Arctic Slope Native Association, Ltd. v. Sebelius

• Decision Date: 29 September 2009
• Docket Number: No. 2009-1004.,No. 2008-1532.,No. 2008-1607.,2008-1532.,2008-1607.,2009-1004.
• Citation: 583 F.3d 785
• Parties: ARCTIC SLOPE NATIVE ASSOCIATION, LTD., Appellant, v. Kathleen SEBELIUS, Secretary of Health and Human Services, Appellee. Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Appellant, v. Kathleen Sebelius, Secretary of Health and Human Services, Appellee. Metlakatla Indian Community, Appellant, v. Kathleen Sebelius, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

583 F.3d 785

ARCTIC SLOPE NATIVE ASSOCIATION, LTD., Appellant, v.Kathleen SEBELIUS, Secretary of Health and Human Services, Appellee.

Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Appellant, v.Kathleen Sebelius, Secretary of Health and Human Services, Appellee.

Metlakatla Indian Community, Appellant, v.Kathleen Sebelius, Secretary of Health and Human Services, Appellee.

No. 2008-1532.

No. 2008-1607.

No. 2009-1004.

United States Court of Appeals, Federal Circuit.

September 29, 2009.

Lloyd B. Miller, Sonosky, Chambers, Sachse, Miller & Munson, LLP, of Anchorage, Alaska, argued for appellant in 2008-1532. With him on the brief were Hilary V. Martin; and Donald J. Simon and Arthur Lazarus, Jr., of Washington, DC.

Geoffrey D. Strommer, Hobbs, Straus, Dean & Walker, LLP, of Portland, Oregon, argued for all appellants in 2008-1607, 2009-1004. With him on the brief were Stephen D. Osborne; and Marsha K. Schmidt, of Washington, DC.

Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for appellee.With him on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director.Of counsel on the brief for 2008-1607, 2009-1004 were Jay Furtick, Assistant Regional Counsel, and Melissa Jamison, Senior Attorney, Office

of the General Counsel, United States Department of Health and Human Services, of Washington, DC.

Michael P. Gross, M.P. Gross Law Firm, P.C., of Santa Fe, New Mexico, for amicus curiae National Congress of American Indians.Of counsel on the brief was Daniel H. MacMeekin, of Washington, DC.

Before MAYER, LOURIE, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

The appellants in these three appeals are Indian tribes and tribal organizations that provide health care services to their members under contracts with the Indian Health Service ("IHS").The contracts were entered into pursuant to the Indian Self-Determination and Education Assistance Act ("ISDA"), 25 U.S.C. §§ 450-450n.The Civilian Board of Contract Appeals dismissed several of the appellants' contract claims against the IHS on the ground that the appellants had failed to present those claims to a contracting officer within six years after the claims accrued, as required by section 605(a) the Contract Disputes Act ("CDA"), 41 U.S.C. § 605(a).

Before the Board of Contract Appeals, the appellants argued that the CDA's six-year presentment period was tolled on either of two grounds.First, they argued that the statutory presentment period was subject to equitable tolling.Second, they argued that the period was legally tolled by the pendency of two class action law-suits in which they were putative class members.The Board rejected both arguments.It held that the CDA's presentment period is a jurisdictional requirement that is not subject to tolling, either equitable or legal.We hold that the six-year presentment period is subject to equitable tolling, but not class action tolling; we remand to the Board to determine whether this case satisfies the requirements of the equitable tolling doctrine.

I

The ISDA was enacted in 1975 to promote tribal autonomy by permitting Indian tribes to manage federally funded services that were previously administered by the federal government.See25 U.S.C § 450a;Cherokee Nation of Okla. v. Leavitt,543 U.S. 631, 634, 125 S.Ct. 1172, 161 L.Ed.2d 66(2005).Transfers of federal programs to tribal control under the ISDA are accomplished through "self-determination contracts" under which a tribe agrees to take over administration of a federal program such as an IHS hospital or clinic.25 U.S.C. § 450f(a).The government is required to provide self-determination contractors with the same amount of funding that would have been appropriated for the tribal programs if the government had continued to operate the programs directly.Id.§ 450j-1(a)(1).

As originally enacted, the ISDA 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.SeeThompson v. Cherokee Nation of Okla.,334 F.3d 1075, 1080(Fed.Cir.2003);S.Rep. No. 100-274, at 8-9(1987), U.S.CodeCong. & Admin.News 1988, p. 2620.To remedy that problem, Congress amended the ISDA in 1988 to require the federal government to provide funds to pay the administrative expenses of covered programs.Those expenses included "contract support costs," 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.25 U.S.C. § 450j-1(a)(2).

The 1988amendments to the ISDA made the Contract Disputes Act applicable to disputes concerning self-determination contracts.25 U.S.C. § 450m-1(d).As a result, ISDA self-determination contractors can appeal an adverse decision by a contracting officer on contract disputes to the Civilian Board of Contract Appeals, see41 U.S.C. § 606, or to the Court of Federal Claims, see41 U.S.C. § 609(a)(1).In addition, the ISDA permits contractors to bring claims in district courts, an avenue of relief that is generally unavailable to government contractors under the CDA.See25 U.S.C. § 450m-1(a).

After the 1988amendments took effect, some ISDA contractors claimed that the government was still failing to meet its obligation to fully fund the contract support costs.Those allegations resulted in the filing of several class action lawsuits, two of which are pertinent to the cases before us.In the first of those suits, the Cherokee Nation of Oklahoma filed a complaint and a request for class certification on March 5, 1999, in the United States District Court for the Eastern District of Oklahoma.The plaintiffs alleged that they had entered into contracts with the IHS to provide tribal health care services, but that the government had refused to pay the full amount of the promised support costs because Congress had failed to appropriate sufficient funds to cover those costs.The complaint sought certification of a class comprising "[a]ll Indian tribes and tribal organizations operating IHS programs under [ISDA contracts] that were not fully paid their contract support costs needs, as determined by IHS, at any time between 1988 and the present."Cherokee Nation of Okla. v. United States,199 F.R.D. 357, 360(E.D.Okla.2001).

On February 9, 2001, the district court denied class certification.The court subsequently ruled on the merits that the government was not obligated to provide contract support costs in excess of the amount appropriated by Congress for that purpose, Cherokee Nation of Okla. v. United States,190 F.Supp.2d 1248, 1259(E.D.Okla.2001), and the Tenth Circuit affirmed, Cherokee Nation of Okla. v. Thompson,311 F.3d 1054, 1063(10th Cir.2002).After this court reached the opposite conclusion in another ISDA case, Thompson v. Cherokee Nation of Okla.,334 F.3d 1075(Fed.Cir.2003), the Supreme Court granted certiorari to resolve the conflict.The Court subsequently held that the government could not avoid its contractual obligation to pay support costs to the plaintiffISDA contractors on the ground that Congress had appropriated insufficient funds specifically designed to cover those costs, and that the government had to satisfy its contractual obligations out of other unrestricted appropriated funds.Cherokee Nation of Okla. v. Leavitt,543 U.S. 631, 125 S.Ct. 1172, 161 L.Ed.2d 66(2005).

In the second lawsuit, the Pueblo of Zuni filed a class action on September 10, 2001, in the United States District Court for the District of New Mexico, similarly contending that the government had failed to pay full support costs to contractors who were providing tribal health services pursuant to ISDA contracts with the IHS.The asserted class consisted of "all tribes and tribal organizations contracting with IHS under the ISDA between the years 1993 to the present."Pueblo of Zuni v. United States,467 F.Supp.2d 1099, 1105(D.N.M.2006).That action was stayed pending the outcome of the Cherokee Nation litigation that was then on appeal to the Tenth Circuit.After the Supreme Court issued its Cherokee Nation decision, the stay in the Zuni case was lifted, and on May 22, 2007, the district court denied certification of the class.Pueblo of Zuni v. United States,243 F.R.D. 436, 453(D.N.M.2007).

II

The Arctic Slope Native Association, Ltd.("ASNA"), operates a federal hospital under an ISDA contract with the IHS.ASNA claims to have been a member of the putative class in the Zuni litigation.On September 30, 2005, after the Supreme Court's decision in the Cherokee Nation case and while the Zuni class action was still pending, ASNA filed CDA claims with an IHS contracting officer alleging that the IHS had failed to pay the full amount of the contract support costs that ANSA had incurred to operate the hospital during fiscal years 1996 through 2000.

The Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians ("Confederated Tribes") and the Metlakatla Indian Community also provide Indian health services pursuant to self-determination contracts with the IHS.They claim to have been members of the putative class in the Cherokee Nation action that was initiated in the Eastern District of Oklahoma.The Confederated Tribes filed claims with an IHS contracting officer on December 29, 2003, and September 27, 2004, seeking contract support costs for fiscal years 1995 through 1998; the Metlakatla Indian Community filed its claims with the an IHS contracting officer on June 30, 2005, seeking contract support costs for fiscal years 1995 through 1999.

The IHS contracting officers denied one claim and failed to act on the...