Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell (100 F. Supp. 3d 1122, 2015)

United States District Court for the District of New Mexico 2015-04-09

Indians Money and Finance Public Contracts Government Organization and Employees

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs Motion for Immediate Injunctive Relief With Supporting Memorandum of Points and Authorities, filed December 22, 2014 (Doc. 17)(“Motion”). The Court held a hearing on February 12, 2015. The primary issues are: (i) whether the Court will order a permanent injunction; and (ii) whether the Court will order a preliminary injunction. The Court will not order a permanent injunction. The Court will, however, order a preliminary injunction to require Defendants Sylvia Matthews Burwell, Yvette Roubideaux, John Hubbard, Jr., and Frank Dayish (collectively, “the Defendants”), to fund the Navajo Health Foundation — Sage Memorial Hospital, Inc., according to the terms of: (i) the Annual Funding Agreement Between Navajo Health Foundation /Sage Memorial Hospital and the Secretary of the Department of Health and Human Services Fiscal Year 2013, filed January 13, 2015 (Doc. 21-2)(“2013 AFA”); and (ii) the Indian Self-Determination Contract Between Navajo Health Foundation/Sage Memorial Hospital and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21-1)(“2010 Contract”), until this case is resolved on the merits. The Court will also order both parties to comply with the terms and conditions of the 2013 AFA and the 2010 Contract until this case is resolved on the merits. Among other things, this means that the Defendants must reinstate Sage Hospital’s coverage under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(“FTCA”), as Section 4 of the 2013 AFA provides. The Court will not require Sage Hospital to.post a bond.

FACTUAL BACKGROUND

The Court must make findings of fact to order a preliminary injunction. See Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1179 (D.N.M.2011) (Browning, J.). “[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” Attorney Gen, of Okla v. Tyson Foods, Inc.; 565 F.3d 769, 776 (10th Cir.2009) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). “The Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003).

1. This case arises from the Navajo Area Office of the Indian Health Service’s (“NAIHS”) decision not to renew its contract with Sage Hospital to provide healthcare to Navajo Indians in the Navajo Nation under the Indian Self Determination and Education Assistance Act, 25 U.S.C. § 450 (“ISDEA”).

2. The Navajo Nation Council has formally designated Sage Hospital a Navajo “tribal organization” under the ISDEA. Declaration of Stenson Wauneka ¶ 3, at l, filed December 22, 2014 (Doc. 17-1) (‘Wauneka 1st Deck”).

3. Sage Hospital employs approximately 200 people on a campus in Ganado, Arizona — -which lies within the Navajo Nation. See Declaration of Christi El-Meligi ¶ 3, at 5, filed December 22, 2014 (Doc. 17-1)(“E1-Meligi 1st Decl.”).

1. Sage Hospital’s Tumultuous History.

4. From 1974 to 2007, Sage Hospital’s facilities grew increasingly obsolete, and the quality of its healthcare services plummeted. See Declaration of Ahmad Raza-ghi ¶ 3, at 21, filed December 22, 2014 (Doc. 17-l)(“Razaghi 1st Deck”).

5. Consequently, by 2007, Sage Hospital was fighting multiple regulatory and financial battles to stay afloat. See Raza-ghi 1st Deck ¶ 3, at 21. See id. ¶¶ 7-8, at 23.

6. The Centers for Medicare and Medicaid Services was threatening to terminate Sage Hospital’s certification, the Arizona Department of Health Services was threatening to revoke Sage Hospital’s Rural General Hospital license, and the Joint Commission on Accreditation of Health Care Organizations (“Joint Commission”) — an independent, non-profit organization that accredits hospitals throughout the United States — -was threatening to refuse Sage Hospital accreditation. Razaghi 1st Deck ¶ 3, at 21. See id. ¶¶ 7-8, at 23.

7. Sage Hospital was also in violation of Administrative Orders that the Environmental Protection Agency (“EPA”) issued in 1999 and 2006, and was also in ongoing litigation against the NAIHS. See Raza-ghi 1st Deck ¶ 7, at 23.

8. Because of its substandard employee housing and benefits, and its precarious financial condition, Sage Hospital struggled to recruit and retain top-quality staff. See Razaghi 1st Deck ¶ 13, at 25.

9. Consequently, Sage Hospital was forced to close its general surgery and obstetric care departments before January, 2007. See Razaghi 1st Deck ¶ 8, at 23.

10. in October, 2007, Sage Hospital’s Board of Directors (the “Board”) rejected a plan to close the hospital, and instead chose to hire M. Morgan & Associates — a third-party management company — to oversee its financial and personnel management, and to make the necessary-changes to turn around its operations. See Razaghi 1st Deck ¶ 3, at 21; Wauneka 1st Decl. ¶ 5, at 1.

11. The Board hired Ahmad Razaghi— one of M. Morgan & Associates’ principals — to serve as its temporary Chief Executive Officer (“CEO”). Wauneka 1st Deck ¶ 5, at 1.

12. Under Razaghi’s tutelage, Sage Hospital’s turnaround effort succeeded. See Razaghi 1st Deck ¶ 10, at 23.

13. From 2007 to 2009, Sage Hospital negotiated with the Centers for Medicare and Medicaid Services and the Arizona Department of Health Services to keep Sage Hospital open without losing additional healthcare services. See Razaghi 1st Deck ¶ 9, at 23.

14. In 2009, Sage Hospital settled its lawsuit against the NAIHS. See Razaghi 1st Deck ¶ 9, at 23.

15. In September, 2009 — for the first time in a decade — Sage Hospital received both an unconditional Arizona Department of Health Services license, and its Centers for Medicare and Medicaid Services certification. See Razaghi 1st Deck ¶ 10, at 23-24.

16. On May 4, 2009, the Joint Commission awarded Sage Hospital its “Gold Seal of Approval,” signifying that Sage Hospital exemplified the highest quality of patient care. Razaghi 1st Deck ¶ 10, at 23-24.

17. In March, 2010, the United States Surgeon General, Vice Admiral Dr. Regina M. Benjamin, on behalf of the Department of Health and Human Services (“HHS”), awarded Razaghi the “Chief Executive Officer Managerial Excellence Award” for “leadership, successes and improvements which equate to improved and enhanced patient care.” Razaghi 1st Deck ¶ 10, at 23-24.

18. In June, 2012, Sage Hospital received the American Hospital Association Institute for Diversity’s “Best in Class Hospital Award” for leadership in addressing health disparities and improving diversity in governance; the award recognized Sage Hospital and only one other hospital out of 900 hospitals nationwide. Wauneka 1st Deck ¶ 7, at 2.

19. In a January 10, 2012, letter, the EPA informed Sage Hospital that it had fulfilled all of the requirements of the EPA’s 1999 and 2006 Administrative Orders. See Razaghi 1st Deck ¶ 11, at 24.

20. On September 12, 2013, the Arizona Department of Health Services licensed Sage Hospital as a Rural General Hospital through September 30, 2016. See Razaghi 1st Deck ¶ 11, at 24.

21. In March, 2014, the Joint Commission granted Sage Hospital “Critical Access Hospital Accreditation,” stating that it could not identify any requirements for improvements. Razaghi 1st Deck ¶ 11, at 24.

22. Each year, from 2007 to 2013, Sage Hospital also received an unqualified' — ie., “clean” — audit from its independent auditors. Razaghi 1st Deck ¶ 11, at 24.

23. Sage Hospital completed its turnaround effort without eliminating any services, and began expanding its services in 2009. See Razaghi 1st Deck ¶ 12, at 24.

24. Sage Hospital’s overhead — which includes Board stipends and payments to Razaghi and his related companies — has decreased steadily from $9 million in FY 2006, which constituted 41.9% of total expenses for that year, to $8 million in FY 2013, which constituted 24.5% of total expenses for that year. See Declaration of Michael Katigbak ¶ 8(D), at 37, filed December 22, 2014 (Doc 17-l)(“Katigbak 1st Deck”).

2. Allegations That Sage Hospital Was Misusing Federal Funds.

25. During the turnaround effort, Sage Hospital terminated or allowed to resign several employees, many of whom were politically active in the Navajo Nation. See Razaghi 1st Decl. ¶ 14, at 26.

26. In July, 2013, Dr. Douglas Peter— the NAIHS’ Chief Medical Officer — began receiving reports from current and former Sage Hospital senior management employees that the hospital was misusing federal funds. See Declaration of John Hubbard, Jr. ¶ 3, at 2-3, filed February 5, 2015 (Doc. 36-l)(“Hubbard Decl.”).

27. The current and former employees alleged that Razaghi had diverted millions of dollars to his companies over several years. See Hubbard Decl. ¶ 3, at 2-3.

28. They further alleged'that Razaghi had used Sage Hospital’s operating funds to settle a lawsuit that his brother had filed against him, even though Sage Hospital was not a named party in the suit. See Hubbard Decl. ¶ 3, at 3.

3. Sage Hospital’s Contracts and Annual Funding Agreements with the NAIHS.

29. Sage Hospital and the NAIHS entered into a three-year contract in 2010, which was set to expire on September 30, 2013. See 2010 Contract; Razaghi Decl. ¶ 6, at 22-23.

30. Sage Hospital and the NAIHS also agreed to an annual funding agreement (“AFA”) for the 2013 Fiscal Year (“FY”). See 2013 AFA.

31. In the 2013 AFA, Sage Hospital and the NAIHS agreed that the NAIHS would fund Sage Hospital at a total amount of $18,044,042.00, with $11,481,661.00 in base funding and $6,562,381.00 for direct and indirect contract support costs. See 2013 AFA at 22, 30.

32. On August 22, 2013, Sage Hospital submitted a proposed three-year renewal of the 2010 Contract and a successor AFA for FY 2014. See Renewal No. 1 and Amendment No. 1 to the Indian Self-Determination Act Contract Between Navajo Health Foundation/Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21-3)(“2013 Renewal”); Annual Funding Agreement Between Navajo Health Foundation — Sage Memorial Hospital, Inc., and The Secretary of the Department of Health and Human Services Fiscal Year 2014, filed January 13, 2015 (Doc. 21-3)(“2014 AFA”); Hubbard Decl. ¶ 4, at 3; Razaghi 1st Decl. ¶ 16, at 26.

33. The 2013 Renewal proposed the following amendments to the 2010 Contract — the added sections are underlined and the deleted sections are crossed out:

Article I, Section 2(B):

(B) In General. Each provision of the ISDA and each provision of this Contract shall be liberally construed for the benefit of Sage to transfer the funding and certain programs, functions, services, and activities (hereinafter “PFSAs”), or portions thereof, and associated resources, that are otherwise con-tractiable under section 102(a) of the ISDA (25 U.S.C. § 450f(a)), including all related administrative functions, from the Secretary to Sage.

Article II, Section 1:

SECTION 1 — TERM. Pursuant to section 105(c)(1) of the ISDA (25 U.S.C. § 450j(c)(l)), the original term of this Contract shall be 3 years, from October 1, 2010 through September 30, 2013. Pursuant to 25 U.S.C. §§ k50f(a)(2) and k50j (c)(1), 25 C.F.R. §§ 900.12 and 900.8(h), the Navajo Nation Council’s Resolution CJN-35-05 passed on June 3, 2005 (“Resolution”) attached as At tachment 1 to the Contract, and Article V, Section 2(A) of the Contract, the Contract is amended as stated in this Renewal and Amendment and renewed for a three-year term from October 1, 2013 through September 30, 2016.

Article II, Section 7(D):

(D) Confidentiality Standards. Sage will maintain confidentiality in accordance with applicable Federal, Arizona, Navajo Nation and Navajo Nation statutes and regulations, including without limitation the Health Insurance Portability and Accountability Act of 1996.

2013 Renewal at 5-6.

34. The 2014 AFA contains only minor amendments to the 2013 AFA. Compare 2014 AFA passim, with 2013 AFA passim.

35. The 2014 AFA proposed modest increases in Sage Hospital’s funding from the 2013 AFA: base funding would increase from $il,481,661.00 to $13,222,149.00 and contract support costs Would increase from $6,562,381.00 to $7,516,697.00. Compare 2013 AFA at 22, 30, with 2014 AFA at 2-3.

36. Because of the mounting allegations against Sage Hospital, the NAIHS did not approve either the 2013 Renewal or the 2014 AFA, opting instead to provide Sage Hospital funding on a month-to-month basis while investigating the allegations. See Hubbard Decl. ¶ 4, at 3; Raza-ghi Decl. ¶ 16, at 26.

37. Although the NAIHS generally must approve or decline a contract proposal within ninety days, the NAIHS requested, and Sage Hospital agreed to, a series of extensions of the ninety-day periods. See Hubbard Decl. ¶ 4, at 3.

4. The Events Leading up to the NAIHS’ Performance Monitoring » Review.

38. In September, 2013, and early October, 2013, the local media in and around Ganado contained reports of intense public criticism of Sage Hospital’s management and allegations that Sage Hospital was misusing federal funds. See. Hubbard Decl. ¶ 5, at 3; Arlyssa Becanti, Ganado Officials Want Razaghi Out, The Gallup Independent (Oct. 9, 2013), filed December 22, 2014 (Doc. 17-l)(“Becanti Article”).

39. On October 9, 2013, The, Gallup Independent — a newspaper with a wide circulation in the Navajo Nation-published an article entitled Ganado Officials Want Ra-zaghi Out. See Becanti Article at 30.

40. The article reported that, at an October 8, 2013, meeting, the Ganado Chapter of the Navajo Nation passed a resolution requesting that “Mr. Ahman [sic] Razaghi, Chief Executive Officer of Sage Memorial Hospital be terminated and immediately escorted off the Navajo Nation land.” Becanti Article at 31.

41. The article explained that multiple former Sage Hospital employees spoke at the meeting in favor of the resolution, and alleged that Sage Hospital had unlawfully terminated them and had misused millions of dollars in federal funds. See Becanti Article at 31.

42. On September 30, 2013, The Gallup Independent published a second article— on the front page above the fold — with the headline: Ex-employees: ‘This is illegal.’ Sage Memorial Hospital operations a tangled web. See Sherry Robinson, Ex-employees: ‘This is illegal.’ Sage Memorial Hospital operations a tangled web at 32, The Gallup Independent (Sept. 30, 2013), filed December 22, 2014 (Doe. 17-l)(“Rob-inson Article”).

43. That article detailed how Caleb Lauber — a former director of Sage Hospital’s outpatient clinic and diabetic grant program — had filed a complaint with the Navajo Labor Commission, in which he stated:

After assuming my new duties [at Sage Hospital] ... I was subjected to personalized attacks and then fired. This was in response to speaking out about severe discrepancies that I found in the diabetic grant program, ahd attempting to better the medical care and treatment plan provided to patients in the outpatient clinic.

Robinson Article at 33 (internal quotation marks omitted).

44. According to the article, Lauber “discovered that there, was $256,000 unaccounted for from the 2009 fiscal year, along with financial irregularities for fiscal 2010,” which prompted him to make his accusations public. Robinson Article at 33 (internal quotation marks omitted).

45. On October 16, 2013, Jonathan Hale — the Chairman of the Health, Education and Human Services Committee of the Navajo Nation Council — wrote a letter to the former HHS Secretary — Kathleen Sebelius — -voicing a number of concerns about Sage Hospital. See Letter from Jonathan Hale, Chairman of the Health, Education and Human Services Committee of the Navajo Nation Council, to Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services at 11 (Oct. 16, 2013), filed February 5, 2015 (Doc. 36-l)(“Hale Ltr.”); Hubbard Decl. ¶ 5, at 3-4.

46. Hale said that, “[rjecently, through newspapers, community meetings, and meetings with federal and state officials, significant concerns have been raised that Sage Memorial Hospital and its managing companies may have mismanaged federal funds, diverted funds for personal use, set up corporate schemes to hide improprieties and falsified credentials.” Hale Ltr. at 11.

47. Hale noted that, without a thorough investigation, “the Navajo Nation cannot be assured that funds designated for the health of its people are being properly managed.” Hale Ltr. at 11.

48. Accordingly, Hale requested that the NAIHS: (i) conduct an immediate investigation into Sage Hospital’s alleged misuse of federal funds; (ii) determine whether Sage Hospital was performing the contracted programs, functions, services, and activities (“PFSAs”) to acceptable standards; and (iii) conduct a performance monitoring review. See Hale Ltr. at 1112; Hubbard Decl. ¶ 5, at 3-4.

49. Because of the Hale Ltr. and the NAIHS’ growing concerns about Sage Hospital’s possible misuse of federal funds, the NAIHS organized a performance monitoring review to occur during the week of January 6, 2014. See Hubbard Decl. ¶ 6, at 4.

50. The NAIHS informed Sage Hospital that it would receive a copy of the final performance monitoring review report, see Hubbard Decl. ¶ 6, at 7, and promised to provide draft reports for Sage Hospital to review, so that it could correct any errors and discuss any adverse findings with the NAIHS, see Razaghi 1st Decl. ¶ 4, at 21-22.

5. Moss Adams ’ Audit.

51. On January 15, 2014, the NAIHS contracted with Moss Adams — an accounting firm — to conduct a forensic audit of Sage Hospital’s financial records and accounting practices. See Declaration of James Thompson ¶ 3, at 2-3, filed February 5, 2015 (Doc. 36-2)(“Thompson Decl.”).

52. Moss Adams performed its audit in two phases. See Thompson Decl. ¶ 3, at 2-3.

53. During Phase I, Moss Adams reviewed Sage Hospital’s financial transactions and operations from October 1, 2009, to December 31, 2013. See Thompson Deck ¶ 3, at 2-3.

54. During Phase II, Moss Adams reviewed Sage Hospital’s financial transactions and operation's from October 1, 2007, to April 11, 2013. See Thompson Decl. ¶ 3, at 2-3.

55. Moss Adams completed Phase I on February 10, 2014, and Phase II on July 2, 2014. See Thompson Decl. ¶ 3, at 2-3.

56. On April 29, 2014, the NAIHS sent a letter to Sage Hospital. See Letter from Floyd F. Thompson, Executive Office of the Navajo Area Indian Health Service, to Stenson D. Wauneka, President of the Board of Directors of Sage Hospital (Apr. 29, 2014), filed February 5, 2015 (Doc. 36-l)(“Thompson’s 1st Ltr.”).

57. Thompson’s 1st Ltr. said that the NAIHS was “pleased to see that Sage will continue to cooperate with [the NAIHS’] review,” and explained that the NAIHS would continue its review, because “there is reasonable cause to believe that grounds for re-assumption[] of the contract or suspension of contract payments, or other serious contract performance deficiencies may exist.” Thompson’s 1st Ltr. at 14.

58. On July 11, 2014, the NAIHS sent a second letter to Sage Hospital. See Letter from Floyd F. Thompson, Executive Office of the Navajo Area Indian Health Service, to Stenson D. Wauneka, President of the Board of Directors of Sage Hospital (July 11, 2014), filed February 5, 2015 (Doc. 36-l)(“Thompson’s 2nd Ltr.”).

59. In Thompson’s 2nd Ltr., the NAIHS warned Sage Hospital that “there remain outstanding requests for information relevant to the forensic audit requested by our contracted auditors (Moss Adams) and request that any and all outstanding responses be submitted to the Attention of Moss Adams no later than close of business on July 16, 2014.... ” Thompson’s 2nd Ltr. at 16.

60. The NAIHS also reiterated that there is “reasonable cause to believe that grounds for re-assumption of the contract or suspension of contract payments, or other serious contract performance deficiencies may exist.” Thompson’s 2nd Ltr. at 16.

61. On July 15, 2014, Sage Hospital sent a letter to the NAIHS in response to Thompson’s 2nd Ltr. See Letter from Stenson D. Wauneka, President of the Board of Directors of Navajo Health Foundation — Sage Memorial Hospital, Inc. (July 15, 2014), filed February 11, 2015 (Doc. 41-l)(“Response to Thompson’s 2nd Ltr.”).

62. In the Response to Thompson’s 2nd Ltr., Sage Hospital wrote:

During the past seven months during which the performance monitoring review has been undertaken, Sage has made every effort to be open and cooperative with NAIHS and your contract auditors, Moss Adams, L.L.P. Sage has provided 23,286 pages of documents dealing with approximately $124 million in operating transactions. As of July 13, 2014, Sage has provided requested documents for 451 of 454 transactions (or $12,434,115 out of a total $12,439,940). For the remaining 3 transactions totaling $5,825, we have provided detailed explanations for these relatively immaterial amounts. In total, we believe that more than 99.3% of your document requests (or 99.9% of the dollar supports have been addressed).

In your July 11 letter you state, “there remain outstanding requests for information” relating to the performance monitoring review, and you attempt to set a deadline of July 16, 2014 for Sage to submit any “outstanding responses.” You further state, “no additional information will be considered after this date.” Sage’s counsel and management have made numerous requests to have NAIHS’s contracted auditors identify any specific items that remain outstanding, and we have received no response since June 2, 2014. While we appreciate the desire to compete this process, we want to make sure that your contracted auditors do not come up with a list of outstanding items after July 16 that we cannot respond to. Accordingly, we request that you identify any items that are considered to be “outstanding” and provide us with a reasonable opportunity to address those items.

Response to Thompson’s 2nd Ltr. At 11-12.

63. On July 25, 2014, Moss Adams submitted its final report to the NAIHS, which contained its findings from both Phase I and Phase II. See Report of Independent Accountants Forensic Consulting Procedures, filed January 13, 2015 (Doc. 21-18)(“Moss Adams Report”); Thompson Decl. ¶ 3, at 2-3; Hubbard Decl. ¶ 7, at 4.

64. Although Sage Hospital produced approximately 23,000 pages- of documents, it did not cooperate fully with the NAIHS’ and Moss Adams’ requests. See Thompson Decl. ¶ 4, at 3.

• 65. For example, when Moss Adams requested the bid files for vendor contracts, Sage Hospital provided only the vendor invoices and never provided the bid documents themselves. See Thompson Decl. ¶ 13, at 6-7.

66. When Moss Adams requested copies of all contracts between Sage Hospital and Razaghi, or his related companies, Sage Hospital provided duplicate copies of certain contracts and did not provide copies of other contracts at all. See Thompson Decl. ¶ 13, at 6-7.

67. From FY 2007 through FY 2014, Sage Hospital employed three auditing firms — Eide Bailey, LLP from 2007 to 2010, Wipfli, LLP in 2011, and Bradshaw, Smith & Co., LLP, from 2012 to 2014. See Declaration of Michael Katigbak ¶ 8, at 3, filed February 11, 2015 (Doc. 41-l)(“Katigbak 2nd Decl.”).

68. Moss Adams asked Sage Hospital for a listing of its annual audits from prior auditors; Moss Adams also sought to ask the prior auditors about the financial information that Sage Hospital provided, obtain ■ a copy of their audit adjustments, and inquire whether they had any disagreements with Sage Hospital concerning accounting matters. See Thompson Decl. ¶ 6, at 4.

69. Sage Hospital’s counsel would not, however, allow Moss Adams to speak with its prior auditors. See Thompson Decl. ¶ 6, at 4.

70. Moss Adams also had numerous concerns regarding payments to, and approved by, the Board. See Thompson Decl. ¶¶ 7-12, at 4-7.

71. Sage Hospital’s payments to its Board, and the Board’s credit card expenses, tripled between 2010 and 2014; Board meetings at offsite resorts also became increasingly frequent. See Thomp-. son Decl. ¶ 7, at 4.

72. In 2013, Board reimbursements and stipends exceeded $230,000.00; the Board’s credit card expenses reached $348,000.00. See Thompson Decl. ¶ 7, at 4.

73. The total of Board travel expenses for FY 2013 was $61,942.00 — $645 per month per Board member — which is less than Sage Hospital’s five-year average of $66,820.00. See Declaration of Stenson D. Wauneka ¶ 5, at 1-2, filed February 11, 2015 (Doc. 41-3)(“Wauneka 2nd Decl.”).

74. The Board authorized the purchase of computers and iPads, apparently for the Board members’ personal use. See Moss Adams Report at 6; Thompson Decl. ¶ 7, at 4.'

75. Moss Adams asked Sage Hospital to provide invoices for those purchases; Sage Hospital provided copies of invoices totaling approximately $32,000.00 for purchases made in 2011, but did not provide any documentation for the purchases that it made in 2012. See Thompson Decl. ¶ 7, at 4.

76.The Board approved a $1.8 million bonus for Razaghi Healthcare on August 6, 2012. See Thompson Decl. ¶ 7, at 4-5; Declaration of Abmad R. Razaghi ¶ 3, at 1-2, filed February 11, 2015 (Doc. 41-3)(“Razaghi 2nd Decl.”).

77. Although Moss Adams found no evidence that the Board had reviewed an independent fair market analysis before approving the $1.8 million bonus, the Board did conduct a fair market review before approving the bonus, and also performed a confirming study after Sage Hospital’s former employees criticized the bonus amount in the press. See Thompson Decl. ¶ 7, at 4-5; Razaghi 2nd Decl. ¶ 3, at 1.

78. Both the initial review and the confirming study found that the bonus amount was reasonable and well within fair-market parameters. See Razaghi 2nd Decl. ¶ 3, at 1.

79. At an August 6, 2012, meeting, the Board approved an increase in its stipend from $250.00 per meeting to $500.00 per meeting. See Thompson Decl. ¶ 7, at 5.

80. By comparison, each of the twelve members of the Board of Directors of the American Indian hospital in Fort Defiance receives a stipend of $1,200.00 per meeting plus expenses. See Wauneka 2nd Decl. ¶ 5, at 3.

81. The vote whether to increase the Board’s stipend was not on the initial meeting agenda, but was added after the Board approved Razaghi Healthcare’s $1.8 million bonus. See Thompson Decl. ¶ 7, at 5.

82. Sage Hospital paid Razaghi “severance” compensation from 2011 to 2013 for a total of $523,905.00, but Moss Adams could not determine whether the Board properly approved those payments. Thompson Decl. ¶ 7, at 5.

83. Razaghi’s contract provided that he would receive a severance package only upon the termination of his contract. See Thompson Decl. ¶ 7, at 5.

84. Sage Hospital paid over $13 million to Razaghi and to his companies between October 1, 2009, and December 31, 2013; Razaghi’s management personnel did not comply with Sage Hospital’s “procurement or travel policies”; and Sage Hospital did not receive competitive bids for its large purchases or obtain Board approval for all purchases over $50,000.00 — “both of which violated its contract-approval requirements.” Thompson Decl. ¶ 10, at 6. See Moss Adams Report at 14.

85. Moss Adams also reviewed payments that Sage Hospital made to one of its vendors: Four Seasons Construction. See Thompson Decl. ¶ 11, at 7.

86. Sage Hospital paid Four Seasons Construction approximately $2.1 million between October, 2009, and December, 2013, but Moss Adams found that the work may have been awarded without a bidding process, as Moss Adams never found a bid file for that project. See Thompson Decl. ¶ 11, at 7.

87. A number of Four Seasons Construction employees were on Sage Hospital’s payroll. See Thompson Decl. ¶ 11, at 7.

88. At least one invoice that Moss Adams uncovered during its audit showed that Sage Hospital was charged twice for the same services that those employees provided — once from Sage Hospital directly and a second time through Sage Hospital’s payments to Four Seasons Construction. See Thompson Decl. ¶ 11, at 7.

89. Moss Adams asked Sage Hospital for time sheets/records for the payroll periods under review, but Sage Hospital never provided them. See Thompson Decl. ¶ 11, at 7.

90. Sage Hospital paid approximately $500,000.00 towards the settlement of a lawsuit between Razaghi and his brother, even though Sage Hospital was not a named party in the case. See Thompson Decl. ¶ 12, at 7.

91. Sage Hospital provided only redacted invoices for legal services to Moss Adams, so Moss Adams was unable to verify the nature of the charges. See Thompson Decl. ¶ 11, at 7.

92. Razaghi received $231,560.72 for the settlement from a liability insurer not associated with Sage Hospital; he promptly remitted that exact amount to Sage Hospital. See Check to Morgan & Associates, LLC for $231,560.72 Re: Razaghi et. al. v. Razaghi et. al. (Aug. 21, 2013), filed February 11, 2015 (Doc. 41-3); Check from Morgan & Associates to Navajo Health Foundation — Sage Memorial Hospital for $231,560.72 (Oct. 29, 2013), filed February 11, 2015 (Doc. 41-3); Razaghi 2nd Decl. ¶ 4, at 2.

93. . Moss Adams interviewed the Board members as a group with their attorney present; as the interview questions were presented “each member looked to their attorney and answered questions carefully in a manner which suggested scripted answers. In the event that members did not know an answer, their attorney would lead them to answer questions and identify a certain Board member to answer.” Navajo Area Indian Health Service Report on Navajo Health Foundation — Sage Memorial Hospital, Inc. Performance Monitoring Review in January 2014 (Sept. 15, 2014) at 22, filed January 13, 2015 (Docs. 21-12 & 21-13)(“NAIHS Report”)

6. The NAIHS’ Performance Monitoring Review.

94. The NAIHS completed its performance monitoring review report on September 15, 2014. See NAIHS Report; Hubbard Deck ¶ 8, at 4-5.

95. The NAIHS Report’s major findings include, in pertinent part:

It has been demonstrated through the performance monitoring review that a breach of fiduciary responsibility and accountability exists with the current Board of Directors of [Sage Hospital (“SMH”) ] that jeopardizes the financial resource base expressly intended for the delivery of sage and adequate patient care. Additionally, it has been demonstrated that the Board of Directors of SMH relinquished its oversight responsibility to a contracted management program and that this relationship contributed to the negligent absence of meaningful oversight over program operations as demonstrated in the defined findings listed below:

1) Services have been eliminated (ophthalmology, general surgery, Sanders dental clinic, and obstetric[] care) since the first SMH contract was awarded in 2003.

2) Other Programs, Functions, Services, and Activities (PFSAs), including Financial Management, Contracts/Grants/Awards Management, Human Resources, Information Technology services, Facilities Management, and Facility Safety had multiple deficiencies in addition to potential OSHA violations uncovered during the on-site review.

3) The SMH Board violated its own Arizona Articles of Incorporation, Code of Conduct and SMH Policies and Procedures by:

A) Breaching fiduciary duty to the corporation,

B) Deriving improper personal benefits,

C) Authorizing the release official statements, tax returns, and cost reports that did not fully disclose the Razaghi’s related party transactions, and

D) Not maintaining adequate internal control system to ensure records were maintained to support travel expenses, large contract procurement, and credit card expenses.

Examples include

1. The SMH Board has violated their own approval requirements for contracts by allowing the Raza- . ghi management company to award contracts without evidence of competitive bids, as determined by NAIHS program reviewers and a forensic audit. This included awards to Mr. Razaghi’s related companies and other large vendor relationships that were awarded for more than $50,000.

2. The SMH Board violated its own Code of Conduct adopted January 24, 2008 by accepting, at no cost to Board members, “gifts” of value such as iPads and laptop computers, without evidence that they are on SMH property records as determined by audited invoices reviewed as part of the program review. In addition, Board members per the forensic audit also received compensation in the form of “payments for meal expenses” that were charged to SMH credit cards in addition to daily meal allowances provided to board members, incurred questionable reimbursements from meetings and travel unsubstantiated by reimbursement documents and received the benefit of hotel costs at resorts that exceeded the daily lodging per diem rates.

3. The SMH Board allowed Mr. Ahmad R. Razaghi to receive a total of $523,905 of “severance compensation” payments while serving as the CEO of SMH annually from August, 2007 to July, 2013 in the amounts of $91,000.00 per annum. There was nothing provided in the board minutes to document if the board officially approved these severance payments and the reasoning why - severance pay would be payable while the management contracts were still in place and termination had not taken place to trigger payments of termination benefits. It was also noted (section 5.0.1 of the No. 1 Amendment No. 1 and Extension No. 1 to CEO Services Contract signed May 17, 2013, Page 9), that if SMH terminates the services contract, the Board agrees to pay Razaghi Healthcare as “severance pay”, an amount equal to the average of the most recent four years of funds paid to Razaghi Healthcare (RH). Hence, the more funds authorized to be paid to RH by the SMH Board, the more advantageous to .RH in the event of a termination of contract by the SMH Board.

4. The SMH Board paid for Mr. Ra-zaghi’s attorney(s) for personal lawsuits involving Mr. Razaghi which did not have SMH as a named party involved in the legal proceedings.

5. The SMH Board for several years allowed payments for services/goods for which no supporting documents substantiating the reason for payments exists. Aso, the Board may be responsible for employees of SMH being on the payroll at the same time these employees worked for a construction company which invoiced SMH for the exact same hours worked on SMH projects.

6. The SMH Board in August, 2012 agreed to a bonus for Mr. Razaghi of $1.8 million without a Fair Market Value (FMV) analysis report. The FMV report was received in March, 2013 which was after the bonus was paid and was prepared by Razaghi Healthcare, not an independent party. Subsequently, in December 2013, a compensation appraisal was performed. Per NAIHS forensic auditors, the original FMV were not prepared under any fair market value standards that would be applicable for this type of report. In addition, at the same Board meeting, where the above bonus was approved, the Board voted to increase their own compensation from $250/meeting to $550/meeting.

4) The SMH Board circumvented Indian Preference in hiring, by allowing the Razaghi management company and other corporations to select and provide key management staff over the life of the 638 Contract (CEO, Chief Financial Officer (CFO), Human Resources, Chief of Clinical Services, Information Technology, Facility Superintendent, and Director of Nursing) as determined by the program review.

5) Historical and NAIHS audits noted that SMH Board allowed SMH to operate with material weaknesses and deficiencies in internal controls. The Board has no management personnel that are independent of Razaghi management company personnel reporting directly to the Board in key positions such as the CEO and CFO to provide checks and balances on the A. Razaghi management company activities (as well as other corporations associated with Mr. Razaghi) as determined by the program review and forensic audit. The forensic audit also identified lack of supporting records for Razaghi related company contracts or charges for services. The SMH board also restricted the scope of the forensic audit by not allowing auditors to perform interviews of management or board members and did not produce all requested records requested during the forensic audit.

6) The SMH Board has submitted multiple amended Form 990 tax returns and Medicare cost reports since 2010 which indicates issues relative to a lack of Board oversight and management internal controls. Additionally 990 tax returns do not fully disclose the compensation and relationship of the Razaghi related companies which may jeopardize the tax-exempt status of the organization or subject board members, officers, and management to penalties if the IRS determines this compensation was unreasonable resulting in excess benefit or private inurement. Also, cost reports may be in error if it is determined that Raza-ghi’s related companies qualified for cost reporting as entities under common ownership.

7) The Board has allowed the Purchased Referred Care program to operate in violation of Federally mandated regulations regarding program requirements.

8) The Board has failed to authorize sufficient funds to provide for an integrated functional health information (Electronic Health Record) system to meet patient service requirements, resulting in lost revenue opportunities.

9) The Board in FY 2014 failed to comply with I.R.S. Grants Management requirements for Special Diabetes Program Initiative funding resulting in a lost revenue opportunity.

NAIHS Report at 14-16.

7. The 1st Declination.

96. On September 19, 2014, Sage Hospital was unaware that Moss Adams had completed its audit report on July 25, 2014, and that the NAIHS had completed its performance monitoring review report on September 15, 2014. See El-Meligi 1st Decl. ¶ 7, at 6.

97. With the end of FY 2014 looming, and without a decision from the NAIHS regarding the 2013 Renewal or the 2014 AFA, Sage Hospital submitted a proposed three-year contract renewal and a successor AFA for FY 2015. See Renewal No. 1 and Amendment No. 1 to the Indian Self-Determination Act Contract Between Navajo Health Foundation/Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21-10)(“2014 Renewal”); Annual Funding Agreement Between Navajo Health Foundation — Sage Memorial Hospital, Inc. and the Secretary of the Department of Health and Human Services, filed January 13, 2015 (Doc. 21-10)(“2015 AFA”); El-Meligi 1st Decl. ¶ 6, at 6.

98. The 2015 AFA proposed that the NAIHS would fund Sage .Hospital at a total amount of $32,614,916.00, with $19,995,900.00 in base funding and $12,619,016.00 for direct and indirect contract support costs. See Letter from Christi-El-Meligi, Chief Executive Officer of Sage Hospital to Alva Tom, Acting Director of the Office of Indian Self-Determination (Sept. 19, 2014) at 2-3, filed January 13, 2015 (Doc. 21-10)(“E1-Meligi Ltr.”).

99. The NAIHS communicated its decision to decline the 2013 Renewal and 2014 AFA in a letter to Sage Hospital dated September 26, 2014, which Sage Hospital did not receive until September 29, 2014— one day before the end of FY 2014. See Letter from the Department of Health and Human Services to Stenson Wauneka, President of the Board of Directors of the Navajo Health Foundation (Sept. 26, 2014), filed December 22, 2014 (Doc. 17-l)(“lst Declination”); Katigbak 1st Decl. ¶ 4, at 35.

100. The 1st Declination explains the NAIHS’ decision as follows:

In its Proposal, [Sage Hospital (“NHF”)] seeks to enter into a three-year contract, Annual Funding Agreement, and ancillary agreements such as a supply contract with Gallup Regional Supply Service Center. For the reasons stated below, the NAIHS declines NHF’s Proposal in its entirety, based on declination criteria (A) and (C): “[T]he service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory,” and “the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract.” See 25 U.S.C. §§ 450f(a)(2)(A) & (C).

IHS has determined that NHF has failed to properly administer its current contract and AFA pursuant to the terms of ISDEAA and its own governing documents. In particular, the NAIHS has determined that the Board of Directors of NHF (Board) has failed to fulfill its fiduciary responsibilities to the hospital. The resulting waste and/or misuse of contract funds directly affects the ability of NHF to provide satisfactory services to the patients intended to be served by the contract. Accordingly, the NAIHS has determined that NHF is not able to properly maintain or complete the functions in the proposed contract and AFA.

1st Declination at 14-15.

101. As examples of Sage Hospital’s misconduct, the 1st Declination restates the NAIHS Report’s and the Moss Adams Report’s conclusions. See 1st Declination passim.

102. The 1st Declination also informed Sage Hospital that, given the nature and seriousness of the NAIHS’ concerns about Sage Hospital’s ability to properly manage federal funds, the NAIHS “does not believe that technical assistance could be provided at this time that would allow [Sage Hospital] to overcome the stated objections in this letter.” 1st Declination at 15.

103. The 1st Declination stated, however, that the NAIHS “is willing to provide technical assistance and work with the Navajo Nation with respect to future contracting concerning Sage Memorial Hospital.” 1st Declination at 15-16.

104. On or about September 29, 2014, Sage Hospital’s pharmaceutical supplier in Gallup — without notifying Sage Hospital and at the NAIHS’ direction — cut off Sage Hospital’s pharmaceutical supplies, endangering patient safety and causing Sage Hospital a significant cost increase. See El-Meligi 1st Decl. ¶ 10, at 7.

105.Sage Hospital responded to the 1st Declination with a letter dated October 2, 2014. See Letter from Stenson D. Wauneka, Chairman, Board of Directors, to John Hubbard, filed November 25, 2014 (Doc. 8-3)(“lst Declination Response”). In the 1st Declination Response, Sage Hospital demanded that the NAIHS immediately rescind the 1st Declination for the following reasons:

First and foremost, your purported Declination of Sage’s proposed Amendment No. 1 and Renewal No. 1 (“Renewal”) violates 25 C.F.R. § 900.33 and is invalid. The regulations are clear that where the proposed Renewal does not constitute a material and substantial change to the scope or funding of Sage’s PFSAs you do not have the authority to base the decision on performance concerns. The [Department of the Interior (“DOI”) ]/HHS Internal Agency Procedures Handbook specifically states that “[t]he T/TO’s performance under the existing contracts shall have no effect on the contract renewal process except as stated in 25 C.F.R. 900.33. (Any alleged grounds the agency may have for terminating the contract must be dealt with under Subpart P — Retrocession and Reassumption procedures ...).” Because Sage’s proposed Annual Funding Agreement for FY 2014 (“2014 AFA”) is substantially the same as the one approved for FY 2013, you are required to apply the standard under 25 C.F.R. § 900.32, which answers the question “Can the Secretary decline an Indian ... tribal organization’s proposed successor annual funding agreement?” with an unequivocal “NO.” Your refusal to provide Sage technical assistance under these circumstances also violates federal law. See 25 U.S.C. § 450f(b)(2). Your purported Declination violates the Act, your own regulations and internal guidance documents, and the congressional policy underlying the Aet, and is invalid.

1st Declination Response at 3.

106. On October 12, 2014, in a press release entitled “HHS Announces Change in Health Care Services for beneficiaries in the Ganado Service Area,” the NAIHS announced that it would “change how it is providing health care services to its beneficiaries in the Ganado Service Area who were formerly served by the Navajo Health Foundation — Sage Memorial Hospital (NHF-SMH),” and that it “no longer provides funding to NHF-SMH for delivery of health care services in Ganado.” NAIHS Announces Change in Health Care Services for Beneficiaries in the Ganado Service Area (Oct. 12, 2014) at 19, filed Feb. 5, 2015 (Doc. 36-l)(“Press Release”).

107. The Press Release also stated that the NAIHS’ staff had been working with the Navajo Nation and other NAIHS facilities to review and address the future delivery of health care services in the Ganado service area, and stated that NAIHS facilities in Chinle, Arizona; Fort Defiance, Arizona; and Gallup, New Mexico could provide healthcare services. See Press Release at 19.

108. Although the NAIHS and its staff never told Sage Hospital’s patients that Sage Hospital was closing, they did make it known that the hospital would no longer receive ISDEA funding. See Hubbard Decl. ¶ 14, at 8.

109. The NAIHS did not tell Ganado-area schools that Sage Hospital was closing. See Hubbard Decl. ¶ 14, at 8.

8. The 2nd Declination.

110. The NAIHS communicated its decision to decline the 2014 Renewal and the 2015 AFA in a letter to Sage Hospital dated December 12, 2014. See Letter from the Department of Health and Human Services to Stenson Wauneka, President of the Board of Directors of the Navajo Health Foundation (Dec. 12, 2014), filed December 22, 2014 (Doc. 17-l)(“2nd Declination”); Hubbard Decl. ¶ 16, at 8.

111. The 2nd Declination explained that the NAIHS would not agree to the 2014 Renewal and 2015 AFA for the same reasons that it declined the 2013 Renewal and 2014 AFA. See 2nd Declination passim.

112. Similar to the 1st Declination, the NAIHS noted that “it did not believe that technical assistance could be provided at this time that would allow [Sage Hospital] to overcome the objections stated in this letter.” 2nd Declination at 11.

113. The NAIHS added, however, that, “if [Sage Hospital] would like to discuss assistance that it believes NAIHS could provide that would eliminate the reasons for this declination, please call the Area office.” 2nd Declination at 12.

114. Aside from this line in the 2nd Declination, the NAIHS did not offer Sage Hospital any technical assistance from 2007 to the present. See El-Meligi 1st Deck ¶ 9, at 7; Razaghi Deck ¶ 19, at 27-28.

9. The 1st and 2nd Declination’s Repercussions.

115. The NAIHS funds provide approximately fifty-five percent of Sage Hospital’s revenues. See Katigbak 1st Deck ¶ 10, at 38.

116. Without a reversal of the 1st Declination, Sage Hospital will lose that revenue, while still performing its full array of healthcare services. See Katigbak 1st Deck ¶ 10, at 38.

117. Because of the 1st Declination, Sage Hospital has to purchase pharmaceutical supplies from commercial vendors rather than from the Gallup Regional Supply Service Center, a low-cost federal supplier. See El-Meligi 1st Deck ¶ 14, at 8.

118. The 1st Declination also forced Sage Hospital to purchase professional liability insurance for its doctors at a cost of approximately $50,000.00 per month rather than relying on the protections of the FTCA at no cost. See El-Meligi 1st Deck ¶ 11, at 7.

119. If injunctive relief is not promptly granted, Sage Hospital’s approximately 200 employees will likely lose their jobs by December 22, 2015. See El-Meligi 1st Decl. ¶ 15, at 9.

220. Cash-flow projections for FY 2014 — -which ends on September 30, 2015 — indicate that, if the 1st Declination is not reversed, Sage Hospital will be on the brink of insolvency before December 22, 2015. See Katigbak 1st Decl. ¶ 10, at 38-39.

PROCEDURAL BACKGROUND

Sage Hospital filed the Complaint on October 23, 2014. See Doc. 1 (“Complaint”). Sage Hospital filed the First Amended Complaint on November 24, 2014, asserting four causes of action. See Doc. 5 (“FAC”). First, Sage Hospital contends that the 1st Declination violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See FAC ¶55, at 23. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the 1st Declination; (ii) compel Burwell to award and fund the 2013 Renewal and the 2014 AFA; (iii) provide FTCA coverage for Sage Hospital and its employees; (iv) restore Sage Hospital’s ability to purchase pharmaceuticals and other supplies from its suppliers; and (v) cease the NAIHS’ public disparagement of Sage Hospital. See FAC ¶¶ 54-56, at 23-24. Sage Hospital points out that, because the ISDEA provides for both injunctive and mandamus relief to remedy violations of the IS-DEA and its implementing regulations, Sage Hospital does not need to prove the traditional equitable grounds for obtaining injunctive relief. See FAC ¶ 56, at 24.

Sage Hospital argues that, even if it had to demonstrate the traditional equitable grounds for obtaining injunctive relief, those traditional grounds are easily met here. See FAC ¶ 57, at 24. Sage Hospital contends that the 1st Declination is causing Sage Hospital immediate and irreparable injury, because it threatens to ruin Sage Hospital’s healthcare business, force it to close, and cause it to lose goodwill among its patients. See FAC ¶ 57A, at 24. Sage Hospital asserts that it will likely succeed on the merits of its case, because the Defendants clearly violated the IS-DEA and its promulgating regulations. See FAC ¶ 57B, at 24. Sage Hospital points out that 25 C.F.R. § 900.33 prohibits the NAIHS from declining to the 2013 Renewal based on performance concerns if there were no material and substantial changes to the scope or funding of Sage Hospital’s programs and services from the 2010 Contract. See FAC ¶ 57B, at 24. Sage Hospital asserts that 25 C.F.R. § 900.32 prohibits IHS from declining the 2014 AFA, because it is substantially the same as the one that the NAIHS approved for FY 2013. See FAC ¶ 57B, at 24. Sage Hospital says that the NAIHS’ refusal to provide Sage Hospital with technical assistance to address any relevant issues is “concededly in violation of 25 U.S.C. § 450f(b)(2).” FAC ¶578, at 24. Sage Hospital argues that the balance of hardships tips in its favor, because, while an injunction will merely require the Defendants to comply with federal law, the Court’s failure to order .an injunction will ruin Sage Hospital’s business and cause 200 Sage Hospital employees to lose their jobs. See FAC ¶ 57C, at 24. Sage Hospital asserts that an injunction will also be in the public interest, because it will allow American Indians to get much-needed and high-quality healthcare at Sage Hospital, rather than obtaining lower-quality healthcare at more distant NAIHS facilities. See FAC ¶ 57D, at 25.

Second, Sage Hospital contends that the 2nd Declination — to the extent that the 2014 Renewal and the 2015 AFA are substantially the same as the 2013 Renewal and 2014 AFA, respectively — violates 25 U.S.C.' § 450f(b)(2) and 25 C.F.R. §§ 900.32 and 900.33. See FAC ¶¶ 59-60, at 25. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the 2nd Declination — to the extent that the 2014 Renewal and the 2015 AFA are substantially the same as the 2013 Renewal and 2014 AFA, respectively; (ii) compel Burwell to award and fund the 2014 Renewal to the extent that it is substantially the same as the 2013 Renewal; (iii) provide FTCA coverage for Sage Hospital and its employees; (iv) restore Sage Hospital’s ability to purchase pharmaceuticals and other supplies from its suppliers; and (v) cease the NAIHS’ disparagement of Sage Hospital’s business. See FAC ¶¶ 61, at 25. Sage Hospital reiterates that, because the ISDEA provides for both injunctive and mandamus relief to remedy violations of the ISDEA and its implementing regulations, it does not need to prove the traditional equitable grounds for obtaining in-junctive relief. See FAC ¶ 61, at 25. Sage Hospital argues that, even if it had to demonstrate the traditional equitable grounds for obtaining injunctive relief, those grounds are easily met here. See FAC ¶ 62, at 25-26. Sage Hospital then reiterates the same arguments that it made for obtaining injunctive relief for the 1st Declination. See FAC ¶ 62, at 25-26.

Third, Sage Hospital asserts that, because it is entitled to immediate injunctive relief to reverse the 1st Declination and to compel Burwell to award and fund the 2013 Renewal, the Defendants are required to pay Sage Hospital the full amount requested in the 2014 AFA. See FAC ¶ 64, at 27. Sage Hospital contends that,.under 25 U.S.C. § 450m-l(a), it is entitled to an accounting of funds that the NAIHS provided to Sage Hospital from October 1, 2013, to the date of judgment. See FAC ¶ 66, at 27.

Fourth, Sage Hospital argues that the NAIHS violated 41 U.S.C. § 7103(f)(3). See FAC ¶¶ 67-72, at 27-29. Sage Hospital explains that, on August 25, 2014, it submitted to the NAIHS a Contract Support Costs claim for $62,569,681 (“Claim”) under the Contract Disputes Act, 41 U.S.C. §§ 7101, 7103, 7107, and 7109; and under §§ 101(a) and (d) of the ISDEA. FAC ¶ 68, at 27. According to Sage Hospital, the Claim specifies, for each fiscal year from 2009 to 2013, the total Contract Support Costs shortfall. See FAC ¶ 69, at 27-28. Sage asserts that the NAIHS responded to the Claim by “an inapplicable form letter,” dated October 23, 2014, that Dayish signed (“Oct. 23, 2014, Letter”). FAC ¶70, at 28. Sage Hospital contends that the proposed date for deciding the Claim — October 21, 2015 — is unreasonable, because the Claim and its exhibits provide all of the information that the NAIHS needs to decide the Claim. See FAC ¶ 71, at 28. Sage Hospital argues that, consequently, the Oct. 23, 2014, Letter violates 41 U.S.C. § 7103(f)(3). See FAC ¶ 71, at 28. Sage Hospital asks the Court to direct Dayish to issue a decision on the Claim in a specified period of time that the Court finds reasonable. See FAC ¶ 72, at 29.

1. The Motion.

Sage Hospital filed the Motion on December 22, 2014. See Motion at 1. In the Motion, Sage Hospital requests immediate injunctive relief under the ISDEA to: (i) reverse the 1st Declination and the 2nd Declination; and (ii) compel Burwell to award and fund the 2013 Renewal and the 2014 and 2015 AFAs. See Motion at 7. Sage Hospital argues that the NAIHS cannot refuse to renew a contract that is substantially the same as its predecessor. See Motion at 18 (citing 25 C.F.R. § 900.33 (“Are proposals to renew term contracts subject to the declination criteria? [HHS] will not review the renewal of a term contract for declination issues where no material and substantial change to the scope or funding of a program, functions, services, or activities has been proposed by the ... tribal organization.”)(modifications in Motion, but not § 900.33)(emphases omitted)). Sage Hospital asserts that, similarly, the NAIHS cannot decline a proposed successor AFA if it is substantially the same as its predecessor:

Can the Secretary decline an Indian tribe or tribal organization’s proposed successor annual funding agreement? No. If it is substantially the same as the prior annual funding agreement ... and the contract is with DHHS or the BIA, the Secretary shall approve and add to the contract the full amount of funds to which the contractor is entitled, and may not decline any portion of a successor annual funding agreement....

Motion at 19 (quoting 25 C.F.R. § 900.32)(modifications in Motion, but not § 900.32)(internal quotation marks omitted).

Sage Hospital asserts that, where a proposed AFA or contract renewal is not substantially the same as its predecessor, the ISDEA sets forth specific “declination criteria” — ie., conditions under which the NAIHS may decline a contract proposal:

[T]he 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 applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that—

(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;

(B) adequate protection of trust resources is not assured;

(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;

(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 450j-l(a) of this title; or

(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under paragraph (1) because the proposal includes activities that cannot lawfully be carried out by the contractor.

Motion at 19-20 (quoting 25 U.S.C. § 450f(a)(2))(internal quotation marks omitted).

According to Sage Hospital, § 450f(a)(2) provides the only permissible grounds for the NAIHS to decline a tribal organization’s contract proposal. See Motion at 20 (citing 25 C.F.R. § 900.22). Sage Hospital contends that courts do not give any deference to the IHS’ declination decisions, and that the NAIHS must prove its declination findings by clear and convincing evidence. See Motion at 20 (citing 25 U.S.C. § 450f(a)(2)); id. at 24 (citing S. Ute Indian Tribe v. Sebelius, 657 F.3d 1071, 1078 (10th Cir.2011); Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1344 (D.C.Cir.1996); Shoshone-Bannock Tribes of Fort Hall Reservation v. Shalala, 988 F.Supp. 1306, 1313 (D.Or.1997)). Sage Hospital asserts that, if the NAIHS may only properly decline a portion of a contract proposal, it must approve all other severable portions of the proposal. See Motion at 20-21 (citing 25 C.F.R. § 900.25). Sage Hospital argues that, even where the NAIHS may decline a proposal in whole or in part, it “shall ... provide assistance to the tribal organization to overcome the stated objections.” Motion at 21 (quoting 25 U.S.C. § 450f(b)(2))(omissions in Motion, but not in § 450f(b)(2))(internal quotation marks omitted).

Sage Hospital argues that, because the 2013 Renewal and the 2014 AFA are substantially the same as the 2010 Contract and 2013 AFA, respectively, §§ 900.32 and 900.33 requires the Defendants to approve those proposals. See Motion at 25-26 (citations omitted). Sage Hospital asserts that the IHS also violated the ISDEA when it failed to share information that may have helped Sage Hospital avoid the 1st Declination and refused to provide Sage Hospital with any technical assistance to overcome the NAIHS’ concerns. See Motion at 26 (citing 25 U.S.C. .§ 450f(b)(2); 25 C.F.R. §§ 900.28, 900.30). Sage Hospital adds, without further explanation, that “[t]he same is true” of the 2014 Renewal and the 2015 AFA to the extent that they are substantially the same as the 2010 Contract and the 2013 AFA. Motion at 26.

Sage Hospital next addresses the potential remedies available to the Court. See Motion at 27-30. Sage Hospital asserts that the ISDEA provides for: (i) money damages typically recoverable in contract actions, including consequential damages; (ii) contract support costs; (in) injunctive relief; and (iv) “mandamus to compel an officer or employee of the United States ... to perform a duty provided under [the ISDEA] (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract).” Motion at 26-27 (quoting 25 U.S.C. § 450m-l)(alterations in Motion, but not in § 450m-l)(emphases omitted)(internal quotation marks omitted). Sage Hospital contends that immediate injunctive and mandatory relief is necessary and appropriate in this case. See Motion at 27 (citing Guidance Endodontics, LLC v. Dentsply Intern., Inc., 633 F.Supp.2d 1257, 1277 (D.N.M.2008) (Browning, J.)(explaining that the loss of goodwill, customers, and future profits; the diminishment of competitive advantage in the market place; and impending bankruptcy are irrepara