Navajo Nation v. Dep't of the Interior

• Decision Date: 30 March 2016
• Docket Number: Civil Action No. 14-cv-1909 (TSC)
• Citation: 174 F.Supp.3d 161
• Parties: Navajo Nation, Plaintiff, v. Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

174 F.Supp.3d 161

Navajo Nation, Plaintiff,
v.
Department of the Interior, et al., Defendants.

Civil Action No. 14-cv-1909 (TSC)

United States District Court, District of Columbia.

Signed March 30, 2016

174 F.Supp.3d 163

Paul E. Frye, Frye Law Firm, PC, Albuquerque, NM, Philip Merle Baker-Shenk, Holland & Knight, LLP, Washington, DC, for Plaintiff.

Elizabeth Lanier Kade, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff Navajo Nation (the “Nation”) alleges that the Bureau of Indian Affairs (“BIA”), an agency within the United States Department of the Interior (“DOI”), violated the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq. (the “ISDEAA”), by failing to disperse calendar year (“CY”) 2014 funding to the Nation according to the Nation's proposed CY 2014 annual funding agreement (the “Proposal”). Specifically, the Nation contends that DOI Secretary Sally Jewell (the “Secretary”) failed to approve or decline the Proposal within the statutorily-mandated 90-day window for doing so and that, as a result, the Proposal must be deemed approved as a matter of law.¹

The parties have each moved for summary judgment. Upon consideration of the parties' motions and supporting briefs, and for the reasons set forth below, the Nation's motion for summary judgment is hereby DENIED , and DOI's cross-motion for summary judgment is hereby GRANTED .

I. BACKGROUND

Congress enacted the ISDEAA in 1975 to help Indian tribes assume responsibility for government programs that benefit their members. Under the ISDEAA, federally recognized Indian tribes may enter into what are termed “self-determination contracts” with federal agencies. These self-determination contracts enable Indian tribes to take control of a variety of federally funded programs that would otherwise be administered on their behalf by the federal government. See generally 25 U.S.C. § 450f.

After a tribe and an agency, such as DOI, memorialize this transfer of authority in a self-determination contract, they negotiate annual funding agreements, which become part of the contract once they are approved by the agency's secretary. When a tribe submits a proposed annual funding agreement to DOI, “the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification” to the tribe that one of five statutory reasons for rejection applies. Id. § 450f(a)(2).² “[T]he Secretary may extend or otherwise alter the 90-day period ... if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe” to do so. Id. “A proposal that is not declined within 90 days (or within any agreed extension [ ] ) is deemed approved.” 25 C.F.R. § 900.18.

The Nation is a federally recognized Indian Tribe with its seat of government at Window Rock, Arizona. In 2012, the Secretary

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and the Nation entered into a self-determination contract under the ISDEAA whereby the federal government would fund the Nation's judicial operations for five years — from January 1, 2012 through December 31, 2016 (the “Contract”). (See Compl. Ex. A). The Contract requires the parties to negotiate a separate funding agreement for each calendar year that it covers. (See id. ).

Due to a lapse in congressional appropriations during the 2013 government shutdown, BIA was unable to operate normally between October 1 and October 16, 2013. (See Compl. Ex. I). On October 4, 2013, Ronald Duncan, a contract analyst for the Nation, hand-delivered the Proposal to Raymond Slim at the receptionist's desk of the Self-Determination Office in BIA's Navajo Regional Office. (See Compl. Ex. C ¶¶ 8-11; Defs.' Cross-Mot. Ex. B ¶ 11). BIA has consistently taken the position that Slim, as an exempt employee whose salary was funded by non-lapsing multi-year appropriations for road construction contracts, was only authorized to receive and work on road construction contracts during the government shutdown, not self-determination contracts and their associated funding agreement proposals. (See Compl. Ex. I; Defs.' Cross-Mot. Ex. B ¶ 10). Notably, Duncan admits that he knew that he was delivering the Proposal during a government shutdown. (See Compl. Ex. C ¶ 8).

Upon receiving the Proposal, Slim marked it for intra-office mail delivery to Jeannette Quintero, the BIA official “responsible for making award and declination decisions for Navajo Nation contracts” under the ISDEAA. (Defs.' Cross-Mot. Ex. B ¶¶ 1, 11).³ Due to the lapse in appropriations, however, Quintero was furloughed during the shutdown, as were all of the other employees in the Regional Office other than Slim, and there was no intra-office mail delivery, which meant that the Proposal was not delivered to Quintero until October 17, 2013, when normal governmental operations — including intra-office mail delivery — resumed. (Id. ¶¶ 10-11).

On October 21, 2013 — two business days after normal governmental operations resumed — BIA sent a letter to the Nation acknowledging its receipt of the Proposal. (See Compl. Ex. D). The letter stated that, due to the government shutdown, “which included mail delivery to [its] office,” BIA considered the Proposal to have been received on October 17, 2013. (Id. ).⁴ The letter also explicitly stated that BIA had until “90 days after October 17, 2013 to approve, decline, or award the [P]roposal,” and that this “90-day period will end on January 15, 2014.” (Id. ) (emphasis in original). Lastly, the letter directed the Nation to contact Quintero or her colleague Frances Price if it had any questions. (See id. ). The Nation did not respond to this letter.

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On November 7, 2013, BIA sent another letter to the Nation, this time identifying substantial changes between the Proposal and the CY 2013 annual funding agreement, including the fact that the Nation's requested budget amount had increased by over $15 million, from about $1.3 million in CY 2013 to over $17 million in CY 2014. (See Defs.' Cross-Mot. Ex. D). The letter requested that the Nation respond to BIA's concerns by November 29, 2013 so that BIA could complete its review of the Proposal, and stated that BIA would “hold the approval” of the Proposal until the Nation submitted certain documents. (Id. ). The letter also directed the Nation to contact Quintero, Price or their colleague Daniel Largo, Jr. if it had any questions. (See id. ). As with the October 21 letter, the Nation did not respond to the November 7 letter.

If the Proposal was properly considered “received” on October 4, 2013 (and not on October 17, as BIA stated in its October 21 letter), then the 90-day window for the Secretary to act on it closed on January 2, 2014 (and not on January 15, as BIA stated in its October 21 letter). But January 2 came and went without BIA approving or declining the Proposal, or sending any further communications to the Nation aside from its unanswered October 21 and November 7 letters.

On January 9, 2014, BIA sent a letter to the Nation requesting a 45-day extension to the 90-day window — which, per the October 21 letter, BIA understood to be closing six days later, on January 15, 2014. (See Compl. Ex. E). BIA stated that it was requesting the extension so that the Nation could have additional time to respond to the issues raised in BIA's November 7 letter. (See id. ). Again, the letter directed the Nation to contact Quintero, Price or Largo if it had any questions. (See id. ). As with BIA's October 21 and November 7 letters, the Nation did not respond to the January 9 letter.

On January 15, 2014 — the last day of the 90-day window that BIA had established in its October 21 letter — BIA sent the Nation a letter partially declining the Proposal. (See Compl. Ex. F). BIA authorized approximately $1.3 million in funding, which was in line with the Nation's CY 2013 budget, but was only about one-thirteenth of the approximately $17 million that the Nation had requested for CY 2014. (See id. ). According to Quintero's declaration, the reasoning behind BIA's partial declination did not change between its November 7 letter and its January 15 letter, such that the agency could have issued the partial declination any time after November 7, 2013. (Defs.' Cross-Mot. Ex. B ¶ 19). Quintero further explains that, had the Nation notified BIA of its position regarding the date the Proposal was received and the resulting deadline, the agency would have issued its partial declination on that deadline — January 2, 2014 — in order to give the Nation the maximum amount of time to respond to the concerns it had raised in its November 7 letter without triggering 25 U.S.C. § 450f(a)(2). (See id. ¶ 22; cf. Compl. Ex. F).

On January 27, 2014, the Nation sent BIA a letter asserting that the 90-day review window had actually closed on January 2, 2014 — i.e. , 90 days after the Nation delivered the Proposal to the Regional Office on October 4, 2013, in the middle of the government shutdown. (See Compl. Ex. G). The letter stated that BIA's partial declination thirteen days later on January 15, 2014 was therefore untimely, and that the Proposal was automatically deemed approved as a...