ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
This
case, brought under the Indian Self-Determination and
Education Assistance Act (“ISDEAA”), 25 U.S.C.
§ 5301 et seq., concerns a medical clinic in
McDermitt, Nevada, a small hamlet located in a remote area of
the state near the Oregon border. See Pl.'s Br.
at 7-8.[1] In February 2016, the Fort McDermitt
Paiute and Shoshone Tribe (the “Tribe”) informed
the Indian Health Service (“IHS”)-an agency
within the Department of Health and Human Services
(“HHS”)-that it wished to take over operation of
the clinic. AR 58. In March 2016, IHS announced that it
intended to close the clinic. Pl.'s Br. at 9; AR 42-47.
The Tribe and IHS began negotiating a “self-governance
compact and funding agreement” pursuant to Title V of
ISDEAA, under which the Tribe would operate the clinic.
Pl.'s Br. at 10. The parties were able to reach agreement
in some areas, but not all. On October 13, 2016, the Tribe
set forth its position on five remaining sticking points in a
“final offer” submitted pursuant to 25 U.S.C.
§ 5387(b). AR 108-15. IHS responded on November 23,
2016, with a letter (the “Declination Letter”)
rejecting the Tribe's proposal on all five points. AR
130-41. The parties subsequently resolved three of the five
issues through further negotiations. See Pl.'s
Br. at 10.
The
parties still disagree whether IHS properly rejected two of
the Tribe's proposals under IDSEAA, which sets out
limited grounds on which IHS may do so. First, the parties
dispute whether IHS's rejection of the Tribe's
requested funding level was proper. IHS asserts that it
properly rejected the request, because the amount of funds
the Tribe proposed exceeded the funding level to which the
Tribe was entitled. The Tribe's final offer requested $1,
106, 453 in funding (which consisted of $603, 842 for the
clinic and $502, 611 for an emergency medical services
program that the Tribe also operates). AR 112-13. IHS claimed
in its Declination Letter that the Tribe was entitled to no
more than $375, 533. AR 137-38. Second, the parties dispute
whether IHS properly rejected the Tribe's proposal to
include a provision related to housing for clinic employees
in the funding agreement. AR 109, 132-34. The parties have
cross-moved for summary judgment on these issues. ECF Nos.
14, 16.
For the
reasons set forth below, the Court will deny both motions
without prejudice as they relate to the funding issue, and
order further proceedings as set forth below. The Court will,
however, enter summary judgment for the Tribe on the
employee-housing issue.
A.
Standard of Review
As an
initial matter, the parties disagree over the relevant
standard of review. Defendants assert that the Court should
review its decision in the Declination Letter under the
standard provided by the Administrative Procedure Act
(“APA”), 5 U.S.C. § 551 et seq.
Defs.' Br. at 12. The Tribe disagrees and seeks de
novo review. Pl.'s Br. at 10-12. The Court is
persuaded by opinions holding that ISDEAA requires de
novo review of the government's decision to reject a
“final offer” from a tribe. See, e.g.,
Redding Rancheria v. Hargan, 296 F.Supp.3d 256, 265
(D.D.C. 2017); Manilaq Ass'n v. Burwell, 170
F.Supp.3d 243, 247 (D.D.C. 2016); Pyramid Lake Paiute
Tribe v. Burwell, 70 F.Supp.3d 534, 541-42 (D.D.C.
2014).
Therefore,
the Court will apply the familiar standard for summary
judgment under Federal Rule of Civil Procedure 56. The Court
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Summary judgment is appropriately
granted when, viewing the evidence in the light most
favorable to the non-movants and drawing all reasonable
inferences accordingly, no reasonable jury could reach a
verdict in their favor.” Lopez v. Council on
Am.-Islamic Relations Action Network, Inc., 826 F.3d
492, 496 (D.C. Cir. 2016).
B.
Recurring Funding Amount
The
more significant of the two remaining disputed issues
concerns whether the Tribe's final offer proposed
recurring funding that exceeded the level to which the Tribe
was entitled from IHS's “Hospitals &
Clinics” budget line. Pl.'s Br. at 13; Defs.'
Br. at 12-13. Both parties agree that the statute permits IHS
to reject the Tribe's offer to the extent the funding
requested exceeds the amount that Defendant Price, as the
head of HHS, “would have otherwise provided for the
operation of the programs or portions thereof.” 25
U.S.C. § 5325(a)(1); see Id. § 5385(g)
(incorporating this standard from Title I of ISDEAA into
Title V); Pl.'s Br. at 12; Defs.' Br. at 3-4. The
instant record, however, does not provide clarity about what
this amount is.
The
problem lies in the fact that the parties have presented the
Court with nothing more than a bare “administrative
record” with no supporting testimony. The record
consists largely of correspondence between the Tribe and IHS,
along with financial spreadsheets and similar documents.
See AR. It is notably devoid of affidavits or
testimony that explain what the numbers in these documents
mean.[2] These documents, and the numbers in them,
lend themselves to different interpretations. As the
Tribe's counsel aptly noted at oral argument, there are
“a lot of numbers in this record, ” and the Tribe
itself found the financial information proffered by IHS
“confusing” during the administrative process.
Oral Arg. Tr. at 41:6-12.
One
could reasonably interpret this record to create genuine
issues of material fact about the funding amounts in dispute.
To take a particular example: at oral argument, both parties
discussed a table attached as Exhibit 5 to the Tribe's
October 2016 final offer letter. AR 125. The table contains
budget information for the 2016 fiscal year. See Id.
The “Hospitals & Clinics” line shows
“expenditures” of $603, 842, but a
“budgeted allowance” of only $181, 778, resulting
in a negative “balance” of $422, 064. It is
unclear which number may have represented the amount that HHS
intended to spend on the clinic in 2016. The Tribe asserts
that the “expenditures” amount of $603, 842 is
what HHS would have spent. Oral Arg. Tr. at 39:14-40:12.
Defendants argue, however, that HHS would not have spent more
than it had budgeted (or at least, not from the
“Hospitals & Clinics” budget line at issue).
Id. at 63:10-22, 65:14-18. The Court has no
affidavits or other testimony to back up either party's
assertion about what this document means.
Nor is
it clear how these numbers line up with the legal issues that
the parties have identified. These issues include whether IHS
properly declined to award the Tribe amounts it had
identified as the “tribal share” of the
Winnemucca Indian Colony (which has members in the same
general area), as well as whether IHS properly refused to
provide the Tribe with certain clinic funding derived from
“third-party reimbursements.” See
Pl.'s Reply at 6-18; Defs.' Reply at 5-11. It is
unclear how to associate these issues with the figures set
forth in particular documents in the record, or even how they
contribute to the overall amount in dispute.
To be
sure, at oral argument, both parties represented that there
is no genuine issue of fact regarding the dollar amounts at
issue, only issues of law like the ones just described.
See Oral Arg. Tr. at 5:9-21, 57:21-58:10.
Nonetheless, the Court needs to know the dollars-and-cents
impact of each such issue. The statute is clear that IHS may
reject a tribe's final offer “in part.” 25
U.S.C. § 5387(b). It further specifies that IHS may
reject “one or more . . . funding levels in
such offer.” Id. § 5387(c)(1) (emphasis
added). That is, IHS can object to different aspects of the
Tribe's proposed funding level (as it has here), and
those objections may not rise and fall together. As a result,
it is conceivable that the Court could uphold one of
IHS's grounds for rejecting the Tribe's proposed
funding level, but not another. In that event, the Court
would need to know how to calculate the dollar impact
associated with each issue so that it could fashion
appropriate relief. Even more fundamentally, the Court needs
to know that each issue it is deciding actually has
a potential dollar impact, lest the Court provide an advisory
opinion on legal issues with no practical consequence.
The
parties suggest that they may be able to clarify the record
by stipulating to facts that show the applicable funding
amount associated with each legal issue in dispute.
See Oral Arg. Tr. at 60:4-13, 61:10-17. The Court
believes that this is a helpful suggestion. However, the
Court cautions the parties that, if they submit a
stipulation, it will conclusively establish all facts it
contains for the rest of this litigation. See Christian
Legal Soc'y Chapter of Univ. of Cal., Hastings Coll. of
Law v. Martinez, 561 U.S. 661, 677 (2010). If the
parties do not wish this result, they may instead file a
statement of undisputed material facts pursuant to Local
Civil Rule 7(h). In that event, the statement of facts must
include “references to the parts of the record relied
on to support the statement.” LCvR 7(h)(1). And because
many of the financial ...