Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell (256 F. Supp. 3d 1186, 2015)

AMENDED MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiff’s 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 Court held a hearing on July 31, 2015. The primary issues are: (i) whether the Court’s conclusions of law in Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell, 100 F.Supp.3d 1122 (D.N.M.2015)(Browning, J.)("Sage”), bind the Court at the summary-judgment stage; (ii) whether the Court should grant summary judgment in favor of Plaintiff Navajo Health Foundation — Sage Memorial Hospital, Inc. on Count I of the Second Amended Complaint, filed June 30, 2015 (Doc. 79)(“SAC”), which asks the Court to deem approved the 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”), and the 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”); (iii) whether the Court should grant summary judgment in favor of Sage Hospital on Count II of the SAC, which asks the Court to deem approved 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”), and the 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)(“2016 AFA”); and (iv) whether the Court should grant summary judgment in favor of Sage Hospital on Count III of the SAC, which asks the Court for an accounting of funds that the Defendants provided Sage Hospital from October 1, 2013, to the date of judgment. The conclusions of law in the Sage opinion do not bind the Court at the summary-judgment stage, and the Court is free to consider those issues anew. The Court will, however, grant summary judgment in favor of Sage Hospital on Counts I, II, and III, and determine Sage Hospital’s damages on those counts at trial. Accordingly, the Court will grant the Motion.

FACTUAL BACKGROUND

“Sage is a Navajo tribal organization] for purposes of contracting with the Indian Health Service CIHS’)[] under the IS-DEA[] that operates a health care facility-in Ganado, Arizona, within the exterior boundaries of the Navajo Reservation.” Motion ¶ 1, at 3 (setting forth this fact). See Defendants’ Response to Plaintiffs Motion for Summary Judgment on its First Three Claims for Relief ¶ 1, at 2, filed July 6, 2015 (Doc. 80)(“Re-sponse”)(not disputing this fact); First Amended Complaint ¶ 6, at 4, filed November 24, 2014 (Doc. 5)(“FAC”)(setting forth this fact); id. ¶ 19, at 9-10 (setting forth this fact); Answer ¶ 6, at 2, filed February 19, 2015 (Doc. 45)(“Answer”)(admitting this fact); id. ¶ 19, at 3 (admitting 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 Alaska Natives.” Motion ¶ 2, at 4 (setting forth this fact). See Response ¶ 2, at 2 (not disputing this fact); About IHS, filed December 29, 2014 (Doc. 17-1). “Defendant [Sylvia Mathews] 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.” Motion ¶ 3, at 4 (setting forth this fact). See Response ¶ 3, at 2 (not disputing this fact); FAC ¶ 7, at 4 (setting forth this fact); Answer ¶ 7, at 2 (admitting this fact).

Defendant [Robert] McSwain, 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.

Motion ¶ 4, át 4 (setting, forth this fact). See Response ¶ 4, at 2 (not disputing this fact); FAC ¶ 8, at 4 (setting forth -this fact); Answer ¶ 8, at 2 (admitting this fact).

Defendant [John] Hubbard is the 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 IS-DEA.

Motion ¶6, at 4 (setting forth this fact). See Response ¶ 5, at 2 (not disputing this fact); FAC ¶ 8, at 4 (setting forth this fact); Answer ¶ 9, at 2 (admitting this fact). “Defendant [Frank] Dayish is the Contracting Officer for the NAIHS and is responsible for ISDEA contracts and funding agreements for IHS programs, functions, services, and activities (‘PFSAs’) undertaken by ISDEA contractors within the Navajo Area IHS, including Sage.” Motion ¶ 6, ’ at 5 (setting forth this fact). See Response ¶ 6, at 2 (not disputing this fact); FAC ¶ 10, at 4-5 (setting forth this fact); Answer ¶ 10, at 2 (admitting this fact). “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.” Motion ¶ 6, at 5 (setting forth this fact). See Response ¶ 6, at 2 (not disputing this fact); FAC ¶ 10, at 4-5 (setting forth this fact); Answer ¶ 10, at 2 (admitting this fact).

1. Sage Hospital’s ISDEA Contract with the IHS.

“Effective in- 2009[,] Sage contracted with IHS under the ISDEA.” Motion ¶ 7, at 5 (setting forth this fact). See Response ¶ 7, at 2 (not disputing this fact); FAC ¶ 19, at 9-10 (setting forth this fact); Answer ¶ 19, at 3 (admitting this fact).

The 2009 contract included the following PFSAs: (1) Inpatient Services, (2) General Ambulatory and Speciality Care Services, (3) Emergency Department, (4) Emergency Medical Transport, (5) Dental Clinic, (6) Podiatry Clinic, (7) Optometry Clinic, (8) Behavioral Health Services, (9) Radiology, (10) Pharmacy, (11) Laboratory, (12) Physical Therapy, (13) Public Health Nursing, (14) Employee Health Services, (15) Health Education, (16) Transportation Services, (17) School Based Services, (18) Diabetes Program, and (19) Traditional Medicine.

Motion ¶ 8, at 5 (setting forth this fact). See Response ¶ 8, at 2 (not disputing this fact); FAC ¶ 20, at 10 (setting forth this fact); Answer ¶20, at 3 (admitting this fact). “Sage and IHS extended the 2009 Contract without interruption for successive years, through September 30, 2013.” Motion ¶ 9, at 5 (setting forth this fact). See Response ¶ 9, at 2 (not disputing this fact); FAC ¶ 21, at 10 (setting forth this fact); Answer ¶21, at 3 (admitting this fact); 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”); 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”); Declaration of Christi El-Meligi ¶ 4, at 1 (dated May 28, 2015), filed June 1, 2015 (Doc. 68-l)(“El-Meligi 2d Decl.”).

“Sage proposed a three-year ISDEA contract renewal and [Annual Funding Agreement (‘AFA’) ] for fiscal year (‘FY’) 2014 to IHS by letter dated August 22, 2013.” Motion ¶ 11, at 6 (setting forth this fact). See Response ¶ 11, at 2 (not disputing this fact); FAC ¶ 21, at 11-12 (setting forth this fact); Answer ¶ 21, at 3 (admitting this fact); Letter from Ahmad R. Razaghi, Chief Executive Officer of Navajo Health Foundation — Sage Memorial Hospital, Inc., to Ava Tom, Acting Director of the Office of Indian Self-Determination at the Navajo Area Indian Health Service (dated Aug. 22, 2013), filed January 13, 2015 (Doc. 21-3)(“Aug.22, 2013, Ltr.”); 2013 Renewal; 2014 AFA; El-Meligi 2d Decl. ¶ 4, at l. “Sage proposed [funding] for FY 2014 of $20,738,846.... ” Motion ¶ 15, at 6 (setting forth unmodified version of this fact). See Aug. 22, 2013, Ltr. at 3. “IHS did not approve or disapprove Sage’s proposed three-year contract renewal under the ISDEA [until September 26, 2014]. IHS opted instead to provide Sage funding on a monthly basis during the conduct of an IHS Performance Monitoring Review (‘Review’) and a forensic audit (‘Audit’) conducted by Moss Adams LLP.” Motion ¶ 16, at 7 (setting forth unmodified version of this fact). See FAC ¶ 22, at 11 (setting forth this fact); Answer ¶ 22, at 3 (admitting this fact).

“As of September 19, 2014, IHS and Sage had extended the FY 2011-2013 IS-DEA contract and-FY 2013 AFA through September 30, 2014.” Motion ¶ 17, at 7. See Response ¶ 17, at 3 (not disputing this fact); El-Meligi 2d Decl. ¶ 6, at 2; 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 Sept. 17, 2013), filed June: 1, 2015 (Doc. 68-l)(“Sept.l7, 2013, Ltri”). “With the end'of fiscal year 2014 looming and without an indication from IHS as to IHS’ plans regarding Sage, Sage was unsure as to the status and acceptability to IHS of its proposed three-year contract renewal proposal for the period ending September 30, 2016.” Motion ¶ 17, at 7 (setting forth this fact). See El-Meligi 2d Decl. ¶ 7, at 2-3. “Thus, to.avoid any gap in the contract period, Sage submitted a second proposed three-year contract renewal ending September 30, 2017 and proposed FY 2015 AFA to IHS via letter dated September 19, 2014.” Motion ¶ 18, at 7 (setting forth this fact). See 2014 Renewal; 2015 AFA; El-Meligi 2d Decl. ¶ 4, at 1-2.

“Sage proposed an increase in funding for FY 2015 from [its requested amount of] $20,116,437 [in the 2013 AFA] ... and $20,738,846 (in the proposed FY 2014 AFA) to $32,614,916 for FY 2015.” Motion ¶ 22, at 8 (setting forth unmodified version of this fact). See El-Meligi.Decl. ¶¶ 6-7, at 2-3; 2015 AFA .at 3-4. “Sage explained its reasons for the increased funding proposal at pages 3-4 of its September 19, 2014 letter to IHS.” Motion ¶23, at 8 (setting forth this fact) (citation omitted). 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)(“Sept. 19, 2014, Ltr.”); El-Meligi 2d Decl. ¶ 7, at 2-3. “In addition, the proposed increase in Contract Support Costs (‘CSC’) funding was based on use of the incurred cost method adopted by IHS rather than amounts agreed to in FY 2013 and earlier, which had substantially underfunded Sage’s CSC.” Motion ¶23, at 8 (setting forth this fact). See El-Meligi 2d Decl. ¶ 7, at 2-3.

2. The IHS’ Declinations of Sage Hospital’s Contract Proposals.

“One day before the end of FY 2014, on September 29, 2014, IHS hand-delivered a letter dated September 26, 2014 (the ‘Declination’) to Sage. The Declination relied on and included as attachments the July 25, 2014 Moss Adams Audit and the September 15, 2014 IHS Review.” Motion ¶ 24, at 9 (setting forth these facts). See Response ¶24, at 4 (not disputing these facts); FAC H 26, at 12 (setting forth these facts); Answer ¶ 26, at 3 (admitting these facts); Letter from the Department of Health and. Human Services to Stenson Wauneka, President óf the Board of Directors of the Navajo Health Foundation (dated Sept. 26, 2014), filed January 13, 2015 (Doc. 21 — 12)(“lst Declination”). “The [1st] Declination declined to approve Sage’s proposed three-year ISDEA contract renewal through December 30, 2016.” Motion ¶ 25, at 9 (setting -forth this fact). See Response ¶ 25, at 4 (not disputing this fact); FAC ¶ 1 at 1 (setting forth this fact); Answer ¶ 1, at 1 (admitting this fact); Declination at 1. “The [1st] Declination concluded that IHS should ‘sever[ ]’ the IHS/ Sage contractual relationship.” Motion ¶ 26, at 9 (setting forth this fact)(quoting 1st Declination at 32). See Response ¶ 26, at 4 (not disputing this fact); Declination at 32.

“IHS then formally declined Sage’s second three-year contract renewal proposal and FY 2015 AFA, by letter dated December 12, 2014.” Motion ¶ 27, at 9 (setting forth this fact). See Response ¶ 27, at 4 (not disputing this fact); Letter from the Department- of Health and Human Services’ to Stenson Wauneka, President of the Board of Directors of the Navajo Health Foundation (dated Dec. 12, 2014), filed December 22, 2014 (Doc. 17-l)(“2d Declination”); El-Meligi 2d Decl. ¶ 4, at 1-2. “IHS declined to approve: the proposed second three-year contract renewal and FY 2015 AFA for the same reasons that it had declined the first contract renewal proposal (through September 30, 2016) and Sage’s proposed 2014 AFA.” Motion ¶ 27, at 9 (setting forth this fact). See Response ¶ 27, at 4 (not disputing this fact); 2d Declination at 11. “IHS expressly acknowledged it was statutorily required to offer technical assistance to Sage to overcome the stated grounds for the declinations but IHS expressly declined to do so.” Motion ¶28, at 9 (setting forth this fact). See 1st Declination at 9-10; 2d Declination at 11-12.

3. The 1st and 2d Declinations’ Repercussions.

“On or about September 29, 2014, IHS instructed the Gallup Regional Service and Supply Center (‘GRSSC’) to cease delivering pharmaceuticals to Sage, at a substantial cost to Sage.” Motion ¶ 29, at 10 (citations omitted). See Declaration of Christi El-Meligi ¶ 10, at 7 (dated Dec. 22, 2014), filed December 22, 2014 (Doc. 17-1)(“E1-Meligi 1st Decl.”); FAC ¶44, at 20 (setting forth this fact); Answer ¶ 44, at 6 (admitting this fact). “The Declination left Sage without Federal Tort Claims Act coverage for malpractice claims as of October 1, 2014 at additional cost to Sage.” Motion ¶ 30, at 10 (setting forth this fact). See El-Meligi 1st Decl. ¶ 11, at 7. “The Declination caused at least one of Sage’s employees to lose certain federal loan repayment benefits and, as a result, that employee left employment with Sage, causing additional cost to Sage.” Motion ¶ 31, at 10 (setting forth this fact). See El-Meligi 1st Decl. ¶ 13, at 8; Electronic Mail Transmission from Benjamin Ward to Christi El-Meligi and Human Resources (dated Dec. 11, 2014), filed December 22, 2014 (Doc. 17-l)(“Dec. 11, 2014, e-mail”). “The Decimation caused Sage to lose a federal grant and other grant opportunities.” Motion ¶ 32, at 10 (setting forth this fact). See El-Meligi 2d Decl. ¶8, at 3. “The Declination has caused Sage to incur other consequential and intangible damages, including significant out of pocket costs and expenses and damage to Sage’s business reputation and good will.” Motion ¶ 33, at 10 (setting forth this fact). See El-Meligi 2d Decl. ¶ 8, at 3.

PROCEDURAL BACKGROUND

Sage Hospital filed suit on October 23, 2014, see Complaint, filed October 23, 2014 (Doc. 1), and filed the SAC on June 30, 2015. Sage Hospital asserts five causes of action. First, Sage Hospital contends that the IHS’ declination of the 2013 Renewal violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See SAC ¶¶ 52-55, at 24-25. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the IHS’ declination of the 2013 Renewal; (ii) compel Burwell to award and fund the 2013 Renewal; (iii) provide coverage for Sage Hospital and its employees under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(“FTCA”); (iv) restore Sage Hospital’s ability to purchase pharmaceuticals and other supplies from its suppliers; and (v) cease the IHS’ public disparagement of Sage Hospital. SAC ¶¶ 56, at 25-26. Sage Hospital points out that, because the ISDEA provides for both injunctive and mandamus relief, it does not need to establish the traditional equitable grounds for obtaining injunctive relief. See SAC ¶ 56, at 25-26.

Sage Hospital argues that, even if has to demonstrate the traditional equitable grounds for obtaining injunctive relief, those traditional grounds are easily met. See SAC ¶ 57, at 26-27. Sage Hospital contends that the IHS’ declination of the 2013 Renewal 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 its patients’ good will. See SAC. ¶ 57A, at 26. Sage Hospital asserts that it will likely succeed on the case’s merits, because the Defendants clearly violated the ISDEA and its implementing regulations. See SAC ¶ 57B, at 26. Sage Hospital points out that 25 C.F.R. § 900.33 prohibits the IHS from declining to renew Sage Hospital’s ISDEA contract based on performance concerns to the extent that there were no material and substantial changes to the scope or funding of Sage Hospital’s programs and services. See SAC ¶ 57B, at 26. Sage Hospital asserts that 25 C.F.R. § 900.32 prohibits the IHS from declining Sage Hospital’s proposed 2014 AFA, because that proposed agreement is substantially the same as the 2013 AFA See SAC ¶ 57B, at 26. Sage Hospital says that the IHS’ refusal to provide Sage Hospital with technical assistance to address the IHS’ concerns is “concededly in violation of 15 U.S.C. § 450f(b)(2).” SAC ¶ 57B, at 26. 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 two hundred Sage Hospital employees to lose their jobs. See SAC ¶ 57C, at 27. 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 IHS facilities. See SAC ¶ 57D, at 27.

Second, Sage Hospital contends that the IHS’ declination of the 2014 Renewal — to the extent that it is substantially the same as the 2013 Renewal — violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See SAC ¶¶ 59-60, at 27. Sage Hospital asks the Court for immediate in-junctive relief to: (i) reverse the IHS’ declination of the 2014 Renewal to the extent that it is substantially the same as the 2013 Renewal; (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 IHS’ disparagement of Sage Hospital’s business. See SAC ¶61, at 27-28. 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 injunctive relief. See FAC ¶ 61, at 27-28. Sage Hospital argues that, even if it has to demonstrate the traditional equitable grounds for obtaining injunctive relief, those grounds are easily met for the 2014 Renewal for the same reasons that they are met for the 2013 Renewal. See SAC ¶ 62, at 28-29.

Third, Sage Hospital asserts that, because it is entitled to immediate injunctive relief to reverse the IHS’ declination of the 2014 Renewal, and to compel the Defendants to award and fund that proposal, the Defendants, are required to pay Sage Host pital the full amount which the 2014 AFA requests. See SAC ¶ 64, at 29. Sage,Hospital contends that, under the ISDEA, it-is entitled to an accounting of funds that the IHS provided to Sage Hospital from October 1, 2013, to the date of judgment. See SAC ¶ 66, at 30.

Fourth, Sage Hospital argues that IHS violated the Contract Disputes Act, 41 U.S.C. §§ 7101-09 (“CDA”). See SAG ¶¶ 67-72, at 30-32. Sage Hospital explains that it submitted its Contract Support Costs claim on August 25, 2014.. (the “Claim”). SAC ¶ 68, at 30. According to Sage Hospital, its claim specifies, for each FY from 2009 to 2013, Sage Hospital’s total CSC shortfall. ■ See FAC ¶ 69, at 30. Sage Hospital asserts that IHS responded to the Claim with, “an inapplicable form letter,” and that the IHS’ proposed date for deciding the Claim — October 21, 2015 — is unreasonable, because the Claim and its exhibits provide all of the information that the IHS needs to decide the Claim. SAC .¶¶ 70-71, at 30-31. >. Sage Hospital argues that, consequently, the letter violates the CDA. See SAC' ¶ 71, at 31. Sage Hospital, accordingly, asks the Court to direct the IHS to issue a decision on the Claim in a specified period of time that the Court finds reasonable. See SAC ¶ 72, at 31-32.-.

Fifth, and finally, Sage Hospital asserts that the Defendants violated the ISDEA by failing to pay the full amount of Sage Hospital’s CSC for FY 2009 through FY 2013. See SAC ¶ 76, at 32. Sage Hospital contends that the Defendants owe Sage Hospital $36,258,493 in CSC and $26,311,188 in lost third-party revenues— totaling $62,569,681 plus interest. .See SAC ¶¶ 76-79, at 32.-33, Sage Hospital says that, in .a Memorandum Opinion and Order, filed June. 17, 2015 (Doc. 73)(“MOO”), the Court deemed, the Claim denied, because of Dayish’s failure to set forth a date certain by which he would decide the claim. SAC ¶ 79, at 33.

1. The Motion.

Sage Hospital filed the Motion on June 10, 2015, seeking summary judgment on Counts I through III of the SAC. The Motion addresses five issues. First, Sage Hospital says 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 notes 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 [1161] *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 [1179-80, 1182-83] *51, *54; see id. at [1179] *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 ...”); [1183] *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 [1161-62] *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 [1188-89] *60.

Motion at 20-21.

Second, Sage Hospital argues that the ISDEA requires Burwell to approve and fully fund the 2013 Renewal and the 2014 AFA. See Motion at 16-19. Sage Hospital explains 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 says that, because the 2013 Renewal proposes no changes to Sage Hospital’s PFSAs or budget, Burwell is 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 argues 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 25 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 explains that the 2013 AFA “was automatically amended, without an additional writing, to reflect any additional funding.” Motion at 23. Sage Hospital asserts that, because the 2014 AFA is substantially the same as the 2013 AFA, the ISDEA requires Burwell to provide $20,116,437 in funding to Sage Hospital for FY 2014. See Motion at 24.

Third, Sage Hospital maintains that the ISDEA requires Burwell to approve and fully fund the 2014 Renewal and the 2015 AFA, See Motion at 25. Sage Hospital asserts that its second proposed three-year contract renewal — under which the Defendants would fund Sage Hospital through September 30, 2017 — proposes no changes to Sage Hospital’s PFSAs. See Motion at 25. Sage Hospital contends that, accordingly, Burwell must approve and fully fund it. See Motion at 25 (citing 25 C.F.R. § 900.33; Sage, 100 F.Supp.3d at 1183 (explaining that the HHS Secretary’s authority to decline a contract proposal is “strictly limited to the contract proposal’s contents”)). Sage Hospital then turns to the 2015 AFA and says that, although the Defendants “have 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 contends that, even if the proposed 2015 AFA is not substantially the same as the 2013 AFA and Burwell could apply the ISDEA’s Declination criteria to it, Burwell “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 asserts 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 explains that the 1st Declination, in turn, invoked two of the ISDEA’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 contends that the IHS “did not even mention the only decimation 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 maintains that the IS-DEA’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 asserts that Burwell “did none of this” in declining the proposed 2015 AFA. Motion at 29. Sage Hospital argues that the Court should therefore reverse the 2d Declination, and compel Burwell to accept the 2015 AFA and to “add to the contract the full amount proposed, ie., $32,614,916.” Motion at 29.

Fourth, Sage Hospital argues 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 for readability). Sage Hospital says 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 1161-62 (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; 26 C.F.R. § 900.38). Sage Hospital asserts that “this basis for invalidating the Secretary’s actions does not depend 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 asks the Court to schedule a hearing on damages. See Motion at 30. Sage Hospital points out that the preliminary injunction which is currently in place provides only prospective relief to Sage Hospital. See Motion at 30. Sage Hospital asserts that the ISDEA provides 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 notes that it has incurred other damages which the Defendants’ unlawful decimation decisions caused, “including additional insurance costs, costs for pharmaceutical supplies, and employee turnover.” Motion at 31 (citations omitted). Sage Hospital says that the ISDEA permits 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.)(Doc. 143)). Sage Hospital says that the Court should therefore set a hearing on the issue of damages. See Motion at 31.

2. The Response.

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 (Doe. 80)(“Response”). The Response attacks the Motion on five grounds. First, the Defendants contend that Sage Hospital incorrectly argues that the Court’s holdings in the Sage opinion govern the Court’s resolution of the Motion. See Response at 7 (citing Motion at 12). The Defendants argue 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 contend that, in the Sage opinion, the Court improperly 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”). Response at 7-8 (citing Sage, 100 F.Supp.3d at 1163-64, 1175-76). According to the Defendants, the Court then improperly held that Burwell’s 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. 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 1337439 (May 3, 2006)(“Pequot”)). The-Defendants assert that the canon of Indian deference “ ‘is inapplicable when the competing interests at stake both involve Native Americans.’” 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 explain 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.

Response at 8-9 (citations''omitted). 'The Defendants argue 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.” 'Response at 9. The Defendants assert that the canon of Indian deference thus does not apply, and that Burwell’s interpretation of §§ 900.32 and 900.33 should control “unless it is plainly erroneous or inconsistent with the regulation.” Response at 9 (citing Utah v. Babbitt, 53 F.3d 1145, 1150 (10th Cir.1995); Auer, 519 U.S. at 461, 117 S.Ct. 905).

Third, the Defendants ask the Court to revisit its holding in the Sage opinion that the IHS’ “offer of'technical assistance in the second declination letter was an ‘empty gesture”” Response at 10 (quoting Sage, 100 F.Supp.3d at 1143 n. 19). The Defendants contend that the language in the 2d Declination is standard and “uséd by IHS in most declinations.” Response at 10. The Defendants add that, although the Court faulted IHS for putting “ ‘the onus on Sage Hospital to identify what assistance it needed,’ the TSDEAA and its regulations in fact do place the onus on the tribal organization to identify what assistance is needed.” Response at 10 (emphasis in original). According to the Defendants, the ISDEA required them to provide technical assistance to-Sage Hospital only “ ‘upon the request of any tribal organization and subject to the availability of appropriations.’ ” 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 assert that “IHS will provide Sage with technical assistance at Sage’s request,” which complies fully with the ISDEA. Response at 11.

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

Fifth, the Defendants challenge Sage Hospital’s assertion that the ISDEA requires them to fully fund Sage Hospital’s contract proposals. See Response at 11. The Defendants point out that, when a contract proposal is deemed approved under the ISDEA, the HHS Secretary must ‘“add to the contract the full amount of funds pursuant to section 106(a) of the Act.’ ” Response at 12 (quoting 25 C.F.R. § 900.18). The Defendants say that § 106, in turn, provides that the amount of funds under an ISDEA contact- “ ‘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’” — i.e., the Secretarial amount. Response at 12 (quoting 25 U.S.C. § 450j-l(a)(l)), The Defendants assert 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.” Response at 12. The Defendants contend:

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, ie., provide Sage with technical assistance to overcome the stated objections.

Response at 12. The Defendants add that the ISDEA does not require the HHS Secretary to provide Sage Hospital the higher funding levels set forth in the proposed 2015 AFA, See Response at 13. The Defendants assert 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.” Response at 13 (citing Carpet, Linoleum & Resilient Tile Layers v. Brown, 656 F.2d 564, 566 (10th Cir.1981)). The Defendants contend 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.” Response at 13. The Defendants also note that, if Sage Hospital wins summary judgment on Count I — which seeks to impose a three-year contract that expires in 2016 — then Count II — which seeks to impose a three-year contract that expires in 2017 — is moot, because granting both requests would result in overlapping contracts. See Response at 13.

Sixth, the Defendants argue that, if the Court deems 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 Response at 14. The Defendants say that, as the Court has noted, the 2015 AFA asks for substantially more funding than either the 2013 AFA or the 2014 AFA. See Response at 14. The Defendants argue that an AFA is not substantially the same as its predecessor when it contains a “ ‘different proposed funding amount.’ ” Response at 14 (quoting 25 C.F.R. § 900.32). The Defendants assert that, accordingly, the portion of the 2015 AFA that requests funding in excess of the 2013 AFA is subject to the ISDEA’s Declination criteria. See Response at 14.

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

Response at 15.

The Defendants contend 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.” Response at 15. The Defendants point out that Sage Hospital submitted the proposed 2015 AFA on September 19, 2014, and the IHS issued the 2d Declination on December 12, 2014 — eighty-four days later. See Response at 15. The Defendants also attack Sage Hospital’s argument that the 2d Declination violated the ISDEA because it did not “invoke valid, applicable declination criteria, and did not offer technical assistance.” Response at 15. The Defendants assert that the sole basis for this argument is 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 Response at 15 (citing Sage, 100 F.Supp.3d at 1186-89). The Defendants argue that they would present that evidence “in a full hearing on the merits of its declination proposal after completion of discovery.” 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 Decl.”)).

The Defendants contend 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.” Response at 16 (internal quotation marks omitted). The Defendants assert that the ISDEA “disproves that assumption,” because it requires only that a decimation letter “‘contain[] a specific finding that clearly demonstrates that’ one or more declination criteria are applicable.” Response at 17 (alterations in Response but not quoted sourceXquoting 25 U.S.C. § 450f(a)(2)). The Defendants maintain that the 2d Declination contains “highly specific findings invoking applicable criteria”; it was not also required to demonstrate those findings with clear and convincing evidence. Response at 17. The Defendants urge that the ISDEA imposes the clear and convincing evidence standard “in the course of subsequent litigation, not the declination process.” Response at 17. The Defendants argue that Burwell is entitled to take discovery and justify her declination decision with evidence at a full hearing. See Response at 17. The Defendants contend that the Motion is therefore premature and the Court should either deny it or defer ruling on it until after discovery and trial. See Response at 17.

Seventh, and finally, the Defendants say that they do 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.” Response at 17. The Defendants argue that, at this point, Sage Hospital’s purported damages “are supported by conclusory, untested affidavits.” Response at 17. The Defendants maintain that they are entitled to take the affiants’ depositions and request all relevant documents. See Response at 17. They add that delaying a decision on damages until the current trial date — which is in early April 2015 — would not prejudice Sage Hospital, because it will continue to receive roughly $1.5 million in funding per month until trial. See Response at 17.

3. The 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)(“Reply”). Sage Hospital reiterates that the Sage opinion resolved many of the legal disputes that the Defendants raise in the Response. See Reply at 7. Sage Hospital contends 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.’” Reply at 9 (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir.1991)). Sage Hospital argues that the Defendants have not provided any proper justification for the Court to revise its rulings in the Sage opinion. See Reply at 9.

Sage Hospital says that the Defendants’ main argument — which is that the canon of Indian deference does not apply in this ease and that the Court should instead defer to the HHS’ interpretation of the ISDEA’s regulations — is “erroneous.” Reply at 10. Sage Hospital explains that this dispute is between the IHS and Sage Hospital, and no other tribal interests are involved. See Reply 'at 5. According to Sage Hospital, the 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.” 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)(“Jaek Decl.”); Declaration of Raymond Smith Jr. (dated Feb. 6, 2015), filed February 11,2015 (Doc. 41-4)(“Smith Decl.”)). Sage Hospital contends that IHS “essentially posits that any dispute over money inyolving 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.” Reply at 10 (citing Response at 8-9). Sage Hospital argues that, if the Defendants were correct, the canon of Indian deference would be “rendered largely nugatory” in declination disputés with the IHS, contrary to Congress’ intent and Tenth Circuit law. Reply at 10 (citing Sage, 100 F.Supp.3d at 1163-65).

Sage argues that the Court’s interpretation of §§ 900.32 and 900.33 in the Sage opinion not only properly applied the canon of Indian deference, but was also consistent with the ISDEA, the ÍS-DEA’s implementing regulations, and Sage Hospital’s ISDEA contract. See Reply at 10 (citing 25 U.S.C. § 450£ (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)(6)(“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 says 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.” Reply at 11 (citing Sage, 100 F.Supp.3d at 1173-81 & n. 26).

Next, Sage Hospital challenges the Defendants’ assertion that ordering the Defendants to approve and fund the 2013 Renewal and the 2014 AFA moots Sage Hospital’s request that the Court order the Defendants to approve and fund the 2014 Renewal and the 2015 AFA. See Reply at 11. According to Sage Hospital, “[standard principles of contract law ... dictate otherwise." Reply at 12 (citation omitted)(internal quotation marks omitted). Sage argues that, “‘[w]hen 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.’” Reply at 12 (quoting K & V Sci. Co., Inc. v. BMW, 164 F.Supp.2d 1260, 1263 (D.N.M.2011) (Black, J.), rev’d on other grounds, 314 F.3d 494 (10th Cir.2002)). Sage Hospital says that, in New Mexico, this concept is known as the merger doctrine. See Reply at 12 (citing K & V Sci. Co., Inc. v. BMW, 164 F.Supp.2d at 1263 n. 2). Sage Hospital asserts that, accordingly, if the Court orders 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.” 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)).

Sagé Hospital reiterates that Burwell did not validly decline the proposed 2014 Renewal and the 2015 AFA within ninety days of its submission. See Reply at 12-13. • Sage Hospital says that, once it filed the 2014 Renewal and the 2015 AFA, Bur-well 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-1(a) of the ISDEA. Reply at 14 (citations omittedXquoting 25 U.S.C. § 450f(a)(2)(D)). Sage Hospital argues that Burwell 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 Reply at 14 (citing 2d Declination at 13-16; Sage, 100 F.Supp.3d at 1182-83). Sage Hospital asserts that,, if Burwell believes that the amount of funds that Sage Hospital seeks is excessive, she has the ability and the duty to invoke— within the ninety-day period which the IS-DEA prescribes — the one declination criterion that would apply: Sage Hospital’s contract proposal is in excess of the applicable funding level. See Reply at 14 (citing Seneca Nation of Indians v. HHS, 945 F.Supp.2d 135, 150 (D.D.C.2013)). Sage Hospital contends 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 a 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," i.e., the one declination criterion specifically addressed to the funding level. Id. at 150 (emphasis added).

Reply at 14-15. Sage Hospital says that other decisions are in accord. See 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 argues that the ISDEA and its regulations reflect Congress’ intent that tribal organizations have potent rights and effective remedies for the IHS’ unlawful declination decisions. See Reply at 16 (citing Sage, 100 F.Supp.3d at 1179-81). Sage Hospital contends that, although the Defendants argue that the ISDEA does not establish an enforceable duty to fund Sage Hospital’s contract proposals, the IS-DEA

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).”

Reply at 17 (alterations in Reply but not in quoted source)(quoting 25 U.S.C. § 450m-1(a)). Sage Hospital maintains that it is therefore entitled to such relief. See Reply at 17.

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

Reply at 17 (bold in original; italics in Reply but not in original)(quoting 25 C.F.R. § 900.30). Sage Hospital asserts that the Defendants omitted the first half of this regulation when they quoted it in the Response. See Reply at 17. Sage Hospital asserts that the Defendants are 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!” Reply at 13.

Sage Hospital says that the Defendants’ argument that summary judgment is 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).” Reply at 19. Sage Hospital contends 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 Reply at 19-20. Sage Hospital argues that the Belgrove Decl. has 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.” Reply at 20-21. Sage Hospital asserts that one of the issues mentioned in the Belgrove Decl. is 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.” Reply at 23. Sage Hospital says that, because the Court has confined its inquiry in resolving the Motion to the “four corners” of Sage Hospital’s