FLANDREAU SANTEE SIOUX TRIBE, a federally recognized Indian tribe v. United States of America et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FLANDREAU SANTEE SIOUX TRIBE,,a
federally recognized Indian tribe.
4:20-CV-4142
Plaintiff, ORDER
vs.
UNITED STATES OF AMERICA; ALEX M.
AZAR II, in his official capacity as Secretary of
the United States Department of Health and
Human Service; RADM MICHAEL D.
WEAHKEE,in his official capacity as Director
of the Indian Health Service; and DAVID
BERNHART in his official capacity as Secretary
of the United States Department of Interior,
-
Defendants.
Plaintiff Flandreau Santee Sioux Tribe ("the Tribe") has filed a lawsuit against Defendants
United States ofAmerica; Alex M. Azar II, in his official capacity as Secretary ofthe United States
Department of Health and Human Service; Radm Michael D. Weahkee,in his official capacity as
Director of the Indian Health Service; and David Bemhart in his official capacity as Secretary of
the United States Department ofInterior (collectively,"Defendants"). In its Complaint, the Trihe
alleges that Defendants failed to pay the full amount of contract support costs due to it in violation
of their obligations under the Tribe's Indian Self Determination Education and Assistance Act
("ISDEAA") contracts for fiscal years 2011 through 2013 and in violation of the ISDEAA.
Pending before the Court is Defendants' Motion to Dismiss Counts II, III, and VI of the Tribe's
Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject
matter jurisdiction for failing to present these claims to Indian Health Service. In Counts H and
III, the Tribe alleges breach of contract claims for: 1) Failure to Pay Indirect Contract Support
Costs Associated with Third-Party Revenues-Funded Portion of the Program; and 2) Lost Third-
Party Revenues. In its claim to Indian.Health Service, the Tribe characterized its claims alleged in
Counts II and III as claims for "expectancy damages." In Count VI, the Tribe alleges a claim for
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a breach of a statutory duty to pay the Tribe full eontraet support eosts under 25 U.S.C. §
5325(a)(2)-(3).
Under the Contract Disputes Act("CDA")"[e]ach claim by a contractor against the Federal
Government relating to a eontraet shall be in writing,""shall be submitted to the eontraeting offieer
for a deeision," and "[f]or claims of more than $100,000 . . . the eontractor shall eertify [the
elaim]." 41 U.S.C. § 7103(a),(b). Thus,"[a] valid final decision by the eontraeting officer is a
'jurisdietional prerequisite' to further legal action thereon." Johnson Controls World Servs., Inc.
V. United States, 43 Fed.Cl. 589, 592(1999)(quoting Sharman Co. v. United States, 2 F.3d 1564,
1568 (Fed. Cir. 1993)). Although the CDA does not specify the elements ofa valid elaim, courts
have adopted the definition set forth in 48 C.F.R.(FAR)§ 2.101: "[A] written demand or written
assertion by one of the contracting parties seeking, as a matter of right, the payment of money in
a sum certain, the adjustment or interpretation of eontraet terms, or other relief arising under or
relating to the eontraet.'" Claude Mayo Constr. Co. v. United States, 128 Fed.Cl. 616,621 (2016)
(citing 48 C.F.R. § 2.101). Thus, under the CDA,"to reeover money damages, a claim .. . must
be '(1) a written demand or assertion,(2) seeking as a matter of right,(3)the payment of money
in a sum certain.'" United Constructors, LLC v. United States, Civ. No. 08-757C, 2009 WL
875358, at *6 (Fed. Cl. 2009){ciXing James M. Ellett Constr. Co. v. United States, 93 F.3d 1537,
1542(Fed. Cir. 1996)).
In its brief in opposition to Defendants' Motion to Dismiss, the Tribe asserts that it
provided doeumentation to the eontraeting officer to support it claims for expectancy damages. A
claim may arise from the combination of more than one doeument submitted to the contracting
officer. N. Star Alaska Hous. Corp. v. United States, 76 Fed.Cl. 158, 184 (2007). However, the
additional documentation allegedly provided to the eontraeting officer is not presently in the record
on this Motion to Dismiss.
As Defendants have ehallenged the jurisdietional factual assertion that the Tribe has filed
claims for reimbursement of all of its unpaid eontraet support costs incurred in fiseal years 2011
through 2013,the court may consider relevant evidenee outside the pleadings to resolve that factual
dispute. See Diversified Maintenance Sys., Inc. v. United States, 110 Fed.Cl. 612,615(2013). In
ruling on this type of Rule 12(b)(1) motion, the eourt need not aecept bare allegations in a
plaintiffs pleadings. Disability Support Alliance v. Heartwood Enterprises, LLC, 885 F.3d 543,
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547(8th Cir. 2018). In addition, the Court concludes that it is not precluded from considering this
evidence in determining whether the Tribe presented its claims for expectancy damages to Indian
Health Service and whether the Court thus has jurisdiction over these claims. See Fed. R. Evid.
408 ("The court may admit this evidence for another purpose...."); Love v. Talbert House, Civ.
No. 19-0448, 2020 WL 6440256, at *2(S.D. Ohio Nov. 3, 2020)("Rule 408 does not prohibit the
consideration of [statements made as part of settlement negotiations] for other purposes;
specifically, it does not prohibit their consideration to establish that a plaintiff fulfilled
administrative exhaustion requirements."); Weinstein's Federal Evidence § 408.08[9] (2d ed.)
("Rule 408 does not prohibit evidence ofa settlement when it is used either to establish or to attack
the court's jurisdiction.").
Accordingly, it is hereby ORDERED:
1) If the parties can jointly agree by stipulation as to the additional documents the Tribe
provided to Indian Health Service in support of its expectancy damages claims, prior to
IHS's final decision denying the Tribe's claims, please file such documents with the Court
no later than September 24, 2021. If not, then each party that wishes to respond, should do
so by filing a response with the Court by September 24, 2021.
Dated this V* day of September, 2021.
BY THE COURT:
Ef^uj	HtUiU-UfCiMA—-
^awrence L. Piersol
ATTEST: ^'United States District Judge
MATTHEW W.THELEN,CLERK
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