The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The Tunica-Biloxi Tribe of Louisiana ("Tunica") and the Ramah Navajo School Board, Inc. ("Ramah Navajo"), the plaintiffs in this civil lawsuit, seek declaratory and injunctive relief along with monetary damages against the United States of America, Michael O. Leavitt in his official capacity as the Secretary of the Department of Health and Human Services, and Dirk A. Kempthorne in his official capacity as the Secretary of the Department of the Interior, under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (2000) (the "CDA"), for alleged "massive violations" of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (2000) (the "Indian Self-Determination Act" or the "Act"). Second Amended Class Action Complaint (the "Compl.") ¶ 1. Currently before the Court is the defendants' renewed motion to dismiss in part the plaintiffs' second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and for summary judgment pursuant to Federal Rule of Civil Procedure 56, along with the plaintiffs' renewed cross-motion for partial summary judgment pursuant to Rule 56. Upon carefully reviewing the plaintiffs' second amended complaint, the parties' motions, and all memoranda of law and exhibits submitted by the parties,*fn1 the Court concludes that it must grant in part and deny in part the defendants' motion, deny in part the plaintiffs' cross-motion, and stay further consideration of the parties' cross-motions for the reasons that follow.
Except where indicated otherwise, the following facts are either undisputed or matters of public record. Finding that "the prolonged [f]ederal domination of Indian service programs ha[d] served to retard rather than enhance the progress of the Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government," 25 U.S.C. § 450(a)(1), Congress passed the Indian Self-Determination Act in 1975 to "permit an orderly transition from the [f]ederal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services," id. § 450a(b). The Act was intended to assist in the accomplishment of the "major national goal" of "provid[ing] the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being." Id. § 450a(c).
Pursuant to the Indian Self-Determination Act, the Secretary of the Department of Health and Human Services and the Secretary of the Department of the Interior are "directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof" that are administered by those Secretaries "for the benefit of Indians because of their status as Indians." Id. § 450f(a)(1). The Act provides that "a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or renew a self-determination contract," to the applicable Secretary, after which the Secretary "shall, within ninety days after receipt of the proposal, approve the proposal and award the contract" unless the Secretary finds that one or more of five statutory criteria for declination have been met. Id. § 450f(a)(2). These criteria for declination include a finding that "the amount of funds proposed under the contract is in excess of the applicable funding level for the contract as determined under [the Act]." Id. § 450f(a)(2)(D).
"Whenever the Secretary declines to enter into a self-determination contract or contracts" in whole or in part, he must "state any objections in writing to the tribal organization" and "provide assistance to the tribal organization to overcome the stated objections." Id. § 450f(b)(1)-(2). Further, he must "provide the tribal organization with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised." Id. § 450f(b)(3). Alternatively, "the tribe or tribal organization may, in lieu of filing such an appeal, exercise the option to initiate an action in a [f]ederal district court." Id. However, even if the Secretary finds that the level of funding proposed for a self-determination contract is too high, the Secretary is required to approve the remainder of the contract with "a [lower] level of funding [that is] authorized under [the Act]." Id. § 450f(a)(4)(B).
The "level of funding authorized" by the Indian Self-Determination Act is determined in accordance with 25 U.S.C. § 450j-1. That section provides that "[t]he amount of funds provided under the terms of self-determination contracts . . . 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." Id. § 450j-1(a)(1). In addition to this baseline level of funding, also known as the "Secretarial amount," "[t]here shall be added . . . contract support costs," id. § 450j-1(a)(2), which "include the costs of reimbursing each tribal contractor for reasonable and allowable costs of" both "(i) direct program expenses for the operation of the [f]ederal program that is the subject of the contract" as well as "(ii) any additional administrative or other expense related to the overhead incurred by the tribal contractor in connection with the operation of the [f]ederal program, function, service, or activity pursuant to the contract," provided such funding does not duplicate the Secretarial amount, id. § 450j-1(a)(3)(A). Further, "the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive" under the contract. Id. § 450j-1(a)(3)(B).
There are two statutory restrictions on the amount of funding that the Secretary may provide for self-determination contracts pursuant to § 450j-1. First, "[n]otwithstanding any other provision in [the Indian Self-Determination Act], the provision of funds . . . is subject to the availability of appropriations[,] and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization." Id. § 450j-1(b). Second, "[b]efore, on, and after October 21, 1998, . . . funds available to the Indian Health Service . . . for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to contracts, grants[,] and compacts" issued pursuant to the Act, "and no funds appropriated by [the Act] shall be available for any contract support costs or indirect costs associated with any contract, grant, cooperative agreement, self-governance compact, or funding agreement entered into between an Indian tribe or tribal organization and any entity other than the Indian Health Service." Id. § 450j-2. This same restriction applies to all "funds available to the Department of the Interior" from November 29, 1999, onwards. Id. § 450j-3.
The Indian Self-Determination Act also restricts the terms of self-determination contracts. Pursuant to 25 U.S.C. § 450j(c)(1)(A), a self-determination contract may not last longer than three years "in the case of [anything] other than a mature contract, unless the appropriate Secretary and the tribe agree that a longer term would be advisable." Mature contracts,*fn2 on the other hand, may last "for a definite or an indefinite term, as requested by the tribe." Id. § 450j(c)(1)(B). "The amounts of such contracts may be renegotiated annually to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the tribal organization." Id. § 450j(c)(2).
Finally, self-determination contracts under the Act must "incorporate by reference the provisions of [a] model agreement" described in the Act itself. Id. § 450l(a)(1). This model agreement provides, inter alia, that, "[s]ubject to the availability of appropriations, the Secretary shall make available to the [contracting Indian tribe or tribal authority] the total amount specified in" an annual funding agreement to be executed separately and incorporated by reference in the self-determination contract. Id. § 450l(c). "Such amount shall not be less than the applicable amount determined pursuant to [§ 450j-1]." Id.
"Since before 1995," the plaintiffs have entered into self-determination contracts with the Indian Health Service (the "IHS"), a component of the Department of Health and Human Services, "to provide health services to members of federally-recognized Indian tribes pursuant to the [Indian Self-Determination Act]." Pls.' Facts ¶ 1. For all of the contracts at issue here, the plaintiffs and the IHS agreed to use a so-called "indirect cost rate"*fn3 negotiated by the plaintiffs and the Office of the Inspector General (the "OIG") of the Department of Interior (the "DOI") until 2003 and between the plaintiffs and the National Business Center, another component of the DOI, thereafter to calculate the amount of funding necessary to cover the plaintiffs' indirect costs. Defs.' Facts ¶¶ 10, 16, 22, 28, 34, 40, 46, 56, 62, 68, 74, 80, 86, 92, 98, 104. The DOI, in turn, utilized its own version of an accounting methodology set forth in a circular created by the Office of Management and Budget (the "OMB") known as "OMB Circular A-87" to determine an appropriate indirect cost rate for each contract. Pls.' Facts ¶ 16. OMB Circular A-87, now codified at Part 225 of Title 2, Subchapter A, Chapter II of the Code of Federal Regulations, Cost Principals for State, Local, and Indian Tribal Governments, 2 C.F.R. § 225.45 (2008), delineates the appropriate method for calculating state and local indirect cost rates. Under that methodology,
Where a grantee agency's major functions benefit from its indirect costs to approximately the same degree, the allocation of indirect costs may be accomplished by classifying the grantee agency's total costs for the base period as either direct or indirect and dividing the total allowable indirect costs . . . by an equitable distribution base. The result of this process is an indirect cost rate[,] which is used to distribute indirect costs to individual [f]ederal awards. The rate should be expressed as the percentage [that] the total amount of allowable indirect costs bears to the base selected.
Id. § 225 app. E(C)(2)(a). "The distribution base may be total direct costs . . . , direct salaries and wages, or another base [that] results in an equitable distribution." Id. § 225 app. E(C)(2)(c).
Following the guidelines set forth in Appendix E to Part 225, the DOI used the "total direct costs" necessary to support the tribal function at issue as the "equitable distribution base" for purposes of calculating the appropriate indirect cost rate to be used in the contracts at issue here. This process was explained succinctly by the Tenth Circuit in Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997) ("RNC"), as follows:
Under this formula, the [applicable] Secretary adds all funds that will be received by a tribe in a given fiscal year, including those not received in connection with a self-determination contract, into the denominator. The numerator is the amount of indirect costs the tribe is expected to incur in a given financial year. The numerator is divided by the denominator, resulting in an indirect cost rate. To produce the amount of indirect cost funding that will be provided to a tribe in a given fiscal year, the [applicable] Secretary then multiplies the amount of direct cost funding under the self-determination contract by the indirect cost rate.
The plaintiffs did not challenge the indirect cost rates calculated by these agencies through the DOI's appeals process. Defs.' Facts ¶¶ 6-7. Nor did they dispute any of their contracts or annual funding agreements that incorporated those calculations prior to the execution of those agreements, id. ¶¶ 50, 108, or suspend any of their contracts due to insufficient funding, id. ¶¶ 51, 109. Further, the plaintiffs did not and do not dispute that the defendants paid the amounts set forth in the parties' annual funding agreements in full. Id. ¶¶ 8-9, 14-15, 20-21, 26-27, 32-33, 38-39, 44-45, 52-55, 60-61, 66-67, 72-73, 78-79, 84-85, 90-91, 96-97, 102-103. Rather, the plaintiffs challenge the manner in which these amounts were calculated by the DOI and implemented by the IHS.
As required by the CDA, Tunica and Ramah Navajo initially presented their disputes regarding the sufficiency of the funding they received for indirect costs in letters to the Acting Senior Contracting Officer of the IHS. Tunica presented three separate claims in its letter, all relating to contracts spanning fiscal years 1996-2001.*fn4 First, it asserted that the IHS failed to calculate the appropriate amount of indirect costs for the tribe using the indirect cost rate crafted by the DOI (the "Shortfall Claim"). Defs.' Ex. 23 (Letter from Earl J. Barbry, Sr., Chairman, Tunica-Biloxi Tribe of Louisiana, to Ralph W. Ketcher, Jr., Acting Senior Contracting Officer, Indian Health Service (Apr. 2, 2001)) (the "Tunica CDA Claim") at 1-4.*fn5 Second, it claimed that the DOI miscalculated its indirect cost rate by "inclu[ding] . . . other federal agency programs in the direct cost base under OMBCircular A-87," which "cause[d] the indirectcost rate to go down" (the "Rate Dilution Claim"). Id. at 4.
Third, Tunica argued that the DOI erred in establishing "successive year indirect cost rates" by "not complying with the carry[-]forward rules established by [OMB Circular] A-87 as regards actual under-recoveries of indirect costs from other federal agencies" (the "Carry-Forward Claim"). Id. at 5. Specifically, "none of the actual under-recoveries experienced in [fiscal year] 1996 forward were carried forward by the [DOI], but all of the actual over-recoveries of [Tunica] were carried forward." Id. at 6. Tunica subsequently filed a letter raising identical claims with respect to its self-determination contract for fiscal year 1995. Defs.' Ex. 24 (Letter from Earl J. Barbry, Sr., Chairman, Tunica-Biloxi Tribe of Louisiana, to Ralph W. Ketcher, Jr., Acting Senior Contracting Officer, Indian Health Service (Sept. 27, 2001)) (the "Supplemental Tunica CDA Claim") at 1-5.
Ramah Navajo filed a letter raising most of the same claims raised by Tunica in August of 2001. Like Tunica, Ramah Navajo claimed that the IHS erred in determining the amount of funding required to cover indirect costs for Ramah Navajo's self-implementation contracts for fiscal years 1993-1996 by "adding to the [Ramah Navajo's] annual funding agreements only the estimated amount [that was] available from annual appropriations" to support indirect costs. Defs.' Ex. 26 (Letter from Jim Hooper, Jr., Administrative Services Director, Ramah Navajo Board of Trustees, to Diego Lujan, Director, Division of Contracts & Grants, Albuquerque Area Indian Health Service (Aug. 31, 2001)) (the "Ramah Navajo CDA Claim") at 2.*fn6 And like Tunica, Ramah Navajo asserted that the IHS erred in adopting the flawed methodology of the DOI in using an indirect cost rate to determine the amount of indirect costs to be funded by the IHS. Id. at 3-4.
The IHS responded to Ramah Navajo's claims first in a decision issued on December 18, 2001. Pls.' Ex. 53, Ex. 3 (Letter from Diego G. Lujan, Contracting Officer, to Jim Hooper, Jr., Administrative Services Director, Ramah Navajo School Board, Inc. (Dec. 18, 2001)) (the "Ramah Navajo CDA Decision") at 1. It concluded that Ramah Navajo's Shortfall Claim was without merit because Ramah Navajo's self-determination contract governing fiscal years 1993 and 1994 "contained a specific cost ceiling beyond which there would be no additional cost to the government," and in fiscal years 1995 and 1996 because "there were insufficient funds available to the Albuquerque Area IHS to make additional indirect cost funds available to [Ramah Navajo] without reducing funding for programs serving other Area tribes." Id. at 5. The IHS further concluded that Ramah Navajo's Rate Dilution Claim lacked merit because there was "no evidence" that the procedure used by the DOI to calculate an indirect cost rate actually resulted in an "adverse adjustment" to Ramah Navajo and because, in its view, the Indian Self-Determination Act "[did] not require [the] IHS to adjust the indirect cost rate [that] the [Ramah Navajo] negotiated with [the DOI] to compensate the tribe for indirect costs allocable to other agencies that do not allow for full indirect cost recovery," id. at 6, but rather "statutorily barred" the IHS "from awarding indirect cost funding for any cost shared with any other federal program," id. at 7. Further, the IHS held that it "properly calculated the amount of indirect funds associated with the [Ramah Navajo's] self-determination contract[s]" and that the amount of funds that could be paid was limited in any event by the availability of appropriated funds. Id.
The IHS issued a lengthier but substantively similar decision with respect to Tunica's claims. Pls.' Ex. 35, Ex. 6 (Letter from Ralph W. Ketcher, Jr., Senior Contracting Officer, to Earl Barbry, Sr., Chairman, Tunica-Biloxi Tribe of Louisiana) (the "Tunica CDA Decision") at 1. It concluded that, with respect to Tunica's Shortfall Claim, "there were insufficient funds available to the Nashville Area IHS to make additional indirect cost funds available to [Tunica] without reducing funding for programs serving other Area tribes" (i.e., the same rationale proffered with respect to Ramah Navajo's Shortfall Claim), id. at 6, and that Tunica's Rate Dilation Claim was defective because Tunica had not established that the methodology used by the DOI to calculate the indirect cost rate used in Tunica's self-determination contracts was adverse to Tunica and because the IHS was not required to pay-indeed, was statutorily prohibited from paying-for indirect costs shared with any other federal program, id. at 8-9. The IHS also held that Tunica's Carry-Forward Claim was without merit because Tunica "presented no evidence that [OMB Circular] A-87 was violated" and that it was "not authorized to adjust rates negotiated under OMB Circular A-87 unless statutorily required." Id. at 8.
Following these decisions, the plaintiffs initiated this lawsuit on December 9, 2002. They amended their complaint on February 4, 2003, and again on March 12, 2003, naming the predecessors to the current defendants, the Interim Director of the IHS, the Inspector General of the OIG, and the Director of the National Business Center as defendants in their official capacities. Compl. ¶¶ 8-13-B. In their second amended complaint, the plaintiffs allege that the method used by the OIG and the National Business Center to ascertain an indirect cost rate for the plaintiffs "systematically under[-]calculates the [i]ndirect [c]ontract [s]upport [c]osts needed to operate IHS [Indian Self-Determination Act] contracts," id. ¶ 21, and "incorrectly compute[s] carry[-]forward adjustments under [OMB] Circular A-87," id. ¶ 23-i.e., their Rate Dilution and Carry-Forward Claims. According to the plaintiffs, the consequences of these alleged errors "have been fiscal crisis, diminution of direct program services, and depletion of tribal financial resources, in direct contravention of the purposes and policy of [the Indian Self-Determination Act]." Id. ¶ 24. The plaintiffs therefore seek damages and declaratory and injunctive relief, id. at 15, against the defendants for their alleged contractual breaches (or, in the alternative, breaches of the implied covenant of good faith and fair dealing) and breaches of their fiduciary duty, id. ¶¶ 34-46.*fn7
The defendants moved to dismiss the plaintiffs' second amended complaint on March 31, 2003. In an unpublished memorandum opinion issued on December 9, 2003, and amended on January 22, 2004, this Court granted the motion in part and denied it in part. Tunica-Biloxi Tribe of La. v. United States, Civil Action No. 02-2413 (RBW), slip op. at 1 (D.D.C. Jan. 22, 2004). Specifically, the Court "dismiss[ed] the plaintiffs' claims for payments in those years for which payments [were] sought before fiscal year 1995 and after fiscal year 2001" in the case of Tunica and before fiscal year 1993 and after fiscal year 1996 with respect to Ramah Navajo because those claims had not been presented properly to the IHS as required by the CDA. Id. at 15.*fn8 But the Court refused to dismiss the plaintiffs' claims in their entirety as moot notwithstanding the defendants' contention that they no longer had any appropriated funds from which the plaintiffs' claims could be satisfied due to the lack of any evidence to support the defendants' argument, id. at 18-26, and declined to rule on whether Tunica had standing to seek any relief with respect to fiscal years after 1996 without further briefing, id. at 29, although it noted that it was "clear . . . that [the] plaintiffs have standing to challenge the indirect [contract support costs] they received for fiscal years 1995 and 1996," id. at 28.
In addition, the Court rejected the defendants' argument that the plaintiffs' claims were time-barred by the statute of limitations set forth in 28 U.S.C. § 2401(a), Tunica-Biloxi, slip op. at 29-30, as well as their assertion that the United States should be dismissed as a party to this case under the doctrine of sovereign immunity, id. at 30-36. However, the Court agreed with the defendants that the Interim Director of the IHS, the Inspector General of the OIG, and the Director of the National Business Center should all be dismissed from the case because "[t]he Court [did] not think" that "the [Indian Self-Determination Act] grant[ed] the Court jurisdiction over any named federal official based on the United States'[s] waiver of sovereign immunity," id. at 36 (emphasis in original), and "[t]hese individually named defendants [were] merely agents of the Secretar[ies] and [the] plaintiffs would not be entitled to any greater relief by the inclusion of these defendants in [the plaintiffs'] lawsuit," id. at 36-37. Finally, the Court held that the plaintiffs could not state viable claims for breach of a fiduciary duty or breach of the implied covenant of good faith and fair dealing and that these claims should therefore be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 37-40.
In response to the parties' joint request, the Court entered an order on June 10, 2004, staying this case until the Supreme Court could resolve certain related cases before it. That order was vacated on November 7, 2005, after which the defendants filed a motion to dismiss the plaintiffs' second amended complaint in its entirety, Defendants' Motion to Dismiss at 1, and the plaintiffs filed a motion for summary judgment with respect to its claims for those years in which Congress appropriated funds to the Department of Health and Human Services in a lump sum, Motion for Partial Summary Judgment as to ["]Lump Sum Years["] (1995-1997) at 1-2, to which the defendants eventually responded by filing both an opposition and a cross-motion for summary judgment, Defendants' Cross-Motion for Summary Judgment at 1. Due to the need for discovery to resolve these motions, the Court set forth a schedule for discovery pursuant to Federal Rule of Civil Procedure 56(f), denied the parties' motions without prejudice, and set a briefing schedule for renewed motions on June 5, 2006.
While its lawsuit proceeded apace before this Court, Ramah Navajo filed new Shortfall and Rate Dilution Claims for fiscal year 1998 with the IHS in a letter prepared in late 2003. Defs.' Ex. 28 (Letter from Jim Hooper, Jr., Executive Director, Ramah Navajo School Board, Inc., to Diego Lujan, Director, Division of Contracts & Grants, Albuquerque Area Indian Health Service (Dec. 30, 2003)) (the "Supplemental Ramah Navajo CDA Claim") at 1-4. It subsequently issued yet another letter on September 21, 2005, in which it reiterated its Shortfall and Rate Dilution Claims for fiscal years 1999-2003 and also raised Carry-Forward Claims for these fiscal years. Defs.' Ex. 29 (Letter from Bennie Cohoe, Interim Executive Director, Ramah Navajo Board of Trustees, to Diego G. Lujan, Director, Office of Contracts & Grants, Albuquerque Area Indian Health Service (Sept. 21, 2005)) (the "Second Supplemental Ramah Navajo CDA Claim") at 1-2.*fn9 When the IHS did not act on these claims in a timely manner, Ramah Navajo filed a supplemental complaint with this Court adding these claims pursuant to Federal Rule of Civil Procedure 15(d). Supplemental Complaint (the "Suppl. Compl.") ¶¶ 3-5.
After Ramah Navajo filed its supplemental complaint and the parties completed discovery, the plaintiffs renewed their motion for partial summary judgment on December 21, 2006, Plaintiffs' Motion for Partial Summary Judgment at 1, while the defendants filed a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted or for summary judgment that same day, Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment at 1. After the close of briefing on those motions, the parties filed numerous supplemental notices of authority, supplemental declarations, and new exhibits, along with other miscellaneous documents. This bevy of supplemental filings led the Court to enter an order on March 17, 2008, denying both motions without prejudice and a separate order on March 28, 2007, setting a forth a revised (and more structured) briefing schedule so as to simplify the record before the Court upon which the parties' motions would be addressed as much as possible.
Pursuant to the Court's revised scheduling order, the defendants filed a renewed dispositive motion on April 20, 2008. In their renewed motion, the defendants seek to dismiss some of the plaintiffs' claims-including all claims against Secretary Kempthorne-for lack of subject-matter jurisdiction and seek summary judgment with respect to the remainder of the plaintiffs' claims. Defs.' Mem. at 1-2. With respect to subject-matter jurisdiction, the defendants argue that the plaintiffs' claims against Secretary Kempthorne are moot because the plaintiffs do not seek any actionable relief against him, id. at 20-21, and in any event must be dismissed due to the defendants' failure to exhaust the administrative remedies available to them, id. at 21-22. They further argue that Ramah Navajo's claims for fiscal years 1997-2003 must be dismissed because it did not present any claim for fiscal year 1997 to the IHS, did not present its Carry-Forward Claim to the IHS for fiscal year 1998, and did not adequately present any of its claims to the IHS for fiscal years 1998-2003. Id. at 17-18.*fn10
The defendants' arguments in support of summary judgment are more complex. They argue that summary judgment should be granted in their favor because the IHS fully complied with the terms of its self-determination contracts with the plaintiffs, including the funding levels agreed to by the plaintiffs, id. at 22-25, and that these contracts do not violate the Indian Self-Determination Act because the Act does not require a specific amount of funding for indirect costs, but rather contemplates negotiation of the appropriate amount of funding by the parties, id. at 25-29. They further argue that the plaintiffs have waived any claims that they might have been able to assert under the Indian Self-Determination Act or should be estopped from asserting such claims by agreeing to and accepting performance under the self-determination contracts negotiated with the IHS instead of forcing the Secretary for the Department of Health and Human Services to decline their own proposed contracts with higher rates and appealing that declination through the agency appeals process or directly in federal district court. Id. at 52-59. The defendants also argue that summary judgment in their favor is appropriate with respect to all of the plaintiffs' claims because the plaintiffs actually recovered more indirect costs from the IHS than they actually expended, and any additional amounts awarded to the plaintiffs would result in a windfall. Id. at 59-60. Finally, they contend that, at a minimum, the Court should grant summary judgment in their favor with respect to the plaintiffs' Rate Dilution Claims because the Indian Self-Determination Act permits, and, indeed, mandates, the methodology used by the OIG and the National Business Center to calculate indirect cost rates, id. at 38-52, and with respect to all of the plaintiffs' claims for fiscal years after 1997 because Congress specifically limited its appropriations to the Department of Health and Human Services beginning in fiscal year 1998, id. at 29-31.
The plaintiffs strenuously object to the notion that their claims for fiscal years 1998-2003 were not adequately presented to the IHS, including Ramah Navajo's Carry-Forward Claim for fiscal year 1998. Pls.' Mem. at 27-31.*fn11 They argue that their claims against Secretary Kempthorne are justiciable because the Court can award injunctive relief in their favor. Id. at 32-33. Further, they assert that they are not required to exhaust any administrative remedies available to them with respect to those claims because they have already exhausted the administrative remedies provided by the CDA and it would be futile to appeal the OIG's and National Business Center's methodology within the Department of the Interior. Id. at 33-34.
With respect to the defendants' arguments in support of their request for partial summary judgment, the defendants contend that the Indian Self-Determination Act requires full funding of all contract support costs, including indirect costs, for every self-determination contract, id. at 47-48, and that the contract price for their self-determination contracts necessarily included the full amount of funding necessary to cover those costs, id. at 12-14. They further argue that the Indian Self-Determination Act does not require that the IHS adhere to the methodology set forth in OMB Circular A-87, id. at 44-46, that applying that methodology to self-determination contracts violates the Indian Self-Determination Act because it does not provide for full funding of a tribe or tribal authority's indirect costs, id. at 46-47, and that the defendants are collaterally estopped from arguing otherwise by the Tenth Circuit's decision in RNC, id. at 15-22. The plaintiffs also dispute the defendants' waiver and estoppel arguments, asserting that these arguments are procedurally infirm, id. at 53-56, that the plaintiffs could not waive their rights under the Indian Self-Determination Act, id. at 56-61, and that they have not waived their rights or engaged in conduct warranting estoppel of their claims in any event, id. at 61-64. They dismiss the defendants' reliance on Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005), as support for their "windfall" argument as "misplaced," Pls.' Mem. at 64, and argue that the carry-forward methodology used by the DOI and accepted by the IHS improperly reduces the amount of indirect cost funding provided by the IHS in future years, thereby violating the terms of the plaintiffs' self-determination contracts and the Indian Self-Determination Act, id. at 22-25.
The plaintiffs also argue extensively that the limitations placed on the appropriations provided by Congress to the Secretary of Health and Human Services to fund self-determination contracts for fiscal years after 1997 do not excuse the IHS's obligations under the Indian Self-Determination Act. First, they contend that the Secretary is bound by his contractual obligations regardless of whether funds are actually available to satisfy those obligations. Id. at 35-40. Second, they assert that the provision in the Indian Self-Determination Act making the Secretary's funding obligations "subject to the availability of appropriations," 25 U.S.C. § 450j(c)(1), applies "only to the out-years of multi-year or indefinite term contracts," not the contracts at issue here. Pls.' Mem. at 40 (emphasis removed). Third, they argue that even "capped" appropriations from Congress are subject to the "lump sum" rule announced in Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005), which held that the Secretary is liable for any contractual obligations where the "lump sum" of the funds appropriated by Congress would cover the specific obligation at issue even if the funds would not cover all of the obligations undertaken by the Secretary, Pls.' Mem. at 41-43. Finally, they contend that the Secretary's failure to request sufficient funding to cover his contractual obligations negates any defense he might otherwise assert based on the inadequate level of funding appropriated to him by Congress. Id. at 43. The plaintiffs argue not only that summary judgment in the defendants' favor is inappropriate with respect to those fiscal years where appropriations were "capped" by Congress, but that summary judgment should be entered in their favor for those fiscal years where Congress appropriated money in a "lump sum" to the Secretary, id. at 14.
In their combined reply memorandum in support of their dispositive motion and opposition to the plaintiffs' cross-motion for partial summary judgment, the defendants reiterate their jurisdictional arguments, Defs.' Reply/Cross-Opp'n at 3-8, and seek to dismiss additional arguments raised by the plaintiffs in their opposition and cross-motion in support of their Carry-Forward Claims for failure to exhaust administrative remedies, id. at 3-4. The defendants dispute the preclusive effects of the Tenth Circuit's ruling in RNC, id. at 11-20, and argue that neither their self-determination contracts nor the Indian Self-Determination Act itself requires any funding for indirect costs in addition those amounts negotiated by the parties, id. at 8-11, or the adoption of any particular methodology for the calculation of such funding, id. at 20-26. They renew their waiver, estoppel, and "windfall" arguments, id. at 26-29, and assert that "[w]hile there is a general trust relationship between the Indian people and the United States, . . . this relationship is not actionable," id. at 29. Finally, they contend that by seeking summary judgment only with respect to their claims for fiscal years in which Congress appropriated funds to the Secretary of Health and Human Services in a lump sum, the plaintiffs have essentially conceded that their claims for fiscal years where congressional appropriations were "capped" are "legally baseless." Id. at 30.
The plaintiffs devote much of their cross-reply memorandum to their collateral estoppel argument, Pls.' Cross-Reply at 7-12, as well as to their arguments regarding the need for full funding of indirect costs and the use of a different methodology to determine the amount of those costs under the Indian Self-Determination Act and the parties' contracts, id. at 5-7, 12-14. They revisit their earlier arguments concerning subject-matter jurisdiction, id. at 2-5, and waiver and estoppel, id. at 14, and once again argue that they will not receive any "windfall" should they succeed on their claims, id. at 15. Finally, they describe the defendants' contention that they have conceded the baseless nature of their claims for "lump sum" years as "the silliest argument of all," and opine that "[t]he bureaucratic resistance to Indian self-determination and the panoply of insupportable and overbroad defenses in this litigation demonstrate just how far [the d]efendants have strayed from their trust duties." Id. at 15.
As the Court noted previously, the defendants seek dismissal of some of the plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(1), while both sides seek summary judgment pursuant to Federal Rule of Civil Procedure 56. Further, the Court's analysis below implicates dismissal not only under Rule 12(b)(1), but also under Federal Rule of Civil Procedure 12(b)(6). The Court therefore addresses the applicable standard for each of these three rules.
A. Motion to Dismiss under Rule 12(b)(1)
Broadly speaking, there are two types of Rule 12(b)(1) motions. "A facial challenge attacks the factual allegations of the complaint that are contained on the face of the complaint, while a factual challenge is addressed to the underlying facts contained in the complaint." AlOwhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003) (internal quotation and citations omitted). Where a defendant makes a facial challenge, "the [district] court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party," Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006), just as it would on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) (noting that the standard for facial challenge to subject-matter jurisdiction "is similar to that of Rule 12(b)(6)"). On the other hand, where a factual challenge is made, a district court "may consider materials outside the pleadings" to determine whether it has subject-matter jurisdiction over the challenged case or claims, Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005), and "the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence," Erby, 424 F. Supp. 2d at 182.
B. Motion to Dismiss under Rule 12(b)(6)
As with facial challenges to subject-matter jurisdiction under Rule 12(b)(1), the Court "must treat the complaint's factual allegations as true and must grant [the] plaintiff the benefit of all reasonable inferences from the facts alleged" in considering motions to dismiss under Rule 12(b)(6). Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotations omitted). Unlike motions to dismiss under Rule 12(b)(1), factual challenges are not permitted under Rule 12(b)(6), and the Court may only consider the facts alleged in the complaint, any documents attached as exhibits thereto, and matters subject to judicial notice in weighing the merits of the motion. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). The Court's focus is therefore restricted to the facts as alleged by the plaintiff, which must be sufficiently detailed "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965 (2007).
C. Motion for Summary Judgment under Rule 56
Under Rule 56, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must also draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation and citation omitted), for "conclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation and citation omitted). If the Court concludes that "the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Based upon the positions taken by the parties in their respective memoranda of law, the issues before the Court are roughly segregable into two categories: issues implicating the Court's subject-matter jurisdiction to consider certain claims raised by the plaintiffs, and issues concerning the legal obligations imposed upon the defendants by their self-determination contracts with the plaintiffs and by the Indian Self-Determination Act. Because "[j]urisdiction must be established before a federal court may proceed to any other question," Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 463 (D.C. Cir. 1999), the Court will begin its analysis with the question of subject-matter jurisdiction before proceeding to the merits of the parties' claims concerning the Indian Self-Determination Act and the terms of their self-determination contracts.
A. Subject-Matter Jurisdiction
Just as there are generally two categories of issues before Court overall, so too can the issues before the Court concerning subject-matter jurisdiction be divided into two groups: those issues concerning the Court's subject-matter jurisdiction over Secretary Kempthorne, and those issues relating to the presentment of the plaintiffs' claims to the IHS in accordance with the requirements of the CDA. The Court considers each category of issues in turn.
1. The Claims Against Secretary Kempthorne
The defendants make two arguments with respect to Secretary Kempthorne: (1) that the plaintiffs' claims are moot because they cannot "yield any monetary relief," Defs.' Mem. at 20, and (2) that the plaintiffs' claims against Secretary Kempthorne must be dismissed because "they failed to exhaust their administrative remedies," id. at 21. The former argument is properly designated as one implicating the Court's subject-matter jurisdiction. See Southern Co. Servs., Inc. v. FERC, 416 F.3d 39, 43 (D.C. Cir. 2005) (describing "the question of mootness" as "a threshold jurisdictional issue" (internal quotation and citation omitted)). The latter argument is not. See Lindsey v. United States, 448 F. Supp. 2d 37, 50-54 (D.D.C. 2006) (Walton, J.) ("Only where a statute contains sweeping and direct statutory language indicating that there is no federal jurisdiction prior to exhaustion may courts conclude that a particular exhaustion requirement is jurisdictional." (internal quotation and citation omitted)). The Court considers both of these issues below.
"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation and citation omitted). "That restriction requires that the party invoking federal jurisdiction have standing- the personal interest that must exist at the commencement of the litigation." Davis v. FEC, ___ U.S. ___, ___, 128 S.Ct. 2759, 2768 (2008) (internal quotation and citation omitted). "The requisite elements of Article III standing are well established: [a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and ...