Southern Ute Indian Tribe v. Sebelius
657 F.3d 1071
10th Cir.2011Background
- ISDA requires the Secretary to enter a self-determination contract with tribes upon request, subject to statutory grounds for declination and to funding availability.
- CSCs are funding to cover the reasonable costs of contract administration; ISDA provides that CSCs are separate from the secretarial funds and are subject to appropriations.
- Tribe submitted a contract proposal to operate the Southern Ute Health Center; HHS declined, claiming lack of CSC funds and proposing language waiving immediate CSC payment.
- District court ruled HHS must contract and could not condition approval on CSC language or on funding availability; court later addressed start date and CSC language on remand.
- Contract ultimately executed with a start date of October 1, 2009 and a CSC amount to be funded from a shortfall list when funds become available; the parties reserved rights to appeal.
- This appeal concerns whether HHS could decline to contract, the propriety of CSC payment language, and the contract start date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HHS could decline to contract under ISDA | Southern Utel relied on ISDA grounds to compel contract. | HHS argued § 450f(a)(2)(D) allows declination due to funding level. | HHS cannot decline based on available CSC funding; district court correct. |
| Whether CSC funding language violating ISDA is permissible | Tribe must receive full CSC funding with model agreement caveat only subject to appropriation. | HHS sought language waiving immediate CSC payments due to shortfalls. | Tribe cannot be required to waive CSC funding; full CSC amount must be provided with 'subject to availability' caveat. |
| Start date of the contract | October 1, 2005 start date should apply by operation of law. | Contract starts when the Tribe begins operating the Clinic, i.e., October 1, 2009. | Start date is October 1, 2009. |
Key Cases Cited
- Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631 (Supreme Court 2005) (ISDA before appropriations; availability language discussed)
- Ramah Navajo Chapter v. Salazar, 644 F.3d 1054 (10th Cir. 2011) (court statements on ISDA purpose and pre-appropriation contracting)
- Cheyenne River Sioux Tribe v. Kempthorne, 496 F. Supp. 2d 1059 (D.S.D. 2007) (deemed start date and failure to fund contracts context)
- Toomer v. City Cab, 443 F.3d 1191 (10th Cir. 2006) (summary judgment standard / construction of ISDA)