Yankton Sioux Tribe v. U.S. Dept. of Hhs

• Citation: 533 F.3d 634
• Decision Date: 07 July 2008
• Docket Number: No. 07-3096.,07-3096.
• Parties: YANKTON SIOUX TRIBE, a federally-recognized tribe of Indians, and its individual members; Glenn Drapeau, an individual member of the Yankton Sioux Tribe, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; United States Indian Health Service; Michael Leavitt, in his capacity as the United States Secretary of Health and Human Services, or his successor in office; Charles Grim, in his capacity as the Director of the United States Indian Health Service, or his successor in office; Donald Lee, in his capacity as Aberdeen Area Director of the United States Indian Health Service, or his successor or predecessor in office; Earl Cournoyer, in his capacity as the Wagner Service Unit Director of the United States Indian Health Service; John Doe, whose true name is unknown, in his or her official capacity, or his successor in office; Jane Doe, whose true name is unknown, in his or her official capacity, or her successor in office, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

533 F.3d 634

YANKTON SIOUX TRIBE, a federally-recognized tribe of Indians, and its individual members; Glenn Drapeau, an individual member of the Yankton Sioux Tribe, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; United States Indian Health Service; Michael Leavitt, in his capacity as the United States Secretary of Health and Human Services, or his successor in office; Charles Grim, in his capacity as the Director of the United States Indian Health Service, or his successor in office; Donald Lee, in his capacity as Aberdeen Area Director of the United States Indian Health Service, or his successor or predecessor in office; Earl Cournoyer, in his capacity as the Wagner Service Unit Director of the United States Indian Health Service; John Doe, whose true name is unknown, in his or her official capacity, or his successor in office; Jane Doe, whose true name is unknown, in his or her official capacity, or her successor in office, Defendants-Appellees.

No. 07-3096.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2008.

Filed: July 7, 2008.

Rebecca L. Kidder, argued, Charles Abourezk, on the brief, Rapid City, SD, for appellant.

Diana Jo Ryan, AUSA, argued, Marty J. Jackley, USA, on the brief, Sioux Falls, SD, for appellee.

Before WOLLMAN, MURPHY, and SMITH Circuit Judges.

MURPHY, Circuit Judge.

The Yankton Sioux Tribe on behalf of its members and individual member Glenn Drapeau (collectively "the Tribe") brought this action to challenge the decision of the United States Indian Health Service (IHS) to close an emergency room at the Wagner IHS Health Care Facility (Wagner emergency room) and to convert it to an urgent care facility. IHS and the other defendants¹ moved to dismiss the Tribe's claims on the grounds of res judicata and for failure to state a claim. The district court² granted the motion, and the Tribe appeals. We affirm.

I.

In the early 1990s IHS made the decision to close the Wagner emergency room in Wagner, South Dakota and to open an urgent care facility in its place as part of a broader effort to provide more cost effective health care to the tribal community. One significant effect of the plan was that while the Wagner emergency room was open 24 hours every day of the week, the urgent care facility would be open only from 7 a.m. to 11 p.m. and would be closed on Sundays and federal holidays. Ambulances and patients requiring emergency services not available at the urgent care facility would be referred directly to Wagner Community Memorial Hospital located a half mile from the Wagner IHS facility or to Sacred Heart Hospital in Yankton which is fifty six miles away.

In 1994 the Tribe and another individual member, Joyce Golus, sought judicial review under the Administrative Procedure Act of the decision of the IHS to close the Wagner emergency room, also raising Fifth Amendment due process and equal protection claims. See Yankton Sioux Tribe v. United States Dep't of Health & Human Servs., CIV 94-4073 (D.S.D.) (Yankton I). Following a bench trial the district court granted the Tribe a declaratory judgment that the defendants had not satisfied the requirements of 25 U.S.C. § 1631(b)(1) when making the decision to close the Wagner emergency room.

Section 1631(b)(1) governs the process by which the government decides to close IHS health care facilities. The government may not close an IHS facility until it has submitted an impact report to Congress at least one year before the proposed closure date. The report must examine various factors including accessibility and quality of alternative health care after the closure, cost effectiveness of the proposed closure, availability of funds to maintain existing levels of service, views of the tribes served by the facility, degree of use by the Indian population of the existing facility, and the distance between the facility proposed to be closed and the nearest alternative facility. See § 1631(b)(1)(A)-(G).

The district court issued a writ of mandamus directing defendants to comply with the statute's requirements and permanently enjoined IHS from closing the Wagner emergency room until Congress either took final action on the impact report or one year lapsed from the date of its submission. See Yankton Sioux Tribe v. United States Dep't of Health and Human Servs., 869 F.Supp. 760, 767 (D.S.D.1994). The Tribe and Golus agreed that the district court need not rule on their constitutional claims because they had received all of their requested relief. An appeal of the district court's decision was filed but was dismissed based on a stipulation of the parties.

In August 2003 the defendants in Yankton I moved to dissolve the permanent injunction. An impact report had been submitted to Congress in 1997 in accordance with § 1631(b)(1), but one year had passed without Congress acting on it. The Tribe opposed the motion, arguing that the defendants had not consulted with it regarding the emergency room closure as required by § 1631(b)(1)(E). Section 1631(b)(1)(E) requires an impact report to include "the views of the Indian tribes served by such hospital or facility." The district court concluded that the statute does not require a particular type of consultation with tribes, but only that the impact report include the "views of the Indian tribes." The defendants had conducted meetings with the Tribe to solicit its views and incorporated the minutes of those meetings into the impact report.³ After determining that the impact report submitted to Congress satisfied § 1631(b)(1)(E) and that the defendants had complied with the mandates of the permanent injunction, the district court dissolved the injunction. See Yankton I, CIV 94-4073 (Memorandum Opinion and Order, Doc. 92 (D.S.D. March 23, 2004)). Neither the Tribe nor Golus appealed this order.

While the district court was considering the motion to dissolve the permanent injunction, the Tribe asked the court to rule on the constitutional claims initially raised by their suit but not resolved before the issuance of the permanent injunction. The district court pointed out that the case was closed and that it did not have continuing jurisdiction. See id. The Tribe did not attempt an appeal from this ruling.

After the district court dissolved the permanent injunction, the Department of Health and Human Services (HHS) issued a new tribal consultation policy in January 2005 to "ensur[e] that access to critical health and human services is maximized [by federally recognized tribes and HHS engaging in] open, continuous, and meaningful consultation." The policy expressly states that "[n]othing in the Policy creates a right of action against the Department [HHS] for failure to comply with this policy."

In 2005 IHS commissioned a report by Sharpless Inc. Health Care Management Consulting (Sharpless) to conduct a final evaluation of the Wagner facility. The Sharpless report recognized there would be significant hardships to tribal members if the emergency room were closed, but nevertheless recommended partial closure of the Wagner emergency room by replacement with an urgent care facility. The report noted that "it could be forecasted that lives would certainly be lost" if the Wagner emergency room closed.

After the district court dissolved the permanent injunction in Yankton I, several proposed deadlines for closure of the Wagner emergency room passed without the facility being closed. On January 30, 2006 the Tribe and Drapeau filed an action seeking a temporary restraining order and injunctive relief to prevent the closure. See Yankton Sioux Tribe v. United States Dep't of Health and Human Servs., CIV 06-4022 (D.S.D.). That action was dismissed without prejudice after HHS informed the Tribe that the emergency room would remain open until the end of the fiscal year.

On September 28, 2006, two days before the Wagner emergency room was scheduled to close, appellants filed this action seeking mandamus, injunctive, and declaratory relief. They argued that the government failed to notify Congress of the impact of the closure of the Wagner emergency room as required by 25 U.S.C. § 1631(b)(1); failed to consult meaningfully with the Tribe as required by statute and the tribal consultation policy; violated the appellants' Fifth Amendment due process rights by failing to notify them of the closure or to give them an opportunity to be heard; improperly used the Tribe's IHS health care funds to pay for another tribe's health care; and violated the trust responsibility of the federal government to tribal members.

The district court dismissed with prejudice all of appellants' claims as either barred by res judicata or for failure to state a claim. It held that res judicata barred the due process and lack of consultation claims, as well as their claim that the government failed to follow § 1631(b)(1) requirements, including the allegation that defendants were required by the statute to submit a new report every budget cycle.⁴ The remaining allegations were dismissed for failure to state a claim, including the contention that defendants failed to consult as required by HHS's new tribal consultation policy, that defendants improperly used funds dedicated to the Wagner service unit for the benefit of another tribe, and that defendants violated their federal trust responsibility. See Yankton Sioux Tribe v. United States Dep't of Health and Human Servs., 496 F.Supp.2d 1044 (D.S.D.2007) (Yankton II). This appeal followed.

On appeal the Tribe and Drapeau argue that the district court erred in dismissing their claims. They contend that res judicata does not bar their claims because the decision to close the Wagner emergency did not comply with federal law, the continuing claims doctrine protects their claims from the effects of res judicata, and their constitutional claims arise from new violations of their rights to due process. As to the claims dismissed under Federal...