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MOTION TO DISMISS GRANTED AS TO CBCA 280-ISDA AND 281-ISDA
AND DENIED AS TO CBCA
181-ISDA, 279-ISDA, AND 292-ISDA: July
28, 2008
CBCA 181-ISDA, 279-ISDA, 280-ISDA, 281-ISDA, 282-ISDA
METLAKATLA INDIAN COMMUNITY,
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Geoffrey
D. Strommer of Hobbs, Straus, Dean & Walker, LLP, Portland, OR, counsel for
Appellant.
Melissa
Jamison, Office of the General Counsel, Department of Health and Human
Services, Rockville, MD, counsel for Respondent.
Before Board Judges
HYATT, DeGRAFF, and STEEL.
STEEL, Board Judge.
For
all the years at issue in these appeals, the Metlakatla Indian Community
(Metlakatla) provided health care services to its members under
self-determination contracts or compacts with the Department of Health and
Human Services (HHS) Indian Health Service (IHS), pursuant to the Indian
Self-Determination and Education Assistance Act (ISDA or Act), Pub. L. No.
93-638, codified as amended at 25 U.S.C. ''
450, et seq. (2000). Metlakatla
seeks additional amounts of indirect contract support cost (CSC) funding from
IHS under ISDA contracts and compacts in fiscal years (FYs) 1995 through
1999. IHS moves to dismiss the appeals.
Background
In
1975, Congress enacted the ISDA to encourage Indian self-government by allowing
the transfer of certain federal programs operated by the Federal Government,
including health care services programs, to tribal governments and other tribal
organizations by way of contracts. The
amount of contract funds provided to the tribes was the same as the amount IHS
would have provided if it had continued to operate the programs. This amount is known as the ASecretarial amount@ or Atribal shares.@ 25 U.S.C. '
450j-l(a). The Secretarial amount,
however, included only the funds IHS would have provided directly to operate
the programs. It did not include funds
for additional administrative costs the tribes incurred in running the
programs, but which IHS would not have incurred, such as the cost of annual
financial audits, liability insurance, personnel systems, and financial
management and procurement systems. S.
Rep. No. 100-274, at 8-9 (1987).
In
1988, Congress amended the ISDA to authorize IHS to negotiate additional
instruments, self-governance Acompacts,@ with a
selected number of tribes. Pub. L. No.
100-472, tit. II, ' 201(a), (b)(1), 102 Stat. 2288, 2289 (1988); see
25 U.S.C. ' 450f note (repealed by Pub. L. No. 106-260, ' 10, 114 Stat. 711, 734 (2000)). Under this more flexible Tribal
Self-Governance Demonstration Project, the selected tribes were given the
option of entering into either contracts or compacts[1]
with IHS to perform certain programs, functions, services, or activities
(PFSAs) which IHS had operated for Indian tribes and their members. If a tribe and IHS entered into a compact,
they also entered into annual funding agreements (AFAs).
The
1988 amendments also provided for funding for the additional administrative
costs which tribes incurred in running health services programs. The statute as amended provides that there
shall be added to the Secretarial amount contract support costs Awhich 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.@ 25 U.S.C. ' 450j-l(a)(2).
These amounts are for Acosts which normally are not carried on by the
respective Secretary in his direct operation of the program; or . . . are
provided by the Secretary in support of the contracted program from resources
other than those under contract.@ Id.
There
are three categories of CSC: start-up costs, indirect costs (IDC), and direct
costs. Start-up costs are one-time costs
necessary to plan, prepare for, and assume operation of a new or expanded PFSA,
such as the start-up costs for a new clinic.
Indirect costs are those costs incurred for a common or joint purpose,
but benefiting more than one PFSA, such as administrative and overhead
costs. Direct CSC are expenses which are
directly attributable to a certain PFSA but which are not captured in either
the Secretarial amount or indirect costs, such as workers= compensation insurance, which the Secretary would not
have incurred if the agency were operating the program. 25 U.S.C. '
450j-1(a).
The
provision of funds for CSC is Asubject to the availability of appropriations,@ notwithstanding any other provision in the ISDA, and
IHS is not required to reduce funding for one tribe to make funds available to
another tribe or tribal organization. 25
U.S.C. ' 450j‑1(b).
From
one fiscal year to the next, IHS cannot reduce the Secretarial amount and the
CSC it provides 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.
25 U.S.C. ' 450j-l(b)(2).
IHS
is required to prepare annual reports for Congress regarding the implementation
of the ISDA. Among other things, these
reports include an accounting of any deficiency in the funds needed to provide
contractors with CSC. 25 U.S.C. ' 450j-l(c). The
reports which set out the deficiencies in funds needed to provide CSC are known
as Ashortfall reports.@ Complaint & 14;
25 U.S.C. ' 450j-1(c), (d).
Each IHS Area Office, including the Alaska Area Office, prepared
shortfall reports for FYs 1995 - 1999 which were submitted to Congress. Complaint & 14;
Answer & 14.
For
FYs 1995 through 1998, Congress set aside $7.5 million of IHS=s appropriated funds into the Indian
Self-Determination (ISD) fund which were to be used for the transitional costs
of new or expanded tribal programs.
Department of the Interior and Related Agencies Appropriations Act,
1995, Pub. L. No. 103-332, tit. II, 108 Stat. 2499, 2528 (1994); Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,
110 Stat. 1321, 1321-189 (1996) ; Omnibus Consolidated Appropriations Act,
1997, Pub. L. No. 104-208, 110 Stat. 3009, 3009-12 (1996); Department of the
Interior and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-83, 111 Stat. 1543, 1582
(1997). In connection with the ISD
fund, IHS developed a policy for funding CSC for new or expanded programs. IHS established a priority list, called the Aqueue,@ and funded CSC for new or expanded programs on a
first-come, first-served basis, as determined by the date on which IHS received
a tribe=s request for funding.
See, e.g., IHS Circular No. 96-04, '
4.A(4)(a)(ii). Thus, IHS would fund the
first request it received for funding CSC for a new or expanded program, then
it would fund the next request it received, and it would continue funding CSC
requests until the ISD funds were exhausted for a fiscal year. Requests not funded during one fiscal year
moved up the queue to be paid when the next fiscal year=s funds were distributed. Appeal File, Exhibit 4-29, Indian
Self-Determination Memorandum (ISDM) 92-2 &
4-C(1), at 4.
One
of the 1988 amendments to the ISDA provided that the Contract Disputes Act (CDA) Ashall
apply to self-determination contracts.@ 25 U.S.C. '
450m-1(d). In 1994, Congress amended the
Contract Disputes Act to include a six-year time limit for presenting a claim
to the contracting officer (often an awarding official in the ISDA context):
All claims by a
contractor against the government relating to a contract shall be in writing
and shall be submitted to the contracting officer for a
decision. . . . Each
claim by a contractor against the government relating to a contract and each
claim by the government against a contractor relating to a contract shall be
submitted within 6 years after the accrual of the claim. The preceding sentence does not apply to a
claim by the government against a contractor that is based on a claim by the
contractor involving fraud.
41 U.S.C. ' 605(a).
Findings
of Fact
In
1988, Metlakatla entered into contract no. 243-88-0184 for Avarious Health and Related Services for Alaska Natives,
Annette Island Reserve.@ Appeal File,
Exhibit 2 at 3-1. For Fiscal Year 1995, effective October 1,
1994, amendment no. 54 modified the original contract and extended the period
of performance to cover the period from October 1, 1994, through September 30,
1995. Id. at 4-1.
On
April 1, 1995, Metlakatla and IHS entered into a new Self-Determination
Contract, no. 243-95-6001, together with attachment 2, the applicable AFA, to
deliver health services from April 1 to September 30, 1995. Appeal File,
Exhibits 5, 6. The AFA for FY 1996,
amendment 8 to contract 243-95-6001, was signed on September 28, 1995, with an
effective date of December 1, 1995. Id.,
Exhibit 11.
The
AAlaska Tribal Health Compact between Certain Alaska
Native Tribes and the United States of America@ (ATHC)
and related negotiated AFAs authorized thirteen Alaskan tribes to operate
health care programs. Appeal File,
Exhibit 2 at 15-l. Metlakatla joined
the ATHC for FY 1997 and the years thereafter.
Complaint & 1; Appeal File, Exhibits 15-18.
On
August 19, 1999, Metlakatla submitted a claim for unpaid CSC in the amount of
$132,878 ($44,033 in CSC funding for tribal shares and $88,845 to defray
start-up costs for a new or expanded program).
IHS denied the claim on April 17, 2000, and Metlakatla did not appeal
IHS=s decision.
Metlakatla agrees it is too late to appeal this decision. Appellant=s
Response to Respondent=s Motion to Dismiss at 10. Although the claim was submitted in FY1999,
the claim and the awarding official=s
decision say these amounts were contained in the FY 1997 AFA and repeated in
the AFAs for FY 1998 and FY 1999.
Metlakatla=s FY 1995 claim is dated June 30, 2005 and was
received by the awarding official on July 1, 2005. Appeal File, Exhibits 2 at 1, 20 at 1. The
claim was for $114,191, which is the amount listed on the shortfall report. Id.
Metlakatla=s FY 1996 claim is dated June 30, 2005, and was
received on July 1, 2005. Appeal File,
Exhibits 2 at 4, 20 at 1. The claim was for $155,632, which is the
amount listed on the shortfall report. Id.
Metlakatla=s FY 1997 claim is dated June 30, 2005, and was
received on July 1, 2005. Appeal File, Exhibit 2 at 8. The claim was for $262,116, which is $230,980
listed on the shortfall report, plus $24,230 listed in the queue and not
accounted for in the shortfall report, and $6906 in additional indirect
CSC. Id. at 4.
Metlakatla=s FY 1998 claim is dated June 30, 2005, and was
received on July 1, 2005. The claim was
for $134,767, which included funds for CSC for ongoing programs. Appeal File, Exhibits 2 at 10, 20 at 2. The amount listed on the shortfall report was
$128,396. Id.
Metlakatla=s FY 1999 claim is dated June 30, 2005, and was
received on July 1, 2005. The claim was for either $119,429, which is based
upon a contract theory of recovery which assumes the appropriation for FY 1999
is capped and which seeks to recover for a breach of statutory sections which
are incorporated in the compact, or $211,330, which is based upon a theory of
recovery which challenges the applicability of the appropriations cap and which
asks for the amount listed on the shortfall report. Appeal File, Exhibits 2 at 15, 20 at 2.
Except
for the denial of the August 19, 1999 claim, the contracting officer did not
issue decisions on these claims. They
are therefore deemed denied. 41 U.S.C. ' 605(c)(5).
Appeals were filed with the Department of the Interior Board of Contract
Appeals on May 8, 2006, and docketed as cases IBCA-4767/2006 through
IBCA-4771/2006. On January 6, 2007, the
Department of the Interior Board of Contract Appeals was merged with other
civilian agency boards into the Civilian Board of Contract Appeals (CBCA),
where the cases were docketed as described below. Pub. L. No. 109-163, ' 847, 119 Stat. 3136 (2006).
Discussion
In
their briefs, the parties make a great many arguments, all of which we carefully
considered. Due to the manner in which
we resolve the issues before us, it is not necessary for us to address each of
the arguments they raised in order to resolve the motion to dismiss. As explained below, laches does not bar
Metlakatla=s FY 1995 claim and we possess jurisdiction to
consider the FY 1996 claim. We lack
subject matter jurisdiction to consider the FY 1997 and FY 1998 claims. We possess subject matter jurisdiction to
consider the FY 1999 claim and we cannot dismiss it for failure to state a
claim upon which relief can be granted.
Therefore, we grant the motion to dismiss, in part.
FY
1995 (CBCA 181-ISDA)
The
parties agree that the claim for FY 1995
accrued on the last day of the fiscal year, which was September 30,
1995, since appellant could expect no further payments for the fiscal year
after that date. On June 30, 2005,
Metlakatla submitted this claim to the awarding official. In its motion to dismiss, IHS raises the
equitable defense of laches in response to the claim for FY 1995 CSC.[2]
In
order to persuade us to apply a laches defense, IHS must establish that
Metlakatla delayed submitting its claim for an unreasonable and inexcusable
length of time and that this delay resulted in prejudice or injury to the
Government. Aukerman Co. v. R.L.
Chaides Construction Co., 960 F.2d 1020, 1032 (Fed. Cir. 1992) (en
banc); Cornetta v. Lehman, 851
F.2d 1372, 1377-78 (Fed. Cir. 1988) (en banc); SUFI Network Services, Inc.,
ASBCA 55948, 08-1 BCA & 33,766 at 167,149; Systems Integrated, ASBCA 54439, 05-2 BCA & 32,978 at 163,380. IHS can establish the existence of undue
delay and prejudice either by establishing there is a presumption of laches or
by offering actual proof of undue delay and prejudice. Aukerman, 960 F.2d at 1036.
Relying
upon Aukerman, IHS asks us to decide that a presumption of laches exists
because Metlakatla failed to submit its claim to the awarding official within
the six-year time limit contained in section 605(a) of the CDA. In addition, IHS says Metlakatla waited an
unreasonable and inexcusable length of time to submit the claim to the
contracting officer, and says its ability to defend against Metlakatla=s claim has been prejudiced by the delay. Respondent=s Motion
to Dismiss at 16-18.
We
do not need to decide whether we should create a presumption of laches based
upon the six-year time limit contained in section 605(a) of the CDA because
even if we were to do so, we would conclude Metlakatla has eliminated the
presumption by offering proof to show its delay was excusable. Metlakatla has shown its delay was the result
of other litigation, which is one of the reasons the Court in Aukerman
recognized as justifying a delay. Aukerman,
960 F.2d at 1033, 1038.
On
March 5, 1999, the Cherokee Nation of Oklahoma filed a complaint against IHS in
the United States District Court for the Eastern District of Oklahoma. The tribe requested certification of a class
consisting of Aall Indian tribes and tribal organizations operating
Indian Health Service Programs under [the ISDA] that were not fully paid their
contract support cost needs. . . .@ Cherokee Nation of Oklahoma v. United
States, 199 F.R.D. 357, 360 (E.D. Okla. 2001) (hereinafter Cherokee
Nation of Oklahoma). Nearly two
years later, on February 9, 2001, the court denied the request for class
certification. Metlakatla asserts that
it was a putative class member in this lawsuit, and the Government has not
disputed this fact. Appellant=s Response to Respondent=s Motion
to Dismiss at 5-6. Further, Metlakatla
plausibly suggests that the basis for its FY 1995 claim was uncertain until the
Supreme Court issued its decision in Cherokee
Nation v. Leavitt, 543 U.S. 631 (2005).
Metlakatla submitted its claim to the awarding official approximately
four years after the request for class certification was denied in Cherokee
Nation of Oklahoma, and approximately two months after the Supreme Court=s decision in Cherokee Nation. The existence of this other litigation
provides Metlakatla with an excuse for its delay such as would eliminate any
presumption of laches.
After
reviewing IHS=s actual proof of unreasonable delay and prejudice, we
find it lacking. Regarding delay, the
existence of the litigation discussed in the preceding paragraph counters IHS=s proof that Metlakatla unduly delayed submitting its
claim to the awarding official.
Regarding prejudice, IHS says it has been prejudiced by witnesses
retiring from the agency and by its inability to locate relevant
documents. Respondent=s Reply to Appellant=s
Response to Motion to Dismiss at 16-17.
These statements are allegations of counsel, however, and are not
evidence. In addition, although
witnesses may have retired, this does not mean they are unavailable to
testify. Hoover v. Department of the
Navy, 957 F.2d 861, 863-64 (Fed. Cir. 1992). Moreover, the pendency of the litigation
discussed above ought to have alerted IHS to the need to preserve relevant
documents for tribes which might become class members.
IHS
has failed to persuade us that we should apply a laches defense and bar the
claim for FY 1995 CSC. Even if we were
to create a presumption of laches based upon section 605(a) of the CDA,
Metlakatla has eliminated the presumption by providing a valid excuse for its
delay. IHS=s actual
proof of unreasonable delay and prejudice is insufficient to convince us to
exercise our discretion in its favor.
Therefore, we deny the motion to dismiss the FY 1995 claim on the
grounds of laches.[3]
FY
1996 (CBCA 279-ISDA)
IHS
moves to dismiss Metlakatla=s FY 1996 claim for lack of subject matter
jurisdiction because Metlakatla failed to submit this claim to the awarding
official within six years after it accrued, as required by section 605(a) of
the CDA. Respondent=s Motion to Dismiss at 11. In resolving IHS=s motion, we assume all well-pled factual allegations
are true and find all reasonable inferences in favor of the non-moving
party. Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1965 (2007) (stating that decisions on such motions to dismiss
rest Aon the assumption that all the allegations in the
complaint are true@); Leider v. United States, 301 F.3d 1290, 1295
(Fed. Cir. 2002); Gould Inc. v. United States, 935 F.2d 1271, 1274 (Fed.
Cir. 1991); Kawa v. United States, 77 Fed. Cl. 294, 298 (2007); Barth
v. United States, 28 Fed. Cl. 512, 514 (1993).
In order to evaluate IHS=s motion, we must determine the applicability of the
six-year time limit contained in section 605(a) of the CDA. The CDA did not include the six-year time
limit until its amendment in 1994 by the Federal Acquisition Streamlining Act,
Pub. L. No. 103-355, ' 2351(a), 108 Stat. 3243, 3322 (Oct. 13, 1994). This time limit was not immediately
applicable on the date of enactment.
Instead, its applicability depended upon the promulgation of final
regulations. Id. ' 10001(b)(2), 108 Stat. at 3404; see also Motorola,
Inc. v. West, 125 F.3d 1470, 1473 (Fed. Cir. 1997). On September 18, 1995, the Office of Management
and Budget=s Office of Federal Procurement Policy (OFPP)
published amendments to the Federal Acquisition Regulation (FAR). 60 Fed. Reg. 48,224, 48,230 (Sept. 18,
1995). The regulation at 48 CFR 33.206
states that the six-year limit does not apply to contracts awarded prior to
October 1, 1995.
Because
the six-year time limit contained in section 605(a) does not apply to contracts
awarded prior to October 1, 1995, we look to see when the contract which
provided for the payment of FY 1996 CSC was awarded. The parties agree that they entered into a
contract on April 4, 1995, and that the related AFA for FY 1996 was signed on
September 28, 1995, with an effective date of October 1, 1995. Respondent=s Reply
to Appellant=s Response to Motion to Dismiss at 14-15, Appellant=s Rebuttal Brief in
Response to Respondent=s Reply on Respondent=s Motion
to Dismiss at 10-11. IHS argues that
because the effective date of the FY 1996 AFA is October 1, 1995, it is subject
to the six-year limit set out in section 605(a) of the CDA. Respondent=s Reply
to Appellant=s Response to Motion to Dismiss at 14.
IHS=s argument misses the mark because according to the
regulation which implemented section 605(a), the applicability of the six-year
time limit depends upon the award date of a contract, not a contract=s effective date. The contract which underlies this claim was
awarded on April 4, 1995, and the related AFA for FY 1996 was awarded on
September 28, 1995. Because the six-year
time limit does not apply to contracts awarded prior to October 1, 1995, the
limit does not apply, whether the relevant effective date is that of the
underlying contract or the AFA.
Therefore, we deny the motion to dismiss the FY 1996 claim for lack of
subject matter jurisdiction.
FY
1997 (CBCA 280-ISDA)
The
FY 1997 claim accrued on the last day of the fiscal year, which was
September 30, 1997. On June 30,
2005, Metlakatla submitted this claim to the awarding official. IHS moves to dismiss the FY 1997 claim for lack
of subject matter jurisdiction because Metlakatla failed to submit this claim to
the awarding official within six years after it accrued, as required by section
605(a) of the CDA. Respondent=s Motion to Dismiss at 13-14. Metlakatla contends the six-year time limit
was met, because the time limit was either equitably or legally tolled. Appellant=s
Response to Respondent=s Motion to Dismiss at 18‑31.
Tolling,
whether equitable or legal, is a concept which applies to statutes of
limitation. If a court (or a board)
possesses jurisdiction to consider a claim, the claim must be filed before the
limitations period expires or else it becomes unenforceable. A time limit for filing suit can be
suspended, in effect, based upon equitable considerations, Irwin v.
Department of Veterans Affairs, 498 U.S. 89 (1990), or based upon legal
considerations, Stone Container Corp. v. United States, 229 F.3d 1345,
1354 (Fed. Cir. 2000). If the applicable
statute is tolled for a sufficient period, the time limit for filing suit is
met.
Section
605(a) does not contain a statute of limitations which imposes a time limit for
filing suit. Rather, it imposes a time
limit which this Board=s precedent establishes is a prerequisite to our
jurisdiction. Greenlee Construction,
Inc. v. General Services Administration, CBCA 416, 07-1 BCA & 33,514; accord, Gray Personnel, Inc.,
ASBCA 54652, 06-2 BCA & 33,378; see also Pueblo of Zuni v. United States,
467 F. Supp. 2d 1099 (D.N.M. 2006). As Gray
Personnel explained:
Under the CDA,
there are two prerequisites to an appeal to the Board or to the United States
Court of Federal Claims:
Those prerequisites
are (1) that the contractor must have submitted a proper CDA claim to the
contracting officer requesting a decision, . . . [41 U.S.C.] ' 605(a), and (2) that the contracting officer must
either have issued a decision on the claim, . . . ' 609(a), or have failed to issue a final decision
within the required time period, . . . '
605(c)(5).
England v.
Sherman R. Smoot Corp., 388 F.3d 844,
852 (Fed. Cir. 2004). If a contractor
has not submitted a proper claim, the contracting officer does not have the
authority to issue a decision:
The Act . . .
denies the contracting officer the authority to issue a decision at the instance
of a contractor until a contract Aclaim@ in writing has been properly submitted to him for a
decision. ' 605(a). Absent this Aclaim@, no Adecision@ is
possible B and, hence, no basis for jurisdiction . . . .
Paragon Energy
Corp. v. United States, 645 F.2d 966,
971 (Ct. Cl. 1981). Thus, A[i]t is well established that without . . . a formal
claim and final decision by the contracting officer, there can be no appeal . .
. under the CDA. It is a jurisdictional requirement.@ Milmark Services, Inc. v. United States, 231
Ct. Cl. 954, 956 (1982).
Section 605(a) as
implemented by FAR subpart 33.2, Disputes and Appeals, is the key provision in
determining whether there is a proper or formal claim for purposes of the
CDA. See, e.g., Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc) (definition
of a claim); Transamerica Insurance Corp. v. United States, 973 F.2d
1572, 1576 (Fed. Cir. 1992) (requirement that a claim be submitted for a
decision). [The Federal Acquisition
Streamlining Act] added the six‑year requirement to this key provision,
rather than, for example, to 41 U.S.C. ''
606 or 609, establishing filing periods at the boards and the United States
Court of Federal Claims. We conclude, in
view of the placement of the six‑year provision in ' 605(a), that the requirement that a claim be
submitted within six years after its accrual, like the other requirements in
that section, is jurisdictional. Accord
Axion Corp. v. United States, 68 Fed. Cl. 468, 480 (2005).
Gray Personnel,
Inc., 06-2 BCA at 165,474-75. Cf. John R. Sand & Gravel Co. v.
United States, 128 S. Ct. 750 (2008).
Metlakatla=s failure to submit its FY 1997 claim to the awarding
official within six years after it accrued, as required by section 605(a) of
the CDA, deprived this Board of jurisdiction to consider the claim. We cannot suspend the running of the six-year
time limit any more than we could suspend the requirements, also found in section
605, that a claim must be submitted to the contracting officer, that a claim
must be submitted in writing, and that a claim in excess of $100,000 must be
certified. In the absence of a claim
which meets all the requirements of section 605, we lack jurisdiction to
consider an appeal.
We
grant the motion to dismiss the FY 1997 claim for lack of subject matter
jurisdiction because Metlakatla failed to submit this claim to the awarding
official within six years after it accrued, as required by section 605(a) of
the CDA.[4]
FY
1998 (CBCA 281-ISDA)
The
FY 1998 claim accrued on the last day of the fiscal year, which was
September 30, 1998. On June 30,
2005, Metlakatla submitted this claim to the awarding official. For the same reason we grant the motion to
dismiss the FY 1997 claim, we grant the motion to dismiss the FY 1998 claim. We lack subject matter jurisdiction because
Metlakatla failed to submit this claim to the awarding official within six
years after it accrued, as required by section 605(a) of the CDA.
FY
1999 (CBCA 282-ISDA)
The
FY 1999 claim accrued on the last day of the fiscal year, which was
September 30, 1999. On June 30,
2005, Metlakatla submitted this claim to the awarding official. We have jurisdiction to consider this claim
because Metlakatla submitted it to the awarding official within six years after
it accrued, as required by section 605(a) of the CDA. IHS argues that Metlakatla fails to state a
claim upon which relief can be granted because in FY 1999, Congress limited the
amount of money which IHS had available to fund CSC.
We
agree with IHS that Congress restricted the funds available for CSC in FY 1999.
The requirement to fund CSC is subject to the availability of appropriations,
notwithstanding any other provisions of the ISDA. 25 U.S.C. '
450j-1(b). Congress restricted IHS=s FY 1999 appropriation when it provided Anot to exceed $203,781,000 shall be for payments to
tribes and tribal organizations for contract or grant support costs . . . .@ Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No.
105-277, ' 328, 112 Stat. 2681, 2681-337 (1998). No separate amount was designated for the
Indian Self-Determination Fund for initial and expanded programs. Id.
The
fact that funds for CSC were restricted in FY 1999 does not, however, mean that
Metlakatla has failed to state a claim upon which relief can be granted. If providing Metlakatla with additional
funding for CSC would have caused IHS to expend more than $203,781,000 for CSC
in FY 1999, Metlakatla had no statutory or contractual right to such additional
funding and its claim for additional funding would not be one upon which we
could grant relief. Greenlee County,
Arizona v. United States, 487 F.3d 871 (Fed. Cir. 2007); Babbitt v.
Oglala Sioux Tribal Public Safety Department, 194 F.3d 1374 (Fed. Cir.
1999); Ramah Navajo School Board,
Inc. v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996). If, however, IHS could have provided Metlakatla
with additional funding for CSC without expending more than $203,781,000 for
CSC in FY 1999, Metlakatla might be able to establish it had a statutory or
contractual right to such funding up to the amount of the unexpended funds, in
which case its claim would be one upon which we could grant relief. We do not know how much of the $203,781,000
IHS expended during FY 1999.
Because
we do not know whether providing Metlakatla with additional funding for CSC
would have caused IHS to expend more than $203,781,000 for CSC for FY 1999, we
deny the motion to dismiss the FY 1999 claim for failure to state a claim upon
which relief can be granted.
Decision
The
motion to dismiss is GRANTED as to CBCA 280-ISDA and 281-ISDA. The motion to dismiss is DENIED as to
CBCA 181-ISDA, 279-ISDA, and 282-ISDA.
__________________________
CANDIDA
S. STEEL
Board
Judge
We concur:
______________________________ ___________________________
CATHERINE B. HYATT MARTHA H. DeGRAFF
Board Judge Board
Judge
[1] For
the purposes of this decision, there are no significant differences between
contracts and compacts.
[2] Usually,
the equitable defense of laches is resolved upon motion for summary judgment or
relief or, where there are genuine facts in dispute, following trial. A.C. Aukerman Co. v. R. L. Chaides
Construction Co., 960 F.2d 1020 (Fed. Cir. 1992) (en banc), Houston Ship Repair, Inc. v. U.S.
Department of Transportation, DOT BCA 4505, 06-2 BCA & 33,381; 2160 Partners v. General Services
Administration, GSBCA 15973, 03-2 BCA & 32,269. However, IHS raised the issue in its motion
to dismiss, and we address it here.
[3] But
see Menominee Indian Tribe of Wisconsin v. United States, No. 1:07cv-00812 (D.D.C. Mar. 24, 2008), reconsideration
denied (Apr. 30, 2008), in which the district court dismissed the Menominee
Indian Tribe=s CSC claim for FY 1995 on the grounds that the claim
was barred by laches. The Board is not
bound by this decision and we reach a contrary conclusion after considering the
arguments raised and facts presented to us.
[4] If we
had jurisdiction to consider the FY 1997 claim, it would not extend to any
amounts included in the claim dated August 19, 1999, because IHS denied this
claim on April 17, 2000, and IHS=s
decision became final when Metlakatla did not appeal.