BRISTOL BAY AREA HEALTH CORPORATION, Plaintiff, v. The UNITED STATES, Defendant.
No. 07-725 C
United States Court of Federal Claims.
April 18, 2013
110 Fed. Cl. 251
SWEENEY, Judge
The court additionally finds that the expenses requested by the Council are reasonable as a factual matter.
CONCLUSION
For the reasons stated, the court awards plaintiff a total of $4,689.00 as its reasonable expenses in preparing the motion to compel discovery granted by the court on January 10, 2013.
It is so ORDERED.
Joseph A. Pixley, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
Before the court is defendant‘s motion to dismiss pursuant to
I. BACKGROUND
A. The Indian Self-Determination and Education Assistance Act
Congress enacted the Indian Self-Determination and Education Assistance Act,
Section 450f(a)(1) of the ISDEAA directs the Secretary of HHS (“the Secretary“), “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....”
As originally enacted, the ISDEAA did not require the government to pay the administrative costs that the tribes incurred to operate the programs. In many cases, contractors were forced to absorb those costs, thereby reducing the funds available for the tribes to provide direct services to their members. See Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1080 (Fed.Cir. 2003); S.Rep. No. 100-274, at 8-9 (1987). To remedy that problem, Congress amended the ISDEAA in 1988, to add a new section 106 that required the federal government to provide funds to pay the administrative expenses of covered programs.2 Those expenses included CSC, which are defined in the statute as costs that a federal agency would not have directly incurred, but that tribal organizations acting as contractors reasonably incur in managing the programs.
(2) There shall be added to the amount required by paragraph (1) contract support costs which shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which—
(A) normally are not carried on by the respective Secretary in his direct operation of the program; or
(B) are provided by the Secretary in support of the contracted program from resources other than those under contract.
(3)(A) The contract support costs that are eligible costs for the purposes of receiving funding under this Act shall include the costs of reimbursing each tribal contractor for reasonable and allowable costs of—
(i) direct program expenses for the operation of the Federal program that is the subject of the contract, and
(ii) any additional administrative or other expense related to the overhead incurred by the tribal contractor in connection with the operation of the Federal program, function, service, or activity pursuant to the contract, except that such funding shall not duplicate any funding provided under section 106(a)(1).
The amount of funds required by § 450j-1(a):
(1) shall not be reduced to make funding available for contract monitoring or administration by the Secretary;
(2) shall not be reduced by the Secretary in subsequent years except pursuant to—
(A) a reduction in appropriations from the previous fiscal year for the program or function to be contracted;
(B) a directive in the statement of the managers accompanying a conference report on an appropriation bill or continuing resolution;
(C) a tribal authorization;
(D) a change in the amount of pass-through funds needed under a contract; or
(E) completion of a contracted project, activity, or program.
There are three categories of CSC: (1) direct CSC, which are administrative costs of
Every self-determination contract must contain or incorporate by reference the provisions of the “model agreement” prescribed by the ISDEAA and “such other provisions as are agreed to by the parties.”
B. Bristol Bay‘s Allegations
Bristol Bay is a tribal organization that provides public health services to Alaska Natives and other eligible beneficiaries pursuant to ISDEAA agreements with IHS.4 Compl. ¶¶ 1, 8. To provide such services, Bristol Bay entered into a self-determination contract under Title I of the ISDEAA for FYs 1993 and 1994 and into a self-governance compact and AFAs under Title III of the ISDEAA for FYs 1995 through 1999 of the ISDEAA.5 Compl. ¶ 10. Bristol Bay alleges that IHS breached these agreements by underpaying it indirect CSC in FYs 1993 through 1999. Compl. ¶¶ 2, 15.
Bristol Bay states that for itself and for the vast majority of tribal contractors, the indirect CSC requirement for a given fiscal year is calculated by multiplying a negotiated indirect cost rate by the direct cost base. The direct cost base, for the purpose of calculating indirect costs, is comprised of the “Secretarial” or program amount, less capital expenditures and pass-through funds, plus direct CSC. See Def. Ex. G. Bristol Bay asserts that this is the government‘s standard method, the method contemplated by Congress when it enacted section 106, and the principal method used and recognized by the IHS‘s own policies. It also asserts that the government admitted as much in other litigation. Opp‘n 8 n.7 (citing Cherokee Nation v. Leavitt, 543 U.S. 631, 635 (2005)). Further, Bristol Bay states that IHS agreed to calculate and pay indirect CSC in accordance with Indian Self-Determination Memorandum (“ISDM“) 92-2 and Bristol Bay‘s indirect cost agreements. See, e.g., Def. Ex. E § 4(b). ISDM 92-2 provides that the amount of the indirect CSC to be paid “will be determined by applying the negotiated rate(s) to the direct cost base amount for this purpose.” Def. Ex. G § 5.B(1).
In its complaint, Bristol Bay alleges that IHS should have reprogrammed money from its lump sum appropriation to pay the differ-
C. Procedural Background
Bristol Bay filed its complaint in this court on October 12, 2007. Defendant filed its motion to dismiss pursuant to
On October 21, 2008, Bristol Bay filed a motion to stay proceedings pending a decision by the United States Court of Appeals for the Federal Circuit (“Federal Circuit“) on the issue of whether the CDA‘s statute of limitations,
On September 29, 2009, the Federal Circuit issued a decision in all three cases. Arctic Slope Native Ass‘n v. Sebelius, 583 F.3d 785 (Fed.Cir.2009). While petitions for writ of certiorari to the United States Supreme Court (“Supreme Court“) (No. 09-1172) were filed by two of the tribes, these were denied. In these cases, the tribes argued that the CDA‘s six-year presentment period was either subject to equitable tolling, or the period was legally tolled by the pendency of two
II. LEGAL STANDARDS
A. Subject Matter Jurisdiction
Whether the court possesses jurisdiction to decide the merits of a case is a threshold matter. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998); see also Matthews v. United States, 72 Fed.Cl. 274, 278 (2006) (stating that subject matter jurisdiction is “an inflexible matter that must be considered before proceeding to evaluate the merits of a case“). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties or the court sua sponte may challenge the court‘s subject matter jurisdiction at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).
The ability of the United States Court of Federal Claims (“Court of Federal Claims“) to entertain suits against the United States is limited. “The United States, as sovereign, is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). Thus, unless Congress consents to a cause of action against the United States, “there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States.” Sherwood, 312 U.S. at 587-88.
The Tucker Act confers upon the Court of Federal Claims jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
B. RCFC 12(b)(1) Motion to Dismiss
When deciding a motion to dismiss, the court assumes all factual allegations set forth in the complaint are true and draws all reasonable inferences in the plaintiff‘s favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-19 (1982); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir.2006). Because the court‘s “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion,” Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir.1999), the court analyzes defendant‘s motion under
The burden of establishing the court‘s subject matter jurisdiction resides with the party seeking to invoke it, see McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936), and a plaintiff must establish jurisdiction by a preponderance of the evidence, Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). If the defendant or the court questions jurisdiction, the plaintiff cannot rely solely on allegations in the complaint but must bring forth relevant, adequate proof to establish jurisdiction. See McNutt, 298 U.S. at 189. When ruling upon a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to decide any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir.1999); Reynolds, 846 F.2d at 747. If the court finds that it lacks subject matter jurisdiction, then it must dismiss the claim.
C. RCFC 12(b)(6) Motion to Dismiss
To survive a motion to dismiss pursuant to
D. Rules of Construction
Statutes enacted for the benefit of Indian tribes, such as the ISDEAA, must be liberally construed in their favor. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32 (1943) (agreements with tribes to be liberally construed). The ISDEAA states that “[e]ach provision of the [ISDEAA] and each provision of this [self-determination] Contract shall be liberally construed for the benefit of the Contractor....”
III. DISCUSSION
A. Defendant Argues That the Court Lacks Jurisdiction Over Plaintiff‘s Claim to Funds for FYs 1997 and 1998 Because the Statute of Limitations Has Expired
On July 17, 1996, and August 11 and 26, 1997, respectively, Bristol Bay entered into
1. Legal Tolling
In response to defendant‘s motion to dismiss, plaintiff initially argued that the government ignored the well-established rule that a class action tolls the statute of limitations as to members of the putative class. Citing precedent from the Supreme Court, plaintiff asserted that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Opp‘n 27 (quoting American Pipe & Constr. Co v. Utah, 414 U.S. 538, 554 (1974)). However, Bristol Bay conceded in its March 14, 2011 brief that the ”Arctic Slope, 583 F.3d at 785] decision forecloses the argument that Bristol Bay is entitled to mandatory legal tolling.” Opp‘n 2 at 8 n.4. Indeed, in Arctic Slope, the Federal Circuit held that “class action tolling is not available to parties ... who have not made timely presentation of their claims to a contracting officer.” 583 F.3d at 797. Like the contractors in Arctic Slope, Bristol Bay concedes that it did not file requests for a contracting officer‘s decision until 2005, and consequently, would not have been eligible for the class had it been certified. Opp‘n 2 at 8 n.4. Therefore, Bristol Bay‘s FY 1997 and 1998 claims cannot be saved by the doctrine of legal tolling.
2. Equitable Tolling
Bristol Bay, however, does continue to argue that equitable tolling saves its FY 1997 and 1998 claims from dismissal. In support of its argument, plaintiff relies on the decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), wherein the Supreme Court held that a “presumption” of equitable tolling applies to suits against the United States even though a waiver of sovereign immunity is to be strictly construed. In response, the government contends that the statute of limitations for the CDA is jurisdictional and may not be waived.
While Irwin did not involve the CDA, it remains good law, and in Irwin, the Supreme Court held that, there is a presumption in favor of tolling which can be rebutted if tolling would not be applicable in a similar suit between private parties, or if Congress did not want tolling to apply. 498 U.S. at 95-96. Moreover, the Federal Circuit in Arctic Slope, relying on Irwin, addressed the statute of limitations in
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin, 498 U.S. at 96). Courts do not grant equitable tolling in circumstances where a plaintiff “knew or should have known” of a cause of action. Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.1988); see also Japanese War Notes Claimants Ass‘n of Philippines v. United States, 373 F.2d 356, 359 (Ct.Cl.1967) (“[i]gnorance of rights which should be known is not enough“). “Mere excusable neglect is not enough to establish a basis for equitable tolling.” Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003).
Here, the factual question of whether the equitable tolling standard has been met by the circumstances of this case has not been fully briefed. However, the court notes that Bristol Bay could have submitted evidence, in the form of affidavits, to support its equitable tolling argument in order to establish jurisdiction. See Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir.1993) (“In establishing the predicate jurisdictional facts, a court is not restricted to the face of the pleading, but may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.“). Thus, had Bristol Bay supplied affidavits or other evidence to support its contentions that equitable tolling applies here, the court could have ruled on this issue. Nonetheless, given the record before the court, the court cannot determine whether Bristol Bay is entitled to equitable tolling for FYs 1997 and 1998, and therefore requires additional briefing on this issue. Thus, the court declines to dismiss Bristol Bay‘s claims for FYs 1997 and 1998 under
B. Defendant Argues that the Complaint Should be Dismissed Under RCFC 12(b)(6)
Defendant next argues that Bristol Bay‘s claims for FYs 1993 through 1999 must be dismissed for failure to state a claim under
1. The Court Can Consider Documents Other than the Complaint
In deciding whether to dismiss a complaint under
In this case, the court need not convert defendant‘s motion to dismiss into a motion for summary judgment because, in addition to the requirement of
2. Defendant Argues that Bristol Bay Is Not Entitled to Additional CSC
Defendant asserts that Bristol Bay‘s complaint must be dismissed because it seeks an additional amount of indirect CSC outside of what was specified in the contracts. Defendant contends that while the amount of indirect CSC is subject to the availability of funding for each fiscal year, the agreed amount is expressly stated in the AFA per negotiation between the parties. Bristol Bay asserts that the government is bound by both statute and contract to pay its indirect CSC, and this obligation has been confirmed by the Supreme Court and other courts. It contends that the ISDEAA requires payment of a specific amount: the “full amount.” In this case, the method agreed to by the parties was the application of the negotiated indirect cost rate. Plaintiff argues that according to the government, once the contract amounts are agreed upon, there can be no other measure of the amount owed, and these amounts, according to the government, supersede the statutory duty to pay full CSC as Congress intended. Plaintiff contends that the amounts added are justified from a government accounting perspective since the “full amount,” i.e., the indirect cost rate amount, is the contract ceiling, and intermittent installment payments are made toward that amount. This practice, plaintiff claims, is in line with the rest of AFA section 4(b), which states that more indirect cost funding will be provided incrementally, as soon as available, and that the full amount to be paid will be
In resolving the motion, the court first turns to the cases cited by the defendant. Defendant contends that Bristol Bay‘s allegation runs contrary to the Supreme Court‘s holding in Cherokee Nation, a case in which the Supreme Court mandated that an ISDEAA contract be treated as any other procurement contract, where the parties must rely on that contract‘s terms and conditions. Cherokee Nation, 543 U.S. at 643-45. Consequently, defendant claims that as a matter of law, the mere fact that the contracts were entered into pursuant to the ISDEAA does not entitle Bristol Bay to an additional amount of indirect CSC, beyond what the parties expressly agreed to in the AFAs. Further, according to defendant, the Federal Circuit in Samish Indian Nation v. United States, 419 F.3d 1355 (Fed.Cir.2005), held that there is no independent right to CSC under the ISDEAA. See id. at 1365-67.
With respect to Samish, that case is inapposite because there, plaintiff sought to collect funds for ISDEAA contracts it never had, and the Federal Circuit‘s decision turned on the fact that plaintiff did not have a self-determination contract. Id. With respect to Cherokee Nation, the Supreme Court held that the government cannot avoid its contractual and statutory duties by claiming CSC funds were not available. 543 U.S. at 637. Bristol Bay points to the ISDEAA, citing the provision that states: “[N]o contract entered into pursuant to Title I of this Act shall be construed to be a procurement contract.”
Moreover, the arguments raised by the government have been raised previously and rejected. For instance, although Menominee Indian Tribe of Wis. v. United States, 539 F.Supp.2d 152, 155 (D.D.C.2008), rev‘d on other grounds, 614 F.3d 519 (D.C.Cir.2010), is not binding, in that case, the United States District Court of the District of Columbia denied the government‘s motion to dismiss on 12(b)(6) grounds where the Tribe had alleged that the government failed to compensate it fully for indirect CSC despite contractual and statutory obligations. In Menominee, the Secretary asserted that the ISDEAA did not mandate the payment of a specific amount of indirect CSC, and only the contracts created an entitlement to indirect CSC. The court stated that the Secretary‘s view “represent[ed] a very troubling misapprehension of the statute.” Id. The court noted that the ISDEAA “mandates the payment of full indirect CSC and [the ISDEAA] itself establishes that entitlement.” Id. (emphasis in original). The court went on to state that the “Secretary is not free to negotiate hard and require the Tribe to accept less than full funding if, as seems likely, the Secretary has more money available,” and “[a]lthough the Secretary cannot disburse funds he does not have or amounts in excess of limitations set by Congress, he still has the obligation to fund indirect CSC to the greatest extent possible inasmuch as the statutory promise is full funding.” Id. The court further stated that the Secretary did “not seem to appreciate his statutory obligations to fully fund indirect CSC insofar as possible.” Id. “No information is provided to the Court concerning how the Secretary ‘fol-low[ed] as closely as possible the allocation plan Congress designed,’ ... when there were insufficient appropriations to allow full funding.” Id. (quoting Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1346 (D.C.Cir.1996)). Thus, the court denied the motion to dismiss, finding that the issue of whether the Secretary breached the self-determination contract by allegedly failing to compensate the Tribe fully for indirect CSC could not be resolved at the motion to dismiss phase. Id.
Likewise, in Council of Athabascan Tribal Governments v. United States, 693 F.Supp.2d 116 (D.D.C.2010), the district court denied the government‘s motion to dismiss that was based on the same argument—
Finally, and most recently, the Supreme Court in its decision in Salazar v. Ramah Navajo Chapter, 132 S.Ct. 2181 (2012), confirmed the full funding mandate, opining that the ISDEAA “mandates that the Secretary shall pay the full amount of contract support costs incurred by tribes in performing their contracts.” Id. at 2186 (internal quotations omitted). The Supreme Court recognized the model contract and its reference to the AFAs as a basis for the full amount of CSC, id. at 2187, and found that, “the Government‘s contractual promise to pay each tribal contractor the ‘full amount of funds to which the contractor [was] entitled,’ [
Here, Bristol Bay cites the ISDEAA and its contracts with the government as the source of authority for its claim that the Secretary had a duty to pay the full CSC and to reprogram funds if necessary to do so. To survive a motion to dismiss pursuant to
3. Defendant Argues that the Claims for FY 1995 Are Barred by Res Judicata
By way of background, on June 30, 1994, Bristol Bay and IHS negotiated and signed the Alaska Tribal Health Compact (“Compact” or “ATHC“), and an AFA (hereinafter “FY 1995 AFA“), both of which became effective on October 1, 1994. See Def.‘s Ex. H at A28-29, A31. On September 29, 1994, Bristol Bay negotiated and signed an Addendum to the FY 1995 AFA. See
The government argues that Bristol Bay‘s claim for FY 1995 for additional indirect CSC costs cannot be considered by this court on the grounds of res judicata. Bristol Bay, however, argues that its claim before the Alaska district court and the claim in this
Under the doctrine of res judicata, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep‘t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). The purpose of res judicata is “an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled between the parties.” Id. at 401. The burden of proof is on the party asserting res judicata. Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.Cir.2003) (stating that the party asserting the bar must prove all the elements of the defense). Moreover, in the context of a motion to dismiss, doubts should be resolved in favor of the nonmoving party. See Kearns v. Gen. Motors Corp., 94 F.3d 1553, 1557 (Fed.Cir.1996) (stating that “precedent weighs heavily against denying litigants a day in court unless there is a clear and persuasive basis for that denial“); Charter Federal Savings Bank v. United States, 87 Fed.Appx. 175, 178 (Fed.Cir.2004) (stating general rule that doubts are to be resolved against application of res judicata). The party moving for dismissal under res judicata must establish “that (1) the parties are identical or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of transactional facts as the first.” Ammex, 334 F.3d at 1055. Regarding the first element, as defendant notes, Bristol Bay does not dispute that the parties are identical in this suit and the Alaska district court matter.10 The other elements, however, are disputed, and the most problematic for the government is the third element.
The third element in a res judicata inquiry requires the court to determine whether Bristol Bay‘s current claim is based on the same set of transactional facts as the Alaska district court case. Defendant argues that the instant case and the prior Alaska district court case stem from the same underlying transaction because Bristol Bay‘s 1995 Alaska district court lawsuit was based upon the same agreements and the same statutes identified in Bristol Bay‘s current complaint, i.e., the FY 1995 ATHC, AFA, and accompanying Addendum, and the ISDEAA, and as a result, they “constitute the same claim for res judicata purposes.” See Phillips/May Corp. v. United States, 524 F.3d 1264, 1271-72 (Fed.Cir.2008).
Bristol Bay, however, asserts that there are clear differences between the Alaska district court suit and this suit. Bristol Bay contends that its Alaska district court case “was about the Government failing to promptly pay what was owed in the newly signed compact. Part of the funds that were not paid were tribal shares and the CSC associated with those tribal shares.”11 Opp‘n 36. The claims Bristol Bay settled with the IHS in the Settlement Agreement, it argues, only dealt with a delay in payment of CSC on tribal shares, and did not address the entire shortfall associated with other PFSAs that Bristol Bay carried out in FY 1995. The Settlement Agreement specifies that “[p]ay-ment of this amount will be made from the FY 1995 Indian Self-Determination (ISD) fund on or before September 30, 1995.” Def. Ex. I at A50. The ISD Fund covers startup costs and initial CSC for “new and expanded contracts“—that is, for PFSAs newly assumed from the IHS by a contractor. See
Defendant challenges the legal theories raised by Bristol Bay. For res judicata purposes, it contends that the fact that Bristol Bay relies on a different legal theory than it did in the Alaska district court case is without consequence. Moreover, defendant argues that Bristol Bay‘s claim that its current FY 1995 claim and the prior Alaska action are not “identical” misses the point because the relevant question is whether a plaintiff‘s second claim is based on the same set of transactional facts as the first, and here, Bristol Bay‘s current FY 1995 claim for CSC is based upon the same agreements and statutory provisions identified in the earlier complaint. Defendant also challenges Bristol Bay‘s assertion that res judicata does not apply because its current claim had not accrued when that the prior action was filed or settled, because accrual is not an element of res judicata. According to the government, Bristol Bay knew, or should have known, of a potential cause of action for claiming the “full amount of CSC” since at least 1988 when Congress amended the statute, well before Bristol Bay settled the 1995 Alaska lawsuit. Moreover, defendant argues that the 1995 complaint clearly claimed damages for the entire period of the 1995 fiscal year contracts, for all monies due under those contracts, and that the Settlement Agreement made clear that the scope of the agreement encompassed the entire period of “FY 1995.”
In deciding this dispute, the court notes that the scope of res judicata of the prior suit must be based, not on the complaint, but the terms of the Settlement Agreement. See Norfolk S. Corp., v. Chevron USA, 371 F.3d 1285, 1288 (11th Cir.2004). Case law does make clear that the parties can reserve the right to litigate a claim that would otherwise be barred by res judicata, but that reservation must be express. See, e.g., id. at 1289 (“In determining the res judicata effect of an order of dismissal based upon a settlement agreement, we should also attempt to effectuate the parties’ intent. The best evidence of that intent is, of course, the settlement agreement itself ... as interpreted according to traditional principles of contract law.“). While the Settlement Agreement does not contain an express reservation of future litigation, plaintiff points out that the terms of the agreement provide that Bristol Bay did preserve all claims not “currently before the court“: “It is the mutual desire of the Indian Health Service (IHS) and Bristol Bay Area Health Corporation to settle their differences currently before the Federal District Court....” Def. Ex. I, ¶ 1;
IV. CONCLUSION
For the reasons discussed above, defendant‘s motion to dismiss is denied. The parties shall file a joint status report no later than Thursday, May 9, 2013, in which they
IT IS SO ORDERED.
COHEN FINANCIAL SERVICES, INC., Plaintiff, v. The UNITED STATES, Defendant, and Mir Mitchell & Company, LLP, Defendant-Intervenor.
No. 13-37
United States Court of Federal Claims.
Filed under seal: March 27, 2013 *
Reissued for publication: April 4, 2013
110 Fed. Cl. 267