Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell (220 F. Supp. 3d 1190, 2016)

United States District Court for the District of New Mexico 2016-11-23

Indians The Public Health and Welfare Government Organization and Employees

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiffs Motion for Summary Judgment on the Issue of Liability on Its Sixth Claim for Relief (Unlawful Declinar tion of Proposed FY 2016 AFA), filed July 29, 2016 (Doc. 196)(“ MSJ”). The Court held a hearing on September 16, 2016. The primary issues are: (i) whether the Defendants (collectively the “United States”) unlawfully declined to approve Plaintiff Navajo Health Foundation — Sage Memorial Hospital’s proposed successor fiscal year (“FY”) 2016 Annual Funding Agreement (“AFA”); and (ii) whether, if IHS unlawfully declined the FY 2016 AFA, the Court should order the United States to pay Sage Hospital the funds IHS allegedly owes it under the FY 2016 AFA.

FACTUAL BACKGROUND

“Sage is a Navajo tribal organization for purposes of contracting with the Indian Health Service (IHS) under the Indian Self-Determination and Education Assistance Act (ISDEA), 25 U.S.C. §§ 450, 450a et seq., that operates a health care facility in Ganado, Arizona, within the exterior boundaries of the Navajo Reservation.” MSJ ¶ 1, at 8 (stating this fact)(internal quotation marks omitted), See Response to Plaintiffs Motion for Summary Judgment on the Issue of Liability on Its Sixth Claim for Relief (Unlawful Declination of Proposed FY 2016 AFA) ¶ 1, at 1, filed August 15, 2016 (Doc. 210)(“Response”)(not disputing this fact). “IHS is an agency within the United States Department of Health and Human Services (“HHS”) and is responsible for providing federal health services to American Indians and Aaska Natives.” MSJ ¶ 2, at 4 (stating this fact). See Response ¶ 2, at 1 (not disputing this fact). “Defendant Burwell is the Secretary of HHS and has ultimate responsibility for carrying out all the functions, authorities, and duties of HHS including contracting on behalf of the United States with Indian tribal organizations under the ISDEA to provide health care to Native Americans.” MSJ ¶ 3, at 4 (stating this fact). See Response ¶3, at 1 (not disputing this fact).

Defendant Smith, substituted for Defendant [Yvette] Roubideaux under Fed. R. Civ. P. 25(d), is the Acting Director of the IHS and has the overall responsibility for carrying out all the functions, authorities, and duties of the IHS within HHS regarding contracting with Indian tribal organizations under the ISDEA to provide health care to Native Americans.

MSJ ¶ 4, at 4 (stating this fact). See Response ¶ 4, at 1 (not disputing this fact).

Defendant Peter, substituted for Defendant Hubbard under Fed. R. Civ. P. 25(d), is the Acting Area Director of the Navajo Area IHS (“NAIHS”) and has the responsibility for carrying out all the functions, authorities, and duties of the IHS within the Navajo Nation, including such functions,-■ authorities, and duties delegated to him regarding contracting with Indian tribal organizations under the ISDEA.

MSJ ¶5, at 4-5 (stating this fact). See Response ¶ 5, at 2 (not disputing this fact).

Defendant Shirley-Damon, substituted for Defendant Dayish under Fed. R. Civ. P. 25(d), is the Contracting Officer for the NAIHS and is responsible for IS-DEA contracts and funding agreements for IHS programs, functions, services, and activities (“PFSAs”) undertaken by ISDEA contractors within the Navajo Area IHS, including Sage. Dayish has the authority to sign ISDEA contracts and funding agreements with Sage for such IHS programs and to award funds pursuant to those agreements.

MSJ ¶ 6, at 5 (stating this fact). See Response ¶, at 2 (not disputing this fact).

“Effective in 2009 Sage contracted with IHS under the ISDEA.” MSJ ¶7, at 5 (stating this fact). See Response ¶ 7, at 2 (not disputing this fact). “Sage and IHS extended the 2009 contract without interruption for successive years, through September 30, 2013.” MSJ ¶ 8, at 5 (stating this fact). See Response ¶ 8, at 2 (not disputing this fact). “This Court deemed Defendants to have approved (a) Sage’s proposed three-year contract renewal for FY 2014-2016, (b) Sage’s proposed three-year contract renewal for FY2015-2017, (c) Sage’s proposed successor FY 2014 AFA, and (d) Sage’s proposed FY 2015AFA, and ruled that Sage’s proposals must be fully funded as proposed by Sage.” MSJ ¶ 9, at 5 (stating this fact). See Response ¶ 9, at 2 (not disputing this fact).

“Sage submitted its Proposed 2016 AFA (at issue in this motion) by letter dated May 28, 2015.” MSJ ¶ 10, at 5-6 (stating this fact). See Response ¶ 10, at 2 (not disputing this fact).

Such Proposed 2016 AFA was submitted in redline form, showing all the differences between it and the FY 2015 AFA that this Court held was deemed approved by Defendants in the Opinion. Those differences are confined to changes to the applicable years, non-substantive updates on pages 1 and 6 of the proposed AFA (Doc. 175-2 at 8, 13) and a change to the signature line of the agreement with the Gallup Regional Supply Service Center to reflect the replacement of former Sage CEO Ahmad Razaghi with current CEO Christi El-Meligi (Doc. 175-2 at 27).

MSJ ¶ 11, at 6 (stating this fact). See Response ¶ 11, at 2 (not disputing this fact). “The Proposed 2016 APA seeks the same amount of funding as approved under the FY 2016 AFA.” MSJ ¶ 12, at 6 (stating this fact). See Response ¶ 12, at 2 (not disputing this fact). “The Proposed 2016 AFA proposes to continue the same PFSAs as approved under the FY 2015 AFA.” MSJ ¶ 13, at 6 (stating this fact). See Response ¶ 13, at 2 (not disputing this fact).

“On October 26, 2015, the Navajo Area Indian Health Service (NAIHS) declined Sage’s proposed FY 2016 AFA.” Response at 2 (stating this fact). “NAIHS fully declined Sage’s proposal for two reasons: (1) because “the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory”; and (2) because “the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract.” Response at 2 (stating this fact).

The NAIHS also partially declined Sage’s proposal for three reasons: (1) because $8,760,323 of the proposed funding for the Secretarial amount was “in excess of the applicable funding level for the contract, as determined under [25 U.S.C. § 450j — 1(a) ] ...; (2) because the proposed funding amounts were not supported by the statutory requirements that apply to CSC amounts paid under the ISDEAA and, therefore, were “in excess of the applicable funding level ...; and (3) to the extent that the declined portion of the Secretarial amount had an impact on Sage’s CSC calculations, because such CSC amounts are “in excess of the applicable funding level” to which Sage is entitled ....

Response at 2-3 (stating this fact).

PROCEDURAL HISTORY

Sage Hospital moves for summary judgment on the issue of liability on its Sixth Claim for Relief, which alleges that the Indian Health Service unlawfully declined to approve Sage Hospital’s proposed 2016 AFA. See MSJ at 1. In an earlier opinion, the Court granted Sage Hospital summary judgment on its first three claims for relief, ruling that: (i) the United States unlawfully declined Sage Hospital’s proposed three-year renewal contracts for FY 2014-2016 and for FY 2016-2017; (ii) the United States unlawfully declined Sage Hospital’s proposed successor FY 2014 and 2016 AFAs; (iii) the United States had deemed these contracts and AFAs approved; and (iv) the United States should fully fund the contracts and AFAs. See Memorandum Opinion and Order, No. CIV 14-0958 JB/ GBW 55-91, filed August 31, 2015 (Doc. 96). The Court recounts prior proceedings insofar as they are directly relevant to the current MSJ.

1. The Plaintiff’s Motion for Summary Judgment on its First Three Claims for Relief.

On June 1, 2015, Sage Hospital moved the Court for summary judgment on its first three claims for relief. See Plaintiffs Motion for Summary Judgment on Its First Three Claims for Relief, With Memorandum of Supporting Points and Authorities, filed June 1, 2015 (Doc. 68)(“Motion”). The Motion addressed five issues. First, Sage Hospital said that, under the law-of-the-case doctrine, the Court’s holdings in Sage “‘govern the same issues in subsequent phases of the same case.’ ” Motion at 17 (quoting Mocek v. City of Albuquerque, 3 F.Supp.3d 1002, 1046 (D.N.M. 2014)(Browning, J.)). Sage Hospital noted that, among other things, the Court decided several legal issues of significance to the Motion:

First, the Court determined that Defendants may not lawfully decline a proposed contract renewal “ ‘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’ ” and that Defendants may not lawfully decline a proposed successor AFA if it is “‘substantially the same’ as its predecessor.” Id. at *34 (quoting 25 C.F.R. §§ 900.33, 900.32). Second, this Court ruled that a determination of whether a proposed contract renewal has any material and substantial changes and whether a proposed successor AFA is substantially the same as the prior AFA must be determined within the “four corners” of the contracts and AFAs. Id. at *51, *54; see id. at *50 (whether Secretary may apply declination criteria to proposed successor AFA “turns on the proposal’s contents rather than on a holistic assessment of the ... tribal organization’s performance of the existing AFA ... ”); *54 (IHS authority to decline contract renewal proposal is “strictly limited to the contract renewal proposal’s contents”). Third, if the Secretary can decline only a portion of a contract proposal, she must approve all other severable portions of the proposal. Id. at *34 (citing 25 C.F.R. § 900.25). Fourth, the prior decision found that, even assuming arguendo that the Declination Criteria applied, neither the Moss Adams Audit nor the IHS Performance Monitoring report provided any evidence to establish that Sage violated any federal regulations regarding program compliance necessary to support either of the two criteria invoked by IHS in its Declination. This Court reiterated that the Secretary bears the burden to show the propriety of any declination by clear and convincing evidence. Id. at *60.

Motion at 20-21.

Second, Sage Hospital argued that the ISDEAA required HHS to approve and fully fund the 2013 Renewal and the 2014 AFA, See Motion at 16-19. Sage Hospital explained that the HHS Secretary must fully fund a contract renewal proposal if “‘no material and substantial change to the scope or funding of a program, function, services, or activities [PFSAs] has been proposed by the tribal organization.’ ” Motion at 16 (alterations in Motion but not in quoted source)(quoting 25 C.F.R. § 900.33)(citing Sage, 100 F.Supp.3d at 1161-62, 1182-83 (holding .that the HHS Secretary’s authority to decline a contract proposal is “strictly limited to the contract renewal proposal’s contents”)). Sage Hospital said that, because the 2013 Renewal proposed no changes to Sage Hospital’s PFSAs or budget, HHS was legally required to award and fully fund it. See Motion at 22 (citing Sage, 100 F.Supp.3d at 1182 (“The 2013 Renewal proposes only minor amendments to update the 2013 Renewal for a new three-year term and to fix a few typographical errors. The 2013 Renewal offers no modifications to the provisions of the 2010 Contract that speak to the scope and funding of Sage Hospital’s PFSAs.”)).

Sage Hospital argued that, similarly, the HHS Secretary must approve and fully fund a proposed successor AFA that is “ ‘substantially the same’ ” as its predecessor. Motion at 22 (quoting 26 C.F.R. § 900.32)(citing Sage, 100 F.Supp.3d at 1161-62, 1179-80 (holding that the HHS Secretary should determine if the declination criteria apply based on the information within the “four corners”- of the AFA documents)). Sage Hospital explained that the 2013 AFA “was automatically amended, without an additional writing, to reflect any additional funding.” Motion at 23. Sage Hospital asserted that, because the 2014 AFA was substantially the same as the 2013 AFA, the ISDEAA required HHS to provide. $20,116,437.00 in funding to Sage Hospital for FY 2014. See Motion at 24. .

Third, Sage Hospital maintained that the ISDEAA required HHS to approve and fully fund the 2014 Renewal and the 2015 AFA. See Motion at 25. Sage Hospital asserted that its second proposed three-year contract renewal — under which the HHS would fund Sage Hospital through September 30, 2017 — proposed no changes to Sage Hospital’s PFSAs. See Motion at 25. Sage Hospital - contended that, accordingly, HHS must approve and fully fund it. See Motion at 25 (citing 25 C.F.R. § 900.33; Sage, 100 F.Supp.3d at 1182-83 (explaining that the HHS Secretary’s authority to decline a contract proposal is “strictly limited to the contract proposal’s contents”)). Sage Hospital then turned to the 2015 AFA and said that, although HHS “ha[d] not argued that Sage’s proposed 2015 AFA is not substantially the same as the prior 2014 or 2013 AFA,” the Court observed in the Sage opinion that the proposed 2015 AFA was 55% more than the funding specified in the 2013 AFA — -which, in the Court’s view, “suggests that the 2015 AFA is not substantially the same as the 2013 AFA.’” Motion at 26-27 (quoting Sage, 100 F.Supp.3d at 1166-67).

Sage Hospital contended that, even if the proposed 2015 AFA is not substantially the same as the 2013 AFA and HHS could apply the ISDEAA’s declination criteria to it, HHS “must invoke the particular criterion or criteria that she can justify with clear and convincing evidence.” Motion at 27 (citing Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d 1059, 1068 (D.S.D. 2007)(“Simply reciting the declination criteria is absolutely insufficient. The law requires a detailed explanation of the Secretary’s rationale for his decision and a disclosure of the facts or documents on which he relied for his decision.”)). Sage Hospital asserted that the IHS declined to enter into the proposed 2015 AFA, “‘for the same reasons IHS declined [Sage’s] August 23, 2013 Proposal, as articulated in IHS’s [1st Declination].’” Motion at 27 (first alteration in Motion but not in quoted source)(quoting 2d Declination at 11). Sage Hospital explained that the 1st Declination, in turn, invoked two of the ISDEAA’s declination criteria: (i) “ ‘the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory’”; and (ii) ‘“the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract.’ ” Motion at 28 (quoting 1st Declination at 3-4). Sage Hospital contended that IHS “did not even mention the only declination criterion that could arguably support its present litigation position”: that the “ ‘amount of funds proposed under the contract is in excess of the applicable funding level for the contract.’” Motion at 28 (quoting 25 U.S.C. § 450f(a)(2)).

Sage Hospital maintained that the IS-DEAA’s regulations prescribe the steps which the HHS Secretary must take to properly decline a proposed AFA:

The procedures in subpart E require the Secretary to make her declination within 90 days of her receipt of the proposal, 25 C.F.R. § 900.21; advise the tribal organization in writing of the Secretary’s objections and include a specific finding that clearly demonstrates that the basis for declination exists in that 90-day period, and provide any documents relied on in making that decision, 25 C.F.R. § 900.29; and offer technical assistance to the tribal organization to overcome the stated objection, 25 C.F.R. § 900.30.

Motion at 28-29. Sage Hospital asserted that Burwell “did none of this” in declining the proposed 2015 AFA. Motion at 29. Sage Hospital argued that the Court therefore should reverse the 2d Declination and compel Burwell to accept the 2015 AFA, and to “add to the contract the full amount proposed, Le., $32,614,916.” Motion at 29.

Fourth, Sage Hospital argued that both the 1st Declination and the 2d Declination “are illegal for IHS’ failure to provide technical assistance.” Motion at 29 (capitalization and bolding omitted). Sage Hospital said that this violation “provides an independent ground for reversing the declinations” of the 2013 Renewal, the 2014 AFA, the 2014 Renewal, and the 2015 AFA. Motion at 30 (citing Sage, 100 F.Supp.3d at 1161 (stating that, if the HHS Secretary declines a contract proposal, he or she must “provide assistance to the ... tribal organization to overcome the stated objections”); Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1068; 25 C.F.R. § 900.33). Sage Hospital asserted that “this basis for invalidating the Secretary’s actions depends on whether the Secretary could substantiate any such objections and prove them by clear and convincing evidence.” Motion at 30.

Fifth, and finally, Sage Hospital asked the Court to schedule a hearing on damages. See Motion at 30. Sage Hospital pointed out that the preliminary injunction which was in place at that time provided only prospective relief to Sage Hospital. See Motion at 30. Sage Hospital asserted that the ISDEAA provided a remedy in “‘money damages’” for Sage Hospital’s lost revenue. Motion at 31 (quoting Sage, 100 F.Supp.3d at 1163-64). Sage Hospital also noted that it had incurred other damages which HHS’ unlawful declination decisions caused, “including additional insurance costs, costs for pharmaceutical supplies, and employee turnover.” Motion at 31 (citations omitted). Sage Hospital said that the IS-DEAA permitted the award of consequential damages, “including lost third-party reimbursements and intangible damages.” Motion at 31 (citing Ramah Navajo Sch. Bd., Inc. v. Leavitt, No. CIV 07-0289 MV/SMV, Memorandum Opinion and Order at 61-72, filed May 9, 2013 (D.N.M.)(Vazquez, J.)(Doe. 143)). Sage Hospital said that the Court therefore should set a hearing on the issue of damage's. See Motion at 31.

2. The June 2015 Response.

Sylvia Máthews Burwell et al. (collectively the “Defendants”) responded to the Motion on July 6, 2015. See Defendants’ Response to Plaintiffs Motion for Summary Judgment on Its First Three Claims for Relief, filed July 6, 2015 (Doc. 80)(“June 2015 Response”). The June 2015 Response attacked the Motion on five grounds. First, the Defendants contended that Sage Hospital incorrectly argued that the Court’s holdings in the Sage opinion govern the Court’s resolution of the Motion. See June 2015 Response at 7 (citing Motion at 12).'The Defendants argued that the “ ‘district courts generally remain free to reconsider their earlier interlocutory orders. In fact, in the Tenth Circuit, law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another.’ ” Response at 7 (quoting Mocek v. City of Albuquerque, 3 F.Supp.3d at 1046)(emphasis omitted).

Second, the Defendants contended that, in the Sage opinion, the Court improperly had held that the canon of construction under which courts interpret ambiguous statutes and regulations in favor of American Indian tribes and tribal organizations trumped the deference typically afforded to an agency’s interpretation of its own regulations under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)(“Auer”). June 2015 Response at 7-8 (citing Sage, 100 F.Supp.3d at 1163-64, 1175-76). According to the Defendants, the Court then improperly had held that HHS’ interpretation of 25 C.F.R. §§ 900.32 and 900.33 — which allowed the Defendants to look beyond the four corners of Sage Hospital’s contract proposals to determine whether they were “substantially the same” as their predecessors — was not persuasive. June 2015 Response at 7-9 (citing Mashantucket Pequot Tribal Nation v. IHS, DHHS Departmental Appeals Board, Appellate Division, No. A-06-60, Decision No. 2028, 2006 WL 1337419 (May 3, 2006)(“Pequot”)). The Defendants asserted that the canon of Indian deference ‘“is inapplicable when the competing interests at stake both involve Native Americans.’ ” June 2015 Response at 8 (quoting Cherokee Nation of Okla. v. Norton, 241 F.Supp.2d 1374, 1380 (N.D. Okla. 2002)(citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 2328, 180 L.Ed.2d 187 (2011)(“The Government may also face conflicting obligations to different tribes or individual Indians.”); N. Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n.7, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976))(“[This] canon has no application here; the contesting parties are an Indian tribe and a class of individuals consisting primarily of tribal members.”); Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 n.4 (9th Cir. 1990)(“[T]he question here is not whether to favor Native Americans but which Native Americans to favor.”)).

The Defendants.explained that,

as the Court has found, investigation of Sage’s finances by the Navajo Area Indian Health Service (NAIHS) came about due to concerns within the Navajo Nation that Sage was misusing funding meant to protect its citizens’ health. As a news article reported, “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.’ ” This resolution was, according to the article, spurred by complaints of former Navajo employees of Sage who discovered financial discrepancies and voiced concerns that Sage was diverting money that should otherwise have been applied toward patient care. As this Court found, “[o]n 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,” Specifically, Mr. Hale was concerned “that, without a thorough investigation, ‘the Navajo Nation cannot be assured that funds designated for the health of its people are being properly managed.’” Accordingly, Mr. Hale requested NAIHS to conduct a performance monitoring review of Sage, which ultimately led to the declination decisions at issue in this case,

June 2015 Response at 8-9 (citations omitted). The Defendants argued that, because the interests of the Navajo nation and its members are at stake in this case, resolving it “is not a simple matter of deferring to a tribal organization’s litigation position over a federal agency’s interpretation of its own regulation.” June 2015 Response at 9. The Defendants asserted that the canon of Indian deference thus did not apply, and that HHS’ interpretation of §§ 900.32 and 900.33 should control “unless it is plainly erroneous or inconsistent with the regulation.” June 2015 Response at 9 (citing Utah v. Babbitt, 53 F.3d 1145, 1150 (10th Cm. 1995); Auer, 519 U.S. at 461, 117 S.Ct. 905).

Third, the Defendants asked the Court to revisit its holding in the Sage opinion that IHS’ “offer of technical assistance in the second declination letter was an ‘empty gesture.’ ” June 2015 Response at 10 (quoting Sage, 100 F.Supp.3d at 1143 n.19). The Defendants contended that the language in the 2d Declination was standard and “used by IHS in most declinations.” June 2015 Response at 10. The Defendants added that, although the Court faulted IHS for putting “‘the onus on Sage Hospital to identify what assistance it needed,’ the IS-DEAA and its regulations in fact do place the onus on the tribal organization to identify what assistance is needed.” June 2015 Response at 10 (emphasis in original). According to the Defendants, the ISDEAA required them to provide technical assistance to Sage Hospital only “‘upon the request of any tribal organization and subject to the availability of appropriations.’ ” June 2015 Response at 10 (quoting 25 U.S.C., § 450h(d)(3))(citing 25 C.F.R. § 900.28 (describing the HHS Secretary’s duty as providing “any necessary requested technical assistance” to avoid declination); 25 C.F.R. § 900.30 (same)). The Defendants asserted that “IHS will provide Sage with technical assistance at Sage’s request,” which complied fully with the ISDEAA. June 2015 Response at 11.

Fourth, the Defendants argued that, even if the declinations violated the IS-DEAA, the Court should not deem Sage Hospital’s contract proposals accepted. See June 2015 Response at 11. According to the Defendants, the ISDEAA provides that, upon receiving a contract proposal, the HHS Secretary “‘shall approve the proposal and award the. contract,’ unless she issues a decimation letter within 90 days of [receiving] the proposal.” June 2015 Response at 11 (quoting 25 U.S.C, § 450f(a)(2)). The Defendants asserted that the ISDEAA “is therefore very specific that the Secretary must decline a proposal within 90 days; if she does not, the contract must be awarded.” June 2015 Response at 11. The Defendants contended that similar language “is decidedly absent from the ofher provisions of law that Sage Hospital ■ claims were violated in this case” — for example, the requirement to provide technical assistance and the IS-DEAA’s prohibition of applying the Declination criteria to contract proposals which are substantially the same as their predecessors. June 2015 Response at 11 (citing 25 U.S.C. § 450f(b)(2); 25 C.F.R. §§ 900.32-.33). The Defendants asserted that “[t]his absence is telling” and that, “[p]articularly where the consequences are so severe (i.e., deemed approval of a contract), this Court should not read such penalties into the ISDEAA.” June 2015 Response at 11-12.

Fifth, the Defendants challenged Sage Hospital’s assertion that the ISDEAA requires them to fully fund Sage Hospital’s contract proposals. See June 2015 Response at 11. The Defendants pointed out that, when a contract proposal is deemed approved under the ISDEAA, the HHS Secretary must “ ‘add to the contract the full amount of funds pursuant to section 106(a) of the Act.’ ” June 2015 Response at 12 (quoting 25 C.F.R. § 900.18). The Defendants said that section 106, in turn, provides that the amount of funds under an ISDEAA contract ‘“shall not be less than the appropriate Secretary otherwise would have provided for the operation of the programs or portions thereof for the period covered by the contract’ ” — he., the Secretarial amount. June 2015 Response at 12 (quoting 25 U.S.C. § 450j-l(a)(l)). The Defendants asserted that Sage Hospital’s contract proposals “do not necessarily reflect that amount; the Secretary still has to review the proposal and determine the appropriate level of funding.” June 2015 Response at 12. The Defendants contended:

Thus, the remedy for violating the provisions in 25 C.F.R. §§ 900.32 and 900.33 should not be that Sage’s proposals are deemed accepted. The most Sage is entitled to on the strength of the Court’s April 9 findings is an order requiring the Secretary to review Sage’s proposals and fund them according to ISDEAA Section 106(a) within 90 days of the date of the order. The Court could also order the parties to return to the negotiating table and attempt to reach an agreement on the amount of funding Sage receives under Section 106(a). Likewise, the remedy for violating the technical assistance requirement should be an order requiring the Secretary to comply with the statute, he., provide Sage with technical assistance to overcome the stated objections.

June 2015 Response at 12. The Defendants added that the ISDEAA does not require the HHS Secretary to provide Sage Hospital the higher funding levels set forth in the proposed 2015 AFA. See June 2015 Response at 13. The Defendants asserted that Sage Hospital’s request for a permanent injunction ordering them to fully fund the proposed 2015 AFA “is akin to a request for mandamus, which is only available if there is a clear statutory command to perform a certain action.” June 2015 Response at 13 (citing Carpet, Linoleum & Resilient Tile Layers v. Brown, 656 F.2d 564, 566 (10th Cir. 1981)). The Defendants contended that, although the Sage opinion “arguably found that there is a statutory command” to enter into a contract with Sage Hospital, “there is no parallel command to fund the contract to the full extent requested by Sage.” June 2015 Response at 13. The Defendants also noted that, if Sage Hospital were to win summary judgment on Count I — which sought to impose a three-year contract that would expire in 2016 — then Count II — which sought to impose a three-year contract that would expire in 2017 — would be moot, because granting both requests would result in overlapping contracts. See June 2015 Response at 13.

Sixth, the Defendants argued that, if the Court were to deem all of Sage Hospital’s contract proposals approved, it should not order the Defendants to fund the 2015 AFA to the full extent requested. See June 2015 Response at 14. The Defendants said that, as the Court had noted, the 2015 AFA asked for substantially more funding than either the 2013 AFA or the 2014 AFA. See June 2015 Response at 14. The Defendants argued that an AFA is not substantially the same as its predecessor when it contains a “‘different proposed funding amount.’ ” June 2015 Response at 14 (quoting 25 C.F.R. § 900.32). The Defendants asserted that, accordingly, the portion of the 2015 AFA that requested funding in excess of the 2013 AFA was subject to the ISDEAA’s declination criteria. See June 2015 Response at 14.

In response to Sage Hospital’s argument that HHS “ ‘failed to predicate the declination of the proposed 2015 AFA on the basis that it sought a different funding amount,’” the Defendants argued that Sage Hospital “confuses the regulations, which explain when declination criteria may be invoked, with the decimation criteria themselves.” June 2015 Response at 14-15 (quoting Motion at 29). The Defendants asserted that

§ 900.29 requires the Secretary “[t]o advise the Indian tribe or tribal organization in writing of the Secretary’s objections, including a specific finding that clearly demonstrates that (or that is supported by a controlling legal authority that) one of the conditions set forth in § 900.22 exists.” Section 900.22, in turn, is the list of substantive declination criteria; it is not the limitations on using those criteria set forth in 25 C.F.R. § 900.32. The fact that the declination letter did not cite § 900.32 is therefore irrelevant.

June 2015 Response at 15.

The Defendants contended that Sage Hospital’s argument that the Court must approve the 2015 AFA, because Burwell did not furnish a decision on it within ninety days of receiving it, is “factually untrue.” June 2015 Response at 15. The Defendants pointed out that Sage Hospital submitted the proposed 2015 AFA on September 19, 2014, and IHS issued the 2d Declination on December 12, 2014 — eighty-four days later. See June 2015 Response at 15. The Defendants also attacked Sage Hospital’s argument that the 2d Declination violated the ISDEAA because it did not “invoke valid, applicable declination criteria, and did not offer technical assistance.” June 2015 Response at 15. The Defendants asserted that the sole basis for this argument was the Sage opinion, which consisted of preliminary findings only and listed a number of categories of evidence that the Defendants could present which might change the Court’s mind on those preliminary findings. See June 2015 Response at 15 (citing Sage, 100 F.Supp.3d at 1186-89). The Defendants argued that they would present that evidence “in a full hearing on the merits of its decimation proposal after completion of discovery.” June 2015 Response at 15 (citing Sage, 100 F.Supp.3d at 1167-68 (describing in detail the typical procedure in these cases — for example, holding a series of hearings and a six-day trial); Declaration of Angela M. Belgrove (dated July 6, 2015) ¶¶ 18-19, at 6, filed July 6, 2015 (Doc. 80-2)(“Belgrove Deck”)).

The Defendants contended that an assumption underlying Sage Hospital’s argument “seems to be that the Secretary not only had to explain her declination decision and set forth reasons, but also ... support that decision by clear and convincing evidence.” June 2015 Response at 16 (internal quotation marks omitted). The Defendants asserted that the ISDEAA “disproves that assumption,” because it requires only that a declination letter “‘contain[] a specific finding that clearly demonstrates that’ one or more declination criteria are applicable.” June 2015 Response at 17 (alterations in Response but not quoted source)(quoting 25 U.S.C. § 450f(a)(2)). The Defendants maintained that the 2d Declination contained “highly specific findings invoking applicable criteria”; it was not also required to demonstrate those findings with clear and convincing evidence. June 2015 Response at 17. The Defendants urged that the ISDEAA imposes the clear and convincing evidence standard “in the course of subsequent litigation, not the declination process.” June 2015 Response at 17. The Defendants argued that HHS is entitled to take discovery and justify its decimation decision with evidence at a full hearing. See June 2015 Response at 17. The Defendants contended that the Motion therefore was premature and that the Court should either deny it or defer ruling on it until after discovery and trial. See June 2015 Response at 17.

Seventh, and finally, the Defendants said that they did not oppose Sage Hospital’s request for a hearing on the issue of damages so long as it occurs after the completion of discovery and “after the entry of final judgment on the declination decision.” June 2015 Response at 17. The Defendants argued that, at this point, Sage Hospital’s purported damages “are supported by conclusory, untested affidavits.” June 2015 Response at 17. The Defendants maintained that they were entitled to take the affiants’ depositions and request all relevant documents. See June 2015 Response at 17. They added that delaying a decision on damages until the trial date scheduled at that time for early April 2015 would not prejudice Sage Hospital, because it would continue to receive roughly $1.5 million in funding per month until trial. See June 2015 Response at 17.

3. The July 2015 Reply.

Sage Hospital replied to the Response on July 20, 2015. See Plaintiffs Reply to Defendants’ Response to Plaintiffs Motion for Summary Judgment on its First Three Claims for Relief, filed July 20, 2015 (Doc. 85)(“July 2015 Reply”). Sage Hospital reiterated that the Sage opinion resolved many of the legal disputes that the Defendants raised in the June 2015 Response. See July 2015 Reply at 7. Sage Hospital contended that the law-of-the-case doctrine posits that, “ ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” July 2015 Reply at 9 (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). Sage Hospital argued that the Defendants had not provided any proper justification for the Court to revise its rulings in the Sage opinion. See July 2015 Reply at 9.

Sage Hospital said that the Defendants’ main argument — which was that the Indian canon does not apply in this case and that the Court instead should defer to HHS’ interpretation of the ISDEAA’s regulations — is “erroneous.” July 2015 Reply at 10. Sage Hospital explained that this dispute is between IHS and Sage Hospital, and no other tribal interests are involved. See July 2015 Reply at 5. According to Sage Hospital, IHS “satisfied the request of Navajo Nation Council delegate Hale to investigate Sage’s finances, and there is no indication that the Navajo Nation has lingering concerns.” July 2015 Reply at 5 (citing Declaration of Alton Joe Shepherd (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41-4)(“Shepherd Decl.”); Declaration of Kee Allen Begay, Jr. (dated Feb. 6,2015), filed February 11,2015 (Doc. 41-4)(“Begay Decl.”); Declaration of Lee Jack, Sr. (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41-4)(“Jack Decl.”); Declaration of Raymond Smith Jr. (dated Feb. 6, 2015), filed February 11, 2015 (Doc. 41-4)(“Smith Deck”)). Sage Hospital contends that IHS “essentially posits that any dispute over money involving a tribal organization that is not universally esteemed or any dispute with IHS that threatens a reduction of funding for other tribal organizations pits Indian against Indian.” July 2015 Reply at 10 (citing Response at 8-9). Sage Hospital argued that, if the Defendants were correct, the Indian canon would be “rendered largely nugatory” in declination disputes with the IHS, contrary to Congress’ intent and Tenth Circuit law. July 2015 Reply at 10 (citing Sage, 100 F.Supp.3d at 1168-65).

Sage argued that the Court’s interpretation of §§ 900.32 and 900.33 in the Sage opinion not only properly applied the Indian canon, but also was consistent with the ISDEAA, the ISDEAA’s implementing regulations, and Sage Hospital’s ISDEAA contract. See July 2015 Reply at 10 (citing 25 U.S.C. § 450Z(c)(“Each provision of the Indian Self-Determination and Education Assistance Act ... and each provision of this Contract shall be liberally construed for the benefit of the Contractor to transfer the funding and the following related functions, services, activities, and programs .... ”); 2010 Contract at 14 (providing a similar provision); 25 C.F.R. § 900.3(a)(5)(“Congress has further declared that each provision of the Act and each provision of contracts entered into thereunder shall be liberally construed for the benefit of the tribes or tribal organizations to transfer the funding and the related functions, services, activities, and programs ..,.”); 25 C.F.R. § 900.3(b)(ll)). Sage Hospital said that “[tjhere is simply no basis for IHS’ contention that th[e] Court erred in not deferring to ... an unpublished administrative decision in a case distinguishable in several major respects.” July 2015 Reply at 11 (citing Sage, 100 F.Supp.3d at 1173-81 & n.26).

Next, Sage Hospital challenged the Defendants’ assertion that ordering the Defendants to approve and fund the 2013 Renewal and the 2014 AFA would moot Sage Hospital’s request that the Court order the Defendants to approve and fund the 2014 Renewal and the 2015 AFA. See July 2015 Reply at 11. According to Sage Hospital, “[sjtandard principles of contract law ..-. dictate otherwise.” July 2015 Reply at 12 (citation and internal quotation marks ■ omitted). Sage argued that, “ ‘[wjhen two parties execute a second contract that deals with the same subject matter as the first, the two contracts must be interpreted together; insofar as the contracts are inconsistent, the later one prevails.’ ” July 2015 Reply at 12 (quoting K & V Sci. Co., Inc. v. BMW, 164 F.Supp.2d 1260, 1263 (D.N.M. 2001)(Black, J.), rev’d on other grounds, 314 F.3d 494 (10th Cir. 2002)). Sage Hospital said that, in New Mexico, this concept is known as the merger doctrine. See July 2015 Reply at 12 (citing K & V Sci. Co., Inc. v. BMW, 164 F.Supp.2d at 1263 n.2). Sage Hospital asserted that, accordingly, if the Court were to order the Defendants “to execute the first contract renewal, that contract will be merged into the second renewal proposal, with the net effect of extending the contract an additional year (through September 30, 2017) and establishing the funding for FY 2015 at $32,614,916.” July 2015 Reply at 12 (citing Mobil Oil Expl. & Producing S.E., Inc. v. United States, 530 U.S. 604, 607-08, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000)(explaining that, when the United States enters into contracts, the law applicable to contracts between private individuals generally governs the United States’ rights and duties)).

Sage Hospital reiterated that Burwell did not validly decline the proposed 2014 Renewal and the 2015 AFA within ninety days of their submission. See July 2015 Reply at 12-13. Sage Hospital said that, once it filed the 2014 Renewal and the 2015 AFA, IHS had ninety days to decline them “to the extent the proposed funding is ‘in excess of the applicable funding level for the contract’” as determined under § 450j-l(a) of the ISDEA. July 2015 Reply at 14 (citations omittedXquoting 25 U.S.C. § 450f(a)(2)(D)). Sage Hospital argued that IHS did not cite that criterion for declining the proposals, but instead invoked the same inapposite reasons for declining the 2014 Renewal and the 2015 AFA as it did for the 2013 Renewal and the 2014 AFA. See July 2015 Reply at 14 (citing 2d Declination at 13-16; Sage, 100 F.Supp.3d at 1182-83). Sage Hospital asserted that, if HHS believed the amount of funds Sage Hospital sought were excessive, it had the ability and the duty to invoke — within the ninety-day period which the ISDEAA prescribes — the one declination criterion that would apply: Sage Hospital’s contract proposal was in excess of the applicable funding level. See July 2015 Reply at 14 (citing Seneca Nation of Indians v. HHS, 945 F.Supp.2d 135, 150 (D.D.C. 2013)). Sage Hospital contended that, in Seneca Nation of Indians v. HHS, the

Seneca Nation had proposed an increase of $3,774,392 over the $7,802,211 that it had been awarded the year before, a 48% increase, 945 F.Supp.2d at 137-39. Much as IHS argues here, IHS argued in Seneca that the tribe should not get a “windfall” due to a “procedural technicality,” id. at 150; that such “windfall” would come at the expense of other tribal organizations, id. at 151; that the court should get into the weeds on the validity of the tribe’s calculations, id. at 151-52; and that the court should “evaluate the bargain the parties have struck through their Contract and operation of law,” id. at 151-52. The Seneca court rejected all of those arguments, ruling that the propriety of the tribe’s increased funding request “is á matter properly addressed through contract-negotiations or through declination of the proposed amendment pursuant to 25 U.S.C. § 450f(a)(2) if the Secretary truly believed the amount was unsupported.” Id. at 152. In ruling the tribe’s contract approved at the higher funding level as proposed, the court rejected the “Secretary’s argument that she was not obligated to give a timely response of the precise type of- response articulated by the statute,” he., the one declination criterion specifically addressed to the funding level. Id. at 150 (emphasis added).

July 2015 Reply at 14-15. Sage Hospital says that other decisions are in accord. See July 2015 Reply at 15 (citing Cheyenne River Sioux Tribe v. Kempthorne, 496 F.Supp.2d at 1068; Maniilaq Ass’n v. Burwell, 72 F.Supp.3d 227, 239-41 (D.D.C. 2014); Yurok Tribe v. Dep’t of the Interior, 785 F.3d 1405, 1408 (Fed. Cir. 2015); Crownpoint Inst. of Tech. v. Norton, No. CIV 04-0531 JP/DJS, Findings of Fact and Conclusions of Law, filed Sept. 16, 2005 (D.N.M.)(Parker, J.)(Doc. 86) (“Crownpoint”)).

Sage Hospital argued that the ISDEAA and its regulations reflect Congress’ intent that tribal organizations have potent rights and effective remedies for the IHS’ unlawful declination decisions. See July 2015 Reply at 16 (citing Sage, 100 F.Supp.3d at 1179-81). Sage Hospital contended that, although the Defendants argued that the ISDEAA does not establish an enforceable duty to fund Sage Hospital’s contract proposals, the ISDEAA

itself ... stat[es] that the Court may “compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this sub-chapter or regulations promulgated hereunder (including immediate injunc-tive relief to reverse a declination finding ... or to compel the Secretary to award and fund an approved self-determination contract).”

July 2015 Reply at 17 (alterations in Reply but not in quoted source)(quoting 25 U.S.C. § 450m-l(a)). Sage Hospital maintains that it is therefore entitled to such relief. See July 2015 Reply at 17.

Sage Hospital reiterated that IHS violated § 900.30 by refusing to provide Sage Hospital technical assistance before declining Sage Hospital’s contract proposals. See July 2015 Reply at 17. Sage Hospital stated that, contrary to the Defendants’ contentions, “the requirement for IHS to provide technical assistance does not require a request from the tribal contractor.” July 2015 Reply at 17. Instead, Sage Hospital argued, the applicable regulation states:

When the Secretary declines all or a portion of a proposal, is the Secretary required to provide an Indian tribe or tribal organization with technical assistance?

Yes. The Secretary shall provide additional technical assistance to overcome the stated objections, in accordance with section 102(b) of the Act, and shall provide any necessary requested technical assistance to develop any modifications to overcome the Secretary’s stated objections.

July 2015 Reply at 17 (bold in original; italics in Reply but not in original)(quoting 25 C.F.R. § 900.30). Sage Hospital asserted that the Defendants omitted the first half of this regulation when they quoted it in the June 2015 Response. See July 2015 Reply at 17. Sage Hospital asserted that the Defendants were not entitled to obtain evidence on this issue through discovery, because, “if there is any evidence that IHS offered technical assistance before December 12, 2014 (or at any time thereafter) it would be in IHS’ possession!” July 2015 Reply at 13.

Sage Hospital said that the Defendants’ argument that summary judgment was premature at this stage of the case “ignores the Court’s prior rulings on the applicable law and does not satisfy the requirements of Fed. R. Civ. P. 56(d).” July 2015 Reply at 19. Sage Hospital contended that, under rule 56(d), the Defendants must: (i) file an affidavit; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts; (iii) explain why facts precluding summary judgment cannot be presented; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment. See July 2015 Reply at 19-20. Sage Hospital argued that the Belgrove Decl. had not satisfied these requirements, noting that “[i]t is not enough for IHS to say that facts necessary to oppose summary judgment are unavailable or are in Sage’s exclusive control.” July 2015 Reply at 20-21. Sage Hospital asserted that one of the issues mentioned in the Belgrove Deck was relevant to whether the contents of Sage Hospital’s contract proposals “significantly differ from that of their predecessors or show how discovery would justify either the retroactive use of a declination criterion not invoked when IHS rejected [the 2015 AFA] or validate the use of the two criteria that IHS did invoke.” July 2015 Reply at 23. Sage Hospital said that, because the Court had confined its inquiry in resolving the Motion to the “four comers” of Sage Hospital’s contract proposals, “discovery by IHS into other issues is unnecessary.” July 2015 Reply at 20. Sage Hospital conceded, however, that IHS was entitled to discovery limited to the issue of damages, and clarifies that it was not seeking an injunction ordering IHS to cease its disparagement of Sage. See July 2015 Reply at 23.

4. The July 2015 Hearing.

The Court held a hearing on July 31, 2015. See Transcript of Hearing (taken July 31, 2015), filed August 12, 2015 (Doc. 94)(“2015 Tr”). The hearing was relatively short, with the parties largely sticking to their briefing. The parties raised a few new issues, however. First, Sage Hospital explained that the Defendants had not served it with any discovery requests. See 2015 Tr. at 8:15-19 (Frye). The Defendants said that they had not requested any discovery, because they believed that the Court could resolve three issues at the summary-judgment stage: (i) whether the 2014 AFA and the 2013 Renewal were substantially the same as the 2010 Contract and the 2013 AFA; (ii) whether Sage Hospital’s claim that the Defendants unlawfully declined the 2014 Renewal and the 2015 AFA were moot if the Court were to grant Sage Hospital the requested relief regarding the 2013 Renewal and the 2014 AFA;' and (iii) if Sage Hospital’s claims regarding the 2014 Renewal and the 2015 AFA were not moot, whether those proposals were substantially the same as the 2010 Contract and the 2013 AFA. See 2015 Tr. At 32:22-25 (Grohman). The Defendants explained that, if the Court were to hold that Sage Hospital’s claims regarding the 2014 Renewal and 2015 AFA were not moot, but were to determine that those proposals were not substantially the same as the 2010 Contract and the 2013 AFA, there remained a fourth issue: whether the Defendants properly applied the Declination criteria to the 2014 Renewal and 2015 AFA. See 2015 Tr. at 33:10-18 (Groh-man). The Defendants said that, because they “don’t have endless resources,” they did not want to attempt to obtain discovery on the fourth issue before litigating the Motion if the Court’s resolution of the Motion would make discovery on the fourth issue irrelevant. 2015 Tr. at 34:11-16 (Grohman). The Defendants noted, however, that if the Court were to hold that Sage Hospital’s claims regarding the 2014 Renewal and 2015 AFA were not moot, but were to determine that those proposals were not substantially the same as the 2010 Contract and the 2013 AFA, it should allow the Defendants to obtain discovery and proceed to trial on the whether they properly applied the Declination criteria to the 2014 Renewal and 2015 AFA. See 2015 Tr. At 33:20-34:3 (Grohman).

Second, the parties and the Court took up what the Defendants asserted was “the biggest mistake or error that [the Court] made in the [Sage] opinion” — that the Indian canon trumps Auer deference. 2015 Tr. at 18:1-3 (Court). The Defendants reiterated the argument from the Response that, when American Indians’ interests are pitted against each other in a case, the Indian canon is inapplicable. See 2015 Tr. at 19:23-20:7 (Grohman). Although the Defendants initially said that Auer deference applies to agencies’ interpretations of regulations stated in legal briefs filed at the district court level, see 2015 Tr. at 21:2-22:10 (Grohman)(citing Qwest Corp. v. Colo. Pub. Utils. Comm’n, 656 F.3d 1093 (10th Cir. 2011)), they later clarified that they are not “asking [the Court] to defer to the brief [, but are instead] asking for deference for the Secretary’s interpretation, as expressed in an administrative decision, and the same consistent interpretation expressed in legal briefs in this case,” 2015 Tr. at 44:1-6 (Court, Grohman). Sage Hospital countered that it “can’t see the Indians on the other side of our case. I see the Indian Health Service, ... a federal agency], but] I don’t see any other Indians.” 2015 Tr. at . 38:20-23 (Frye). Sage Hospital reiterated that the ISDEAA, its regulations, Sage Hospital’s ISDEAA contract, and Tenth Circuit authority require the Court to apply the Indian canon. See 2015 Tr. At 40:20-23 (Frye).

The Defendants replied that Sage Hospital’s contractual argument is erroneous, because the parties “don’t have a contract,” and the Court is not being asked to interpret a provision of an existing contract between the parties. 2015 Tr. at 44:19 (Grohman). The Defendants asserted that the ISDEAA’s regulations are similarly in-apposite, because “[i]f a tribe and a tribal organization are at odds, there is not a clear-cut picture of who to defer to.” 2015 Tr. at 44:24-45:1 (Grohman). The Defendants explained:

The fact that the Navajo Nation’s internal politics are complicated, I think, only underscores that it would be very difficult to determine who should be deferred to here. Is it individual council members? Is it the Ganado Chapter that passed a resolution asking Sage to leave? It’s — you know, this is not the business of federal courts. And this is what the Tenth Circuit is saying; that when you have internal disputes, the Canon of Deference simply has no role to play.

2015 Tr. at 45:2-11 (Grohman). With the final word on the matter, Sage Hospital asserted that, even if the Court were to conclude that the Indian canon does not trump Auer deference, HHS’ interpretation of § 900.32 in the Pequot decision was “plainly inconsistent with the plain language of the regulations.” 2015 Tr. at 45:20-24 (Frye).

Third, addressing Sage Hospital’s merger argument — that the Court essentially could combine the 2013 Renewal, the 2014 Renewal, the 2014 AFA, and the 2015 AFA — the Defendants stated that the merger doctrine applies only when parties execute two contracts and requires courts to read those two contracts together. See 2015 Tr. at 50:8-10 (Grohman). The Defendants contended that the merger doctrine is irrelevant, because “[n]o contracts have been executed,” and “IHS’s intent is not to enter into a contract.” 2015 Tr. at 50:11-13. The Defendants said that the issue is: “[I]f IHS and Sage are deemed to have a contract running from 2013 to 2016, should they also be deemed to have this contract for an overlapping term from 2014 to 2017?” 2015 Tr. at 50:14-17 (Grohman). The Defendants contended that Sage Hospital improperly proposed the 2015 AFA when it no longer was under contract with IHS. See 2015 Tr. at 50:20-51:11 (Groh-man). Sage Hospital clarified that it still was under contract with the IHS when it proposed the 2015 AFA, because it was “getting ... monthly letters from the IHS that are in the record saying, [w]e are going to extend your contract through this period.” 2015 Tr. at 51:21-52:6 (Frye).

5. The Notice.

Sage Hospital filed the Supplemental Authorities on Issue of Deference on August 10, 2015 (Doc. 93)(“Notice”). In the Notice, Sage Hospital clarified a few issues from the hearing. First, Sage Hospital addressed the Defendants’ argument that the Court should defer to the HHS’ interpretation of ISDEAA regulations set forth in their briefing. See Notice at 2.

Sage cites Investment Co. Inst. v. Camp, 401 U.S. 617 [91 S.Ct. 1091, 28 L.Ed.2d 367] (1971), as supplemental authority on this issue. The Supreme Court stated that “counsel for the Comptroller in the course of this litigation and specifically in his briefs and oral argument in this Court, has rationalized the basis of Regulation 9 with great professional competence. But this is hardly tantamount to an administrative interpretation of §§ 16 and 21 [of the Glass-Steagall Act, 48 Stat. 162].... Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” Id. at 627-28 [91 S.Ct. 1091]; accord, e.g., Pitzak v. Office of Personnel Management, 710 F.2d 1476, 1479 n.2 (10th Cir. 1983)(argument made in a brief by counsel for agency is not an official interpretation by the agency and not entitled to deference as such); Church of Scientology of Calif. v. I.R.S., 792 F.2d 153, 162 n.4 (D.C. Cir. 1986)(en banc) (“There is some question, to begin with, whether an interpretive theory put forth only by agency counsel in litigation, which explains agency action that could be explained on different theories, constitutes an ‘agency position’ for purposes of Chevron. ... Whatever position counsel was taking, one thing is clear: it is impossible to find here the sort of clear and consistent agency view (even as purportedly expressed by counsel) that must be given deference.”)(Scalia, J.); Doc. 41-5 at 3 of 4 (DOI/IHS Internal Agency Procedures Handbook, providing, contrary to Defendants’ gloss on the Pequot administrative decision, that the tribal organization’s “performance under the existing contract shall have no effect on the contract renewal process except as stated in 25 C.P.R. § 900.33.... Note in particular that renewal of term contracts with the IHS and the BIA where there are no material and substantial changes proposed will not be reviewed under the declination criteria.”)(emphases added). Sage “proposed” no material and substantial changes in its contract renewal applications.

Notice at 2-3 (alterations in Notice but not in quoted sources)(emphases in Notice but not in quoted source).

Second, Sage Hospital clarified that, although the Defendants said at the hearing that, when Sage Hospital submitted. the 2014 Renewal and 2015 AFA, “no contracts had been executed,” two of Sage Hospital’s exhibits suggest otherwise. Notice at 3 (brackets omitted)(citing 2014 Renewal; Letter from Floyd Thompson, Executive Officer of the Navajo Area Indian Health Service to Ahmad Razaghi, Chief Executive Officer of Navajo Health Foundation — Sage Memorial Hospital, Inc. (dated July 11, 2014) at 26, filed June 1, 2015 (Doc. 68-l)(“July 11, 2014, Ltr.”)). Third, and finally, Sage Hospital noted that, although the Defendants had stated at the hearing that they had been funding Sage Hospital from “January to October” of 2015 pursuant to the Sage opinion, the Court issued that opinion on April 9, 2015, and the Defendants had provided prospective funding to Sage Hospital only from that date. Notice at 3-4 (citations and internal quotation marks omitted).

6. Sage Hospital’s Current MSJ.

Sage Hospital asserts that it submitted the Proposed 2016 AFA on May 28, 2015, see MSJ at 2, and that the United States declined Sage Hospital’s Proposed 2016 AFA on October 26, 2015, see MSJ at 2. According to Sage Hospital, the Proposed 2016 AFA is substantially the same as the FY 2015 AFA that the Court deemed the United States to have approved. See MSJ at 3. Sage Hospital argues, therefore, that the Court should also deem the Proposed 2016 AFA approved under 25 C.F.R. § 900.32’s plain language and under the Court’s reasoning in its earlier opinion. See MSJ at 3, 9. Sage Hospital further argues that the Court should determine damages that arose from the declination and should award those damages to Sage Hospital during the trial scheduled for October 2016, See MSJ at 3.

7. United States’ Response.

The United States filed its Response on August 15, 2016. See Response to Plaintiffs Motion for Summary Judgment on the Issue of Liability on the Sixth Claim for Relief (Unlawful Declination of Proposed FY 2016 AFA), filed August 15, 2016 (Doc. 210)(“Response”). The United States agrees with Sage Hospital that the Court’s Memorandum Opinion and Order concerning Sage Hospital’s Motion for Summary Judgment on its First Three Claims for Relief prohibits the HHS Secretary from considering the statutory declination criteria with respect to a successor AFA if that successor AFA is substantially the same as the prior AFA. See Response at 4. The United States notes, however, that the Court also held, conversely, that the Secretary may consider the statutory declination criteria with respect to a successor AFA proposal if that successor is not substantially the same as the prior AFA. See Response at 4. According to the United States, determining whether successive AFAs are “substantially the same” requires juxtaposing the two documents and determining whether their text is substantially similar. Response at 4.

According to the United States, Sage Hospital fails to address key questions that undermine its assertion that Sage Hospital is automatically entitled to full funding of its 2016 AFA proposal. See Response at 5. The United States argues that Sage Hospital errs when it assumes that the Court’s deemed approval of the FY2015 AFA proposal equates to there being a prior funding agreement as 25 C.F.R. § 900.32 uses that term. See Response at 5. The United States maintains that Sage Hospital fails to demonstrate that the remedy that the Court previously awarded to Sage Hospital equates to an AFA and that the ISDEAA regulation defining that term does not suggest that it equates to an AFA. See Response at 5. As the United States sees it, the ISDEAA regulation, 25 C.F.R. § 900.06, defines an annual funding agreement as “a document that represents the negotiated agreement of the Secretary to fund, on an annual basis, the programs, services, ac