UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY,

Plaintiff, No. 18-cv-02360 (DLF) v.

ROBERT F. KENNEDY, JR., et al.,

Defendants.

MEMORANDUM OPINION

Salt River Pima-Maricopa Indian Community brings this action against the Secretary of

Health and Human Services and the Acting Director of the Indian Health Service (IHS), seeking

declaratory and injunctive relief. Salt River alleges that IHS failed to pay funds owed for Salt

River’s operation of certain health care programs at the Salt River Health Clinic, in violation of

the Indian Self-Determination and Education Assistance Act (ISDEAA), see

et

seq. Before the Court is the plaintiff’s motion for summary judgment, Pl.’s Mot., Dkt. 71, and the

defendants’ cross motion for summary judgment, Defs.’ Mot., Dkt. 74. For the reasons that follow,

the Court will grant in part and deny in part the parties’ motions.

I. BACKGROUND

A. Statutory Background

The ISDEAA authorizes federally recognized Indian tribes to operate certain programs and

services that would otherwise be provided by the federal government through IHS, for the benefit

of tribal members. See

et seq; Menominee Indian Tribe of Wis. v. United States,

(2016). Among the programs operated by IHS are health care programs

authorized under the Snyder Act,

, and the Indian Health Care Improvement Act

1 (IHCIA),

et seq. Tribes may enter self-determination contracts—or Title I

contracts—with IHS to assume responsibility for such programs.

§§ 5321–31. Tribes that

meet additional financial management standards may enter into self-governance compacts—or

Title V compacts—to administer programs with greater operational flexibility. Id. §§ 5381–99.

Tribes entering into ISDEAA agreements receive funding from IHS to operate the

transferred programs.

First, tribes receive the funding amount that IHS “would have otherwise provided for the

operation of the programs or portions thereof for the period covered by the contract.” Id.

§ 5325(a)(1). That funding is termed the “secretarial amount.” Salazar v. Ramah Navajo Chapter,

(2012). If a program administered by IHS benefits multiple tribes, one tribe

may assume responsibility for the portion of the program benefiting its members, and the amount

owed following transfer are the “tribal shares.”

(b)(1).

Second, IHS must provide funding for “contract support costs.”

§ 5325(a)(2). These

are “reasonable costs” borne by the tribe that would not be incurred if the federal government

directly operated the program, id. § 5325(a)(2)(A), or costs funded by “resources other than”

program-specific appropriations, id. § 5325(a)(2)(B). Contract support costs may include:

one-time startup costs for assuming the operation of a program; direct costs attributable to a

specific program such as state workers’ compensation fund payments; or indirect costs such as

administrative or overhead costs attributable to multiple or jointly-operated programs. See id.

§ 5325(a)(2)–(3); Cherokee Nation of Okla. v. Leavitt,

(2005). IHS’s Indian

Health Manual (IHM) sets forth various methodologies for calculating contract support costs,

which are often incorporated by reference in ISDEAA contracts. See IHM § 6-3.2E, Dkt. 18-1.

2 Contracting tribes also receive “third-party revenues”—that is, revenues from sources

other than IHS, to operate the transferred benefit programs. For example, the IHCIA authorizes

tribes to collect revenues from private insurers, tortfeasors, worker compensation funds, and

Medicare and Medicaid programs, in connection with transferred benefit programs. See 25 U.S.C.

§§ 1621e, 1641. Third-party revenues such as those obtained under the IHCIA are not included in

the secretarial amount owed by IHS. Fort McDermitt Paiute & Shoshone Tribe v. Becerra,

(D.C. Cir. 2021). The ISDEAA recognizes that third-party revenues do not reduce the

amount that IHS owes under a Title I contract or Title VI compact.

§ 5325(m)(2); id. § 5388(j)

(“[Supplemental] funds shall not result in any offset or reduction in the amount of funds the Indian

tribe is authorized to receive under its [Title V] funding agreement.”).

The ISDEAA sets forth a process for negotiating the terms and funding amounts in a Title

V compact. If the tribe and the agency are unable to agree on terms, the tribe may submit a “final

offer” for the compact to the agency. Id. § 5387(b). IHS may reject a Title V final offer only if

the agency provides a “timely written notification” of rejection, id. § 5387(c)(1)(A), based on one

of four statutory criteria, including that “the amount of funds proposed in the final offer exceeds

the applicable funding level to which the Indian tribe is entitled under [the ISDEAA],” id.

§ 5387(c)(1)(A)(i). The tribe may enter into the agreed-upon portions of the compact while

retaining the right to appeal the rejected portions in federal court. Id. §§ 5387(c)(1)(D)–(2).

B. Factual and Procedural Background

Salt River is a federally recognized tribe located in Maricopa County, Arizona. See Defs.’

SOF ¶ 4, Dkt. 77-1. In that region, IHS oversees the Phoenix Area Indian Health Service, and its

component Phoenix Service Unit, which are administrative entities through which the agency

provides direct, non-specialty medical services to tribal members. Id. ¶¶ 1–2. The Phoenix Indian

Medical Center (PIMC) is a physical facility serving as the primary care facility for multiple tribes, 3 including Salt River, covered by the Phoenix Service Unit. Id. ¶ 2. PIMC also serves as the

regional referral unit for secondary specialty inpatient and outpatient services for Phoenix and

other Service Units. Id.

Salt River operates the Salt River Health Clinic, at which the tribe previously provided care

programs under a Title I ISDEAA contract. Id. ¶ 4. On October 29, 2014, Salt River sent a letter

of intent to enter into a Title V compact, to continue to operate and to take over additional programs

provided at the Clinic. Id. ¶ 5. The letter also sought to take over Salt River’s tribal shares of non-

specialty healthcare services and administrative functions provided through the Phoenix Service

Unit. AR 67–68, Dkt. 18-1.

Following negotiations, Salt River and IHS were unable to reach a final agreement on the

proposed Title V compact. On August 4, 2017, Salt River sent a final offer to IHS identifying

several unresolved funding issues. AR 71–137. On September 5, the agency responded to and

declined in part portions of the final offer, including the funding terms for (1) certain third-party

revenues, AR 144; (2) costs related to the tribal shares for the Phoenix Service Unit, AR 145–46;

and (3) contract support costs for those tribal shares, AR 146–48. The parties entered into a Title

V compact on the consensus portions of the compact. AR 1–65.

Salt River filed this action on October 11, 2018, to litigate the unresolved funding terms.

Compl., Dkt. 1. The operative complaint asserts three claims for costs: (I) $3,697,957 in third-

party revenues that IHS allegedly collected from Medicare, Medicaid, and private insurers to fund

programs at the Salt River Health Clinic; (II) $918,390 for Salt River’s tribal shares of services

provided by the Phoenix Service Unit and PIMC; (III) $159,800 in contract support costs for the

tribal shares sought in Count II. Sec. Am. Compl., ¶¶ 37–41, 44–47, 53. Salt River moved for

4 summary judgment, seeking an order requiring IHS to include those amounts in its compact. Pl.’s

Mot., Dkt. 71. The agency cross-moved for summary judgment. Defs.’ Mot., Dkt. 74.

II. LEGAL STANDARDS

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

if the moving party “shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty

Lobby Inc.,

, 247–48 (1986). A “material” fact is one that could affect the outcome

of the lawsuit. See Liberty Lobby,

; Holcomb v. Powell,

(D.C.

Cir. 2006). A dispute is “genuine” if a reasonable jury could determine that the evidence warrants

a verdict for the nonmoving party. See Liberty Lobby,

; Holcomb,

.

In reviewing the record, the court “must draw all reasonable inferences in favor of the nonmoving

party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson

Plumbing Prods.,

(2000) (citation modified). A party opposing summary

judgment must “substantiate [its allegations] with evidence” that “a reasonable jury could credit

in support of each essential element of [its] claims.” Grimes v. District of Columbia,

(D.C. Cir. 2015) (citation modified).

Courts in this district review de novo questions of legal interpretation under the ISDEAA.

E.g., Jamestown S’Klallam Tribe v. Azar,

, 87 (D.D.C. 2020); Pyramid Lake

Paiute Tribe v. Burwell,

, 541–42 (D.D.C. 2014). The Act provides, however,

that each provision of the statute or compact “agreement shall be liberally construed for the benefit

of the Indian tribe[,] . . . and any ambiguity shall be resolved in favor of the Indian tribe.”

(f); see

(b)(11) (agency regulations providing the same). As for

factual disputes, the ISDEAA provides that the agency “shall have the burden of demonstrating by

5 clear and convincing evidence the validity of the grounds for rejecting” a tribe’s final offer of a

Title V compact.

(d); see Red Lake Band of Chippewa Indians v. HHS,

, 59 (D.D.C. 2024) (citation modified). A court’s review under the ISDEAA is not

limited to the administrative record. Fort McDermitt Paiute & Shoshone Tribe v. Price,

No. 17-cv-837 (TJK),

, at *2 n.2 (D.D.C. Sept. 27, 2018).

III. ANALYSIS

A. Third-Party Revenues

Salt River claims that it is entitled to third-party revenues that IHS purportedly diverted

from non-Clinic sources to fund Clinic operations. Pl.’s Mot. at 18–19. According to Salt River,

when IHS operated the Salt River Health Clinic, the agency relied on three sources of funding:

IHS appropriations, third-party revenues generated at the Clinic, and third-party revenues

generated elsewhere.

The parties do not dispute that program-specific appropriations are

included in the secretarial amount provided under the compact, and that the tribe now directly

collects third-party revenues generated by providers stationed at the Clinic. Only the third category

is in dispute. Because it believed it could no longer access that third category, Salt River’s final

offer sought an additional $3,697,957 in funding. AR 406–10. IHS rejected that portion of the

offer during administrative proceedings, on the grounds that it “exceed[ed] the applicable funding

level to which the tribe is entitled under” statute.

. The agency explained that the tribe

would “have the opportunity to collect third-party reimbursement associated with” the claim and

that “IHS will correspondingly lose the capacity to seek recovery.”

In Fort McDermitt, the D.C. Circuit explained that the ISDEAA explicitly treats third-party

revenues such as Medicare or Medicaid income as “supplemental funding to that negotiated in the

[Title V] funding agreement.”

(citing

(j)). Under a Title V compact,

IHS is obligated to provide the secretarial amount it “would have otherwise provided for the 6 operation of the program[] . . . for the period covered by the contract.”

(a)(1).

But the statute “expressly excludes third-party income from the secretarial amount.” Fort

McDermitt,

(“Because income from third parties is ‘supplemental’ to the funds

negotiated in a funding agreement, it must be separate from those funds.”). Because tribes

participating in self-governance “may elect to bill for and receive the [third-party] income

directly,” they are not entitled to “double-dip[]” by also recouping those revenues from IHS.

(citing

(25), 1641(d)(1)). Thus, the agency may “exclude the value of Medicare

and Medicaid reimbursements from the secretarial amount” under a Title V compact.

Salt River argues that Fort McDermitt does not preclude compensation for third-party

revenues diverted from other IHS programs, because the tribe cannot “collect[] th[ose]

reimbursements directly” under a self-governance compact. Fort McDermitt,

; see

Pl.’s Mot. at 18–19 (citing Pyramid Lake,

). But the Court need not decide

whether Fort McDermitt contemplates such a carveout because Salt River has not shown that any

funding diversion actually occurred.

Salt River produces no direct evidence that IHS used third-party revenues generated at

other facilities to support the Clinic. To the contrary, IHS attests that it is not the agency’s “policy

or practice to use third-party revenue generated at . . . any other non-clinic source to support the

operations and expenditures of a Phoenix Area IHS clinic,” and that “IHS did not do so at the Salt

River Clinic.” Todecheenie Decl. ¶ 13, Dkt. 74-2. Moreover, statutory constraints limit the

agency’s ability to divert Medicare and Medicaid reimbursements. See

(c)(1)(B).

The IHCIA provides that any reimbursements must first be used to improve the facility where

those reimbursements are generated, to achieve compliance with the requirements of Titles XVIII

or XIX of the Social Security Act.

If excess funds remain, IHS must then engage in

7 “consultation with the . . . tribes . . . served by the Service unit” before diverting funds to any other

Service Unit or facility.

Nothing in the record suggests that any excess funds were generated,

or that IHS engaged in tribal consultations with any of the six tribes served by the Phoenix Service

Unit as required before diverting funds.

To infer that third-party revenues were diverted, Salt River relies on cost center reports that

IHS generated for the Salt River Health Clinic for fiscal years (FYs) 2012 through 2016. IHS cost

center reports display the “revenues, expenditures, and balances associated with the IHS operation

of given program for a given period of time.” Pl.’s Mot. at 19. The “Budget Activity Program”

line item in a cost center report “identifies the source of funding, including appropriated funds (for

example, ‘Hospitals and Clinics’ and ‘Dental’), and third-party revenues (e.g., Medicare,

Medicaid, Private Insurance, and, in some years, VA IHS Reimbursement).” Defs.’ Mot. at 30;

see AR 402–06. Cost center reports “do not accurately reflect the Secretarial amount and are not

ordinarily relied upon [by the agency] in determining the amount of funding due under an ISDEAA

contract.” 1 Reidhead Decl. ¶ 13, Dkt. 74-3.

The cost center reports show that IHS’s projections for total third-party revenues used to

support the Clinic amounted to $18,270,947 for FYs 2012 through 2016, but that projections for

revenues generated by providers stationed at the Clinic only amounted to $6,898,379. AR 406–

410 (sum of Allowances from Medicare, Medicaid, Private Insurance, Buybacks and VA IHS

Reimbursement columns). Thus, argues Salt River, that $11,372,568 difference must have resulted

1 Salt River takes the position that the agency’s contemporaneous lack of reliance on the cost center reports is not a material factual dispute. See Pl.’s Opp’n at 17, Dkt. 78. Moreover, that IHS provided the reports to Salt River during compact negotiations, see Defs.’ SOF ¶ 10, Dkt. 77-1, is not evidence that the agency internally relied on that data to make funding determinations.

8 from IHS supplementing the Clinic’s funding with third-party revenues generated at other IHS

facilities. Pl.’s Mot. at 33.

But Salt River does not dispute that the cost center report data was incomplete for two

reasons. First, the tribe did not request and IHS did not provide data for third-party revenues

collected at the Clinic for providers not stationed at the Clinic. See Pl.’s Opp’n at 19. Specifically,

IHS attests that for FYs 2012 through 2016, the agency collected at the Clinic roughly $2,690,593

in revenue generated by specialty providers stationed at PIMC or other facilities, $962,173 in

onsite pharmacy revenues, $240,654 in revenues for prescriptions filled at the pharmacy but

written by outside providers, and $20,360 in revenues for dental services. Todecheenie Decl. ¶ 10

& Ex. B. The Clinic continued to host visiting providers and to offer pharmacy services after the

tribe assumed responsibility, so Salt River was able to continue to bill directly for services by

outside providers.

. Second, the cost center reports reflect only projections subject to

further adjustments and reconciliation.

¶¶ 6–8. IHS’s financial system reflects that the actual

third-party revenue expenditures for FYs 2012 through 2016, accounting for adjustments and

revenue carryover, amounted to only about $13.8 million.

. Taken together, the non-Clinic

provider collections and the data adjustments account for the revenue gap reflected in the cost

center reports and refute any inference that IHS diverted third-party revenues. 2

2 Salt River objects to the agency’s reliance on evidence, including the Todecheenie declaration and collections data, proffered for the first time during litigation. But the agency introduced such evidence in response to novel arguments and evidence, see e.g., Brown Decl., Dkt. 71-1, that Salt River did not raise until its second motion for summary judgment—namely, that the claimed third-party revenues were diverted from other IHS facilities. Moreover, the agency’s evidence is not inconsistent with the stance the agency took during administrative proceedings. Cf. Chiquita Brands Int’l, Inc. v. SEC,

(D.C. Cir. 2015) (An agency is not “bar[red] . . . from merely elaborating on the consistent stance the agency articulated below.”). Accordingly, the Court will consider the additional collections and data adjustments in evaluating Salt River’s diversion theory.

9 Salt River’s sole evidence of diversion are the assertions in the Deveau declaration, Dkt.

71-2. Deveau asserts, based on his analysis of the cost center reports, that the disputed revenues

were “likely generated outside the [Salt River] Clinic and transferred into the Clinic budget for

IHS to supplement and operate the [Salt River]Clinic.” Id. ¶ 10. And Salt River proffers—for the

first time in its opposition brief, Pl.’s Opp’n at 19–20—that Deveau’s opinion is expert testimony

admissible under Federal Rule of Evidence 702. That rule requires expert testimony to be based

on “sufficient facts or data,” Fed. R. Evid. 702(b). Even when an expert relies upon his experience,

“the reliability criterion remains a discrete, independent, and important requirement for

admissibility.” Est. of Gaither ex rel. Gaither v. District of Columbia,

, 68–69

(D.D.C. 2011) (citation modified). Expert testimony “that rests solely on ‘subjective belief or

unsupported speculation’ is not reliable.” Groobert v. President & Dirs. of Georgetown Coll.,

(D.D.C. 2002) (quoting Daubert v. Merrell Dow Pharms., Inc.,

(1993)). “[A] court may conclude that there is simply too great an analytical gap between the data

and the opinion proffered” to admit the expert testimony. Gen. Elec. Co. v. Joiner,

(1997).

Deveau’s proffered opinion relies exclusively on the IHS cost center reports in the

administrative record. Deveau Decl. ¶¶ 3, 8. He infers from the mere existence of a revenue gap

in the cost center reports that the agency must have “earned [third-party revenues] somewhere

outside the SR Clinic.” Id. ¶ 8.c. But, as noted, it is undisputed that the cost center reports

contained incomplete data. Because Deveau’s inference amounts to little more than speculation,

and there is “simply too great an analytical gap between the data” and his conclusion, Joiner,

, the Court concludes his opinion is inadmissible.

10 In sum, the undisputed evidence does not show that IHS diverted third-party revenues to

fund the operations of the Salt River Health Clinic. Fort McDermitt thus governs this case: The

general rule that the ISDEAA “excludes third-party income from the secretarial amount” applies.

. Accordingly, the Court finds that IHS properly rejected the tribe’s claim for

third-party revenues, and it will deny Salt River’s motion for summary judgment and grant the

agency’s cross motion.

B. Tribal Shares

On Claim II, for the unpaid portion of Salt River’s tribal shares of the Phoenix Service

Unit, the agency concedes that it is obligated to pay an additional $664,057 for FY 2018, as well

as approximately $12,000 3 for the seven days of FY 2017 operated under the compact. See Defs.’

Reply at 17, Dkt. 80. Accordingly, the Court will enter judgment in favor of Salt River in the

amount of $664,057, plus the amount owed for FY 2017 to be calculated by the parties.

C. Contract Support Costs

In addition to the above, Salt River claims in Count III that it is entitled to additional

contract support costs for the tribal shares awarded under Count II. The ISDEAA provides that

contract support costs “shall be added” to the secretarial amount to reimburse qualifying expenses

that “incurred” by the tribe.

(a)(2)–(3), 5304(f). The process for negotiating

indirect contract support costs is set forth in detail in the IHS manual. At a high level, the manual

provides that preliminary indirect contract support costs may be calculated “[i]n advance of the

contract year” by multiplying a negotiated indirect cost rate by the direct cost base, see IHM, § 6-

3.2E(1)a, or negotiated as an up-front lump sum payment, id. § 6-3.2E(2). At the end of the

3 The agency represents that it is in the process of calculating the exact amount owed for the seven days in FY 2017. See Defs.’ Reply at 17 n.4.

11 contract year, those costs are subject to a “final reconciliation” accounting for, among other things,

adjustments to the direct cost and the secretarial amount, pass throughs and exclusions, and the

applicable indirect cost rate. Id. § 6-3.2E(1)b. Regardless of the methodology used, the IHS

manual provides that final amounts must be “consistent with the definition,” id. § 6-3.2E(1)–(4),

provided under

(a). That statutory provision mandates that contract support costs

are limited to the “reasonable and allowable costs” actually incurred by the tribe. See

(a)(3)(A) (providing that such costs are to “reimburs[e]” the tribe).

Salt River does not dispute that it “did not expend the amount it claims in” contract support

costs. Pl.’s Opp’n at 41. That admission defeats the tribe’s claim: The ISDEAA does not authorize

the reimbursement of contract support costs if the tribe “never incurred [those] administrative

costs” to begin with. Samish Indian Nation v. United States,

(Fed. Cir. 2005).

Salt River contends that the additional costs were not incurred because of the agency’s tribal shares

underpayment. See Pl.’s Opp’n at 41 (“[Tribal shares] not paid cannot be expended, reducing the

costs ‘incurred’ and thus the amount IHS owes.”). But that does not alter the fact that the tribe is

not entitled to reimbursement for non-expenditures under the ISDEAA.

(a)(3);

Pyramid Lake,

(“Nothing in the Act requires the Secretary to provide a

windfall to a tribe.”). Nor does IHM’s provision for payments in advance of a contract year, see

IHM § 6-3.2E(1)–(2), suggest that Salt River is entitled to a payment at present. The manual

explains that up-front rate-based payments are subject to “final reconciliation” at the end of the

contract year, thus accounting for any over- or under-payment of incurred costs. See id. § 6-

3.2E(1)(b)(vi). And under any methodology, the contract support costs ultimately paid must be

consistent with the ISDEAA statute. Id. § 6-3.2E(1)–(4) (citing

(a)(2)–(3)).

Thus, the tribe is only entitled to recover the amount that it actually “incurred,” 25 U.S.C.

12 § 5325(a)(3)(A)(ii), in additional contract support costs—in this case, nothing. See Pl.’s Opp’n at

41.

Accordingly, because Salt River has not presented evidence of reasonable and allowable

contract support costs incurred, the Court will grant the agency’s motion for summary judgment

with respect to Count III.

CONCLUSION

For these reasons, the plaintiff’s Motion for Summary Judgment, Dkt. 71, is granted in part

and denied in part; and the defendants’ cross motion for summary judgment, Dkt. 74, is granted in

part and denied in part. A separate order consistent with this decision accompanies this

memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge August 14, 2025

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