. at 3 (citing Del. Tribe of Indians v. Bureau of
Indian Affairs, IBIA 02-65-A, at 10 (July 26, 2002), avail-
able at http://www.oha.doi.gov/IBIA/IbiaDecisions/isda/
20020726-0265a.PDF)). From this statement, the Tribe
argues that a deemed approved contract is awarded by
operation of law. In context, however, the Bureau’s
statement in that case distinguishes between approval
and award:
The Tribe submitted a proposed [Consolidated
Tribal Government Program] contract on or about
June 1, 2000. As you know, the contract was not
declined within 90 days. Accordingly, the contract
14 YUROK TRIBE v. INTERIOR
is deemed approved by operation of law. 25
U.S.C. § 450f(a)(2) and 25 C.F.R. § 900.18. On
November 29, 2000, the Contracting Officer sent
an award letter on your contract and shortly
thereafter the full amount of funds requested un-
der the contract were disbursed to the Tribe (with
the exception of contract support funds which you
have been assured will be disbursed to the Tribe
when available). Under these circumstances, it is
not necessary for your contract to be signed to be
effective.
Del. Tribe, IBIA 02-65-A, at 10 (emphasis added). It was
not the approval that resulted in the contract being
effective, it was the award and payment. Here, there was
no award or payment to the Tribe. Second, the Tribe
points to a handbook published by the Departments of the
Interior and Health and Human Services that states that
the “failure of agency personnel to act within the 90-day
period . . . results in the award of a contract.” Appellant’s
Supp. Br. at 4 (citing DOI/HHS INTERNAL HANDBOOK, at
39). Even if such a statement were binding on the gov-
ernment, the handbook does not state that a contract
arises by operation of law or that a contract is awarded
automatically. Rather, the statement emphasizes the
importance of responding to proposals within 90 days
because if a proposal is not declined, the Secretary will be
required to award a contract. The use of the term “re-
sults” also indicates that the award occurs after, not
concurrently with, the approval. Neither of these state-
ments support the Tribe’s assertion that a deemed ap-
proved contract is awarded by operation of law.
Even though the Board lacks authority to review this
case as it is still a pre-award case, the Tribe is not with-
out recourse. The Tribe’s case before the IBIA is pending
and the Tribe acknowledges that the IBIA “retains juris-
diction over ‘pre-award decisions.’” Appellant’s Supp. Br.
at 2.
YUROK TRIBE v. INTERIOR
15
CONCLUSION
The dismissal of the Tribe’s complaint for failure to
state a claim upon which relief may be granted is
AFFIRMED
COSTS
No costs.