JAMES O. BROWNING, District Judge.
"Sage is a health care facility in Ganado, Arizona, within the exterior boundaries of the Navajo Reservation." MSJ ¶ 1, at 2 (setting forth this fact). See Defendants' Opposition to Plaintiff's Motion for Summary Judgment ¶ 1, at 9, filed February 26, 2015 (Doc. 48) ("Response") (not disputing this fact); Declaration of Stenson Wauneka ¶ 3, at 1,
"Since 2004, Sage has contracted with IHS under the ISDEAA to provide health services to a largely Navajo patient population." MSJ ¶ 3, at 2 (setting forth this fact). See Response ¶ 3, at 9 (not disputing this fact); Declaration of Christi El-Meligi ¶ 3, at 5, filed December 22, 2014 (Doc. 17-1) ("El-Meligi 1st Decl."). "Defendant [Frank] Dayish is the Contracting Officer [(`CO')] for the Navajo Area IHS." MSJ ¶ 4, at 3 (setting forth this fact). See Response ¶ 4, at 9 (not disputing this fact); Declaration of Christi El-Meligi
"Over 1,600 CSC CDA[
Response ¶ 4, at 9 (setting forth this fact). See Blair 1st Decl. ¶ 13, at 5; id. ¶ 15, at 6; Declaration of Frank Dayish ¶¶ 17-19, at 4-5 (dated Feb. 26, 2015), filed February 26, 2015 (Doc. 48-1) ("Dayish Decl.").
"After IHS completes its analysis of the tribal contractor's claims, it notifies the tribal contractor of the results of the analysis or reaches out to the tribal contractor and typically its legal counsel and financial expert to discuss the claims." Response ¶ 4, at 9 (setting forth this fact). See Blair 1st Decl. ¶ 16, at 6-7.
Response ¶ 4, at 9-10 (setting forth this fact). See Blair 1st Decl. ¶ 16, at 6-7.
"By letter dated August 25, 2014 to Defendant Dayish, Sage submitted to IHS a CSC claim for FY 2009 through FY 2013 for a total of $62,569,681." MSJ ¶ 5, at 3 (setting forth this fact). See Response ¶ 5, at 10 (not disputing this fact); El-Meligi 2d Decl. ¶ 3, at 1. "Sage submitted approximately 270 pages of documents with its CDA claims letter for $62,569,681, including Sage's audited financial statements for (FYs) 2009-2013." Response ¶ 5, at 10 (setting forth this fact). See Reply to Defendants' Opposition to Plaintiff's Motion for Summary Judgment at 11-15, filed March 19, 2015 (Doc. 53) ("Reply") (not disputing this fact); Claim passim. Sage Hospital also submitted "contracts and funding agreements between Sage and IHS in the custody of IHS, a Schedule of Attachments A and B prepared by Sage showing details of the CSC shortfalls, expectancy damages, and total claim...." MSJ ¶ 6, at 3 (setting forth unmodified version of this fact). See Claim passim.
"Sage did not rely on IHS' reports to Congress, and Sage's claim expressly states that Sage has used the method of calculating the shortfall preferred by IHS, namely, full amount of CSC minus amount of CSC paid." Reply ¶ 4A, at 11 (internal quotation marks omitted) (setting forth this fact). See Surreply in Opposition to Plaintiff's Motion for Summary Judgment passim, filed April 7, 2015 (Doc. 60) ("MSJ Surreply") (not disputing this fact); Claim at 2; Spreadsheets of Sage Hospital's CSC at 2, filed January 26, 2015 (Doc. 27-2) ("CSC Spreadsheets"); McGee Decl. ¶ 3, at 1. "The Claim specifies, [for FYs 2009-13,] the CSC shortfall based on the full amount of CSC incurred by Sage minus the amount of CSC paid by IHS, the expectancy damages from lost billings, and the total claim for each such year." MSJ ¶ 6, at 3 (setting forth this fact); Response ¶ 6, at 10 (not disputing this fact). See Claim at 1. "The Claim ... explains the expectancy damages claim for lost third-party revenues and the manner of calculating them." MSJ ¶ 6, at 7-8 (setting forth unmodified version of this fact). See CSC Spreadsheets at 2.
Dayish responded to the Claim with a letter "based on a template designed to ensure consistent responses to all tribes with CSC claims" that was dated October 23, 2014. Response ¶ 7, at 11 (setting forth unmodified version of this fact). See Reply ¶ 3, at 11 (not disputing this fact); Letter from Frank Dayish, Contracting Officer, Navajo Area Indian Health Service to Stenson D. Wauneka, Board President, Navajo Health Foundation — Sage Memorial Hospital Inc. (Oct. 23, 2014), filed January 26, 2015 (Doc. 27-17) ("Dayish Ltr.").
Dayish Ltr. at 1-2.
Response at 14 (setting forth this fact). See Reply at 6-8 (not disputing this fact); Blair 1st Decl. ¶ 9, at 4. "Sage's claims are the most recently filed CSC CDA claims in the Navajo Area IHS." Response at 14 (setting forth this fact). See Dayish Decl. ¶ 21, at 5.
"[A]ll of the tribal contractors in the Navajo Area IHS with ISDEAA contracts have filed CSC CDA claims against the IHS, and IHS's determination on the time required to respond to Sage's claims was informed by the Area's experience with resolving those other claims." Response at 14 (setting forth this fact). See Dayish Decl. ¶¶ 8-12, at 3-4; id. ¶ 14, at 4; id. ¶ 17, at 4.
Response at 14 (setting forth unmodified version this fact). See Dayish Decl. ¶¶ 22-23, at 5-6.
Sage Hospital filed this case in federal court on October 23, 2014. See Complaint, filed October 23, 2014 (Doc. 1). Sage Hospital filed the First Amended Complaint on November 24, 2014, asserting four causes of action. See Doc. 5 ("FAC"). First, Sage Hospital contends that the IHS' declination of Sage Hospital's August 22, 2013, three-year contract proposal for FY 2014 ("FY 2014 Proposal") violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See FAC ¶ 55, at 23. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the IHS' declination of the FY 2014 Proposal; (ii) compel Burwell to award and fund the FY 2014 Proposal; (iii) provide coverage for Sage Hospital and its employees under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA");
Sage Hospital argues that, even if had to demonstrate the traditional equitable grounds for obtaining injunctive relief, those traditional grounds are easily met here. See FAC ¶ 57, at 24. Sage Hospital contends that the IHS' declination of the FY 2014 Proposal 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 FAC ¶ 57A, at 24. Sage Hospital asserts that it will likely succeed on the case's merits, because the Defendants clearly violated the ISDEAA and its implementing regulations. See FAC ¶ 57B, at 24. Sage Hospital points out that 25 C.F.R. § 900.33 prohibits the IHS from declining to renew Sage Hospital's ISDEAA 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 FAC ¶ 57B, at 24. Sage Hospital asserts that 25 C.F.R. § 900.32 prohibits the IHS from declining Sage Hospital's annual funding agreement for FY 2014, because that proposed agreement was substantially the same as the one that the IHS approved for FY 2013. See FAC ¶ 57B, at 24. 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)." FAC ¶ 57B, at 24. Sage Hospital argues that the balance of hardships tips in its favor, because, while an injunction will merely require the Defendants to comply with federal law, the Court's failure to order an injunction will ruin Sage Hospital's business and cause two hundred Sage Hospital employees to lose their jobs. See FAC ¶ 57C, at 24. Sage Hospital asserts that an injunction will also be in the public interest, because it will allow American Indians to get much-needed and high-quality healthcare at Sage Hospital rather than obtaining lower-quality healthcare at more distant IHS facilities. See FAC ¶ 57D, at 25.
Second, Sage Hospital contends that the IHS' declination of Sage Hospital's September 19, 2014, proposal for FY 2015 ("FY 2015 Proposal") — to the extent that it is substantially the same as the FY 2014 Proposal — violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See FAC ¶¶ 59-60, at 25. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the IHS' declination of the FY 2015 Proposal to the extent that it is substantially the same as the FY 2014 Proposal; (ii) compel Burwell to award and fund the FY 2015 Proposal to the extent that it is substantially the same as the FY 2014 Proposal; (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 FAC ¶¶ 61, at 25. Sage Hospital reiterates that, because the ISDEAA provides for both injunctive and mandamus relief to remedy violations of the ISDEAA and its implementing regulations, it does not need to prove the traditional equitable grounds for obtaining injunctive relief. See FAC ¶ 61, at 25.
Sage Hospital argues that, even if it had to demonstrate the traditional equitable grounds for obtaining injunctive relief, those grounds are easily met. See FAC ¶ 62, at 25-26. Sage Hospital contends that IHS' declination of the FY 2015 Proposal is causing Sage Hospital immediate and irreparable injury, because it threatens to ruin Sage Hospital's healthcare business, to force it to close, and to cause
Third, Sage Hospital asserts that, because it is entitled to immediate injunctive relief to reverse the IHS' declination of the FY 2014 Proposal and to compel the Defendants to award and fund the FY 2014 Proposal, the Defendants are required to pay Sage Hospital the full amount requested in the FY 2014 annual funding agreement. See FAC ¶ 64, at 27. Sage Hospital contends that, under the ISDEAA, 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 FAC ¶ 66, at 27.
Fourth, Sage Hospital argues that IHS violated the CDA. See FAC ¶¶ 67-72, at 27-29. Sage Hospital explains that it submitted the Claim on August 25, 2014. See FAC ¶ 68, at 27. According to Sage Hospital, the Claim specifies, for each FY from 2009 to 2013, Sage Hospital's total CSC shortfall. See FAC ¶ 69, at 27-28. Sage asserts that IHS responded to the Claim with "an inapplicable form letter," and that the IHS' proposed date for deciding the Claim — 21, 2015 — is unreasonable, because the Claim and its exhibits provide all of the information that the IHS needs to decide the Claim. FAC ¶¶ 70-71, at 28. Sage Hospital argues that, consequently, the Dayish Ltr. violates the CDA. See FAC ¶ 71, at 28. 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 FAC ¶ 72, at 29.
Sage Hospital filed the MSJ on January 26, 2015. In the MSJ, Sage Hospital asks the Court to award summary judgment in its favor on Count IV — i.e., Sage Hospital's claim that the IHS' decision to take fourteen months to approve or to deny the Claim is unreasonable under the CDA. See MSJ at 14-20. Sage Hospital argues that the ISDEAA favors prompt resolution of claims and the provision of necessary funds to tribal organizations. See MSJ at 6 (citing S.Rep. No. 100-274 at 2-3 (1987)). Sage Hospital maintains that 25 C.F.R. § 900.233(a) mandates that, "if the claim is for more than $100,000, the awarding official shall issue the decision within 60 days
Sage Hospital urges that, because the Claim and its exhibits provide all of the information necessary for the IHS to decide the Claim, "IHS' action in giving itself one year and eight weeks to decide the Claim is unreasonable." MSJ at 14. According to Sage Hospital, the Claim consists of: (i) a three-page narrative; (ii) two attachments, which total fourteen pages; (iii) a "Schedule of Agreed Upon Procedures for Contract Support Costs for FY 2009-2013," which consists of one page; and (iv) Sage Hospital's audited financial statements for FYs 2009-13, which consist of approximately 255 pages. MSJ at 14-15 (citation omitted). Sage Hospital contends that the Claim is neither lengthy nor complex. See MSJ at 15 (citing Def. Sys. Co., ASBCA No. 50534, 97-2 BCA ¶ 28,981, 1997 WL 217392 (1997)(noting that a seventy-one-million-dollar CDA claim consisting of a 162-page narrative and a volume containing forty-nine exhibits was complex)).
Sage Hospital points to Kelly-Ryan, Inc., ASBCA No. 57168, 11-1 BCA ¶ 34,629, 2010 WL 5071059 (2010), in which, according to Sage Hospital, the Civilian Board of Contract Appeals observed that "`[w]e have found no Board cases, nor have we been cited to any by the parties, that have held more than 9 months to be a reasonable period of time within which to issue a CO's final decision.'" MSJ at 15-16 (quoting Kelly-Ryan, Inc., 2010 WL 5071059, at *1)(alterations in MSJ but not in source) (emphases in MSJ but not in source). Sage Hospital also cites Fru-Con Construction Corp., ASBCA No. 53544, 02-1 BCA ¶ 31,729, 2002 WL 75878 (Jan. 15, 2002). See MSJ at 16. In that case, according to Sage Hospital, the Board of Contract Appeals found that a contracting officer's seven-and-a-half month delay in issuing a decision on a $35,582,600 CDA claim — detailed in a twenty-eight-page narrative, a fifty-four-page cost-impact analysis, and a one-volume appendix — was unreasonable. See MSJ at 16 (citing Fru-Con Const. Corp., 2002 WL 75878, at *1; Dillingham/ABB-SUSA, ASBCA No. 51195, 98-2 BCA ¶ 29,778, 1998 WL 258456, at *1 (1998)(holding that there was "no justification at all" for contracting officer's fourteen-month delay in issuing a decision on a $4,885,556.00 CDA claim)).
Sage Hospital contends that it is entitled to summary judgment on Count IV, because there are no genuine issues of material fact. See MSJ at 17. Sage Hospital says that the Defendants do not dispute the Claim's content or when Sage Hospital filed the Claim. See MSJ at 17. Sage Hospital maintains that, similarly, the IHS' response to the Claim — which states that the IHS will take fourteen months to issue a decision on the Claim — is not in dispute. See MSJ at 17. Sage Hospital urges that whether fourteen months is a reasonable period to decide the Claim is a question of law that the Court should answer
The Defendants responded to the MSJ on February 26, 2015. See MSJ Response at 1. In the Response, the Defendants ask the Court to deny the MSJ, because Sage Hospital has failed to demonstrate that fourteen months is an unreasonably long period for deciding the Claim. See MSJ Response at 15. The Defendants assert that Sage Hospital has the burden of showing that fourteen months is an unreasonable delay for deciding the Claim. See MSJ Response at 15 (citing Design One Bldg. Sys., Inc. v. Dep't of Veterans Affairs, CBCA 2423, 11-1 BCA P 34766, 2011 WL 2165863 (May 27, 2011) ("Design One")). According to the Defendants, in Design One, the tribal organization asked the Civilian Board of Contract Appeals to direct the United States Department of Veterans Affairs to issue a decision on its CDA claims sooner than the contracting officer's proposed date, which was eleven months after the tribal organization submitted the claims. See MSJ Response at 15 (citing Design One, slip op. at 2). The Defendants explain that the Civilian Board of Contract Appeals denied the request, stating:
MSJ Response at 15-16 (quoting Design One, slip op. at 3) (alterations in MSJ Response but not in Design One).
The Defendants urge that "`[w]hether the time a CO needs to issue a decision is reasonable must be determined on a case by case basis.'" MSJ Response at 17 (quoting Pub. Warehousing Co., K.S.C., ASBCA No. 56888, 09-2 BCA ¶ 34,265, 2009 WL 3183047 (Sept. 25, 2009)) (alterations in Response but not in source) (citing Eaton Contract Servs., Inc., ASBCA Nos. 52686 & 52796, 00-2 BCA ¶ 31,039 (finding eight-month delay reasonable given the volume of documentation, number of issues, and time needed to gather information because of personnel relocation); Def. Sys. Co., ASBCA No. 50534, 97-2 BCA ¶ 28,981, 1997 WL 217392 (Apr. 25, 1997) (finding nine-month delay reasonable when claimed amount exceeded seventy-one million dollars and the claim's narrative portion alone exceeded 162 pages)). The Defendants argue that, "`if the claim is substantial and will require a long period of time to address, then the contracting officer's only option is to fix a date far enough into the future to assure complete evaluation....'" MSJ Response at 17 (quoting Eaton Contract Servs., Inc., 00-2 BCA ¶ 31,039).
The Defendants argue that Sage Hospital has failed to offer any evidence which demonstrates that fourteen months is an unreasonable period for the IHS to decide the Claim. See MSJ Response at 17. The Defendants point out that the evidence which Sage Hospital submitted does not address the Claim's complexity, the process that the IHS follows to resolve CSC claims, "or the reasonableness of October 21, 2015 as the date on which [Dayish] would issue his decision with respect to Sage's claims" in light of the complexity of
The Defendants say that it has clearly shown that the IHS did not unduly delay issuing the Dayish Ltr. and that fourteen months is a reasonable period for deciding the Claim. See MSJ Response at 18. The Defendants assert that the IHS is attempting to resolve CSC claims "expeditiously, as well as consistently and in cooperation with tribal contractors, without resorting to litigation if possible." MSJ Response at 18. The Defendants argue that, as a general matter, "the process is time consuming and resource intensive," because of the complexity of CSC claims, the total number of CSC claims that the IHS must resolve, and the time that the IHS needs to discuss the claims with tribal organizations. MSJ Response at 18. The Defendants maintain that, based on the IHS' experience, one to two years is a reasonable amount of time to resolve a CSC claim. See MSJ Response at 18. The Defendants contend that the IHS' collaborative approach with tribal organizations in resolving CSC claims is consistent with Congress' intent in establishing the CDA's administrative requirements:
The Contract Disputes Act of 1978 provides a fair, balanced, and comprehensive statutory system of legal and administrative remedies in resolving Government contract claims. The act's provisions help to induce resolution of more contract disputes by negotiation prior to litigation; equalize the bargaining power of the parties when a dispute exists; provide alternate forums suitable to handle the different types of disputes; and ensure fair and equitable treatment to contractors and Government agencies.
MSJ Response at 19 (quoting S.Rep. No. 1118 95th Cong., 2d Sess. 1 (1978), 1978 U.S.C.C.A.N. at 5235) (internal quotation marks omitted).
Sage Hospital replied to the MSJ Response on March 19, 2015. See MSJ Reply at 1. In the MSJ Reply, Sage Hospital contends that the crux of the Defendants' argument is that the IHS needs more documentation from Sage Hospital to resolve the Claim. See MSJ Reply at 7. Sage Hospital explains that, in Tuba City Regional Health Care Corp. v. United States, 39 F.Supp.3d 66 (D.D.C.2014) ("Tuba City"), the tribal organization filed its first CSC claim with Dayish on September 17, 2012, and then filed five more claims on November 5, 2012. MSJ Reply at 11 (citing Tuba City, 39 F.Supp.3d at 68). Sage Hospital states that
MSJ Reply at 11-12 (citations omitted). According to Sage Hospital, the "court ruled that [the tribal organization's] claim should be deemed denied by Dayish's self-granted extensions." MSJ Reply at 13. Sage Hospital concludes its discussion of the Tuba City case by noting that neither a tribal organization's failure to properly document its claims nor its failure to adhere to the IHS' preferred means of settling CSC claims provides a valid basis for the IHS to extend the timeframe for deciding a CSC claim. See MSJ Reply at 13.
Sage Hospital argues that, in any event, it has provided more than adequate information to support the Claim. See MSJ Reply at 8. Sage Hospital says that, consistent with the IHS' instructions, the Claim does not rely on the IHS' shortfall reports, but instead details its incurred CSC. See MSJ Reply at 9. Sage Hospital explains that the Claim consists of two parts: (i) the difference between Sage Hospital's incurred costs and CSC payments for FYs 2009-13, which total $36,258,493.00; and (ii) the third-party revenues that Sage Hospital lost because of the CSC underpayments for FYs 2009-13, which total $26,311,188.00. See MSJ Reply at 9-10. Sage Hospital says that the Claim is straightforward and explains its damages calculation in detail. See MSJ Reply at 10. Sage Hospital points out that, although the Claim "has been the only one awaiting analysis by the Navajo Area IHS," the IHS has not requested a single document from Sage Hospital "in the more than six months since Sage filed its claim." MSJ Reply at 8. Sage Hospital argues that, regardless how much time Dayish spends assessing the Claim, he must deny it — and every other tribal organization's CSC claim — because the IHS has no remaining appropriations to pay CSC claims. See MSJ Reply at 7-8 (citing Letter from Yvette Roubideaux, IHS Director, to Stenson Wauneka, President of Sage Hospital's Board of Directors at 2 (dated Oct. 23, 2014), filed January 26, 2015 (Doc. 27-17) ("Roubideaux Ltr.")).
Sage Hospital argues that much of the MSJ Response is irrelevant to whether Dayish's proposed fourteen-month timeframe is unreasonable. See MSJ Reply at 13. Sage Hospital asserts that, "without the fluff," the purported issues of fact that the Defendants assert boil down to "its assertions that Sage's claims are not supported by sufficient documentation, that
Sage Hospital says that Design One is distinguishable, because the tribal organization in that case hired a consultant to evaluate its CSC claims three months after it submitted them, did not specify a length of time by which the CO's proposed deadline should be shortened, provided no evidence to support shortening the timeframe, and waited nearly five months after receiving the CO's letter to file its petition to shorten the timeframe. See MSJ Reply at 21 n. 10 (citing Design One, slip op. at 1-2). Sage Hospital says that, by contrast, its auditor independently evaluated the Claim before Sage Hospital submitted it, Sage Hospital has provided ample evidence supporting its contention that fourteen months is an unreasonable timeframe, Sage Hospital asserted its claim just one month after receiving the Dayish Ltr., and Sage Hospital provided a specific deadline — i.e., January 31, 2015 — that Sage Hospital said was acceptable for Dayish to make his decision. See MSJ Reply at 21. Sage Hospital asserts that, accordingly, Design One is inapposite. See MSJ Reply at 21. Sage Hospital contends that, with the exception of Design One, no Civilian Board of Contract Appeals case has found that a period over nine months was reasonable for a contracting officer to decide a CDA claim. See MSJ Reply at 21.
Sage Hospital urges that it is entitled to summary judgment, because there are no genuine disputes of material fact regarding whether fourteen months is an unreasonable delay for deciding the Claim. See MSJ Reply at 22. Sage Hospital says that, alternatively, the CDA requires COs to unequivocally issue a decision by a specific date without making that decision contingent upon any other factors. See MSJ Reply at 22. Sage Hospital asserts that, because Dayish made the October 21, 2015, deadline for deciding the Claim contingent upon Sage Hospital's provision of documents, the Court should deem the Claim denied. See MSJ Reply at 22 (citing Tuba City, 39 F.Supp.3d at 70 & n. 2; Orbas & Assoc. v. United States, 26 Cl.Ct. 647, 650 (1992); Aerojet General Corp., ASBCA No. 48136, 95-1 BCA ¶ 27,470, 1995 WL 44259 (Jan. 24, 1995)).
Sage Hospital says that the Claim is the only CSC claim pending before Dayish, and that Dayish "has had Sage's claim, and no other, before him for analysis since late 2014." MSJ Reply at 19 (internal quotation marks omitted). Sage Hospital points out that, in contrast with most IHS Area offices, the IHS Navajo Area Office only has six ISDEAA contractors. See MSJ Reply at 19 (citing 2012 Report to Congress on Funding Needs for Contract Support Costs of Self-Determination Awards (Based on Fiscal Year 2011 Data), filed March 19, 2015 (Doc. 531)). Sage Hospital says that, of those six contractors, the IHS settled Tuba City's and Winslow's CSC claims in September, 2014, has apparently settled and "certainly analyzed" Fort Defiance Hospital's CSC claim, has engaged in settlement negotiations with the Navajo Nation since "late 2014," and has engaged in settlement negotiations since "early to
The Defendants filed a surreply on April 7, 2015. See MSJ Surreply at 1. The Defendants raise four issues in the MSJ Surreply. First, the Defendants assert that the Miller Decl., upon which Sage Hospital relies in the MSJ Reply, is "misleading and inaccurate." MSJ Surreply at 1-3. The Defendants argue that, contrary to Miller's statements, the IHS' CSC claim process demonstrates that the fourteen-month period that Dayish proposes to decide the Claim is reasonable. See MSJ Surreply at 2. The Defendants contend that Miller implies that the IHS issues decision letters on CSC claims as a routine matter, and that "little or nothing is required of [the IHS] before it issues the decisions." MSJ Surreply at 2. The Defendants assert that, to the contrary, the IHS issues a CSC claim decision only after the IHS and the tribal organization have analyzed and discussed the claim together. See MSJ Surreply at 2 (citing Second Declaration of Susan Blair ¶ 4, at 3 (dated Apr. 7, 2015), filed April 7, 2015 (Doc. 60-2) ("Blair 2d Decl.")). The Defendants note that, in every case that is pending before Dayish, the claims analysis and discussions between the IHS and the tribal organization occurred before Dayish issued a decision on the CSC claims. See MSJ Surreply at 2 (citing Blair 2d Decl. ¶¶ 4, 6-7, at 3-4).
The Defendants explain that, in March, 2013, the IHS adopted two procedural options to allow the IHS and tribal organizations to discuss and analyze CSC claims before the CO issues a formal decision on the claims. See MSJ Surreply at 2. First, the IHS agreed to withdraw CO decision letters, "when a tribal [organization] requested the withdrawal within 90 days of the letter being issued so that the parties could engage in settlement discussions." MSJ Surreply at 2 (citing Blair 2d Decl. ¶ 7, at 4). Second, the IHS agreed "not to issue new decision letters and to instead issue lengthier extensions of the time to issue a decision letter." MSJ Surreply at 2 (citing Blair 2d Decl. ¶ 7, at 4). The Defendants say that Miller and his tribal organization clients have availed themselves of these options. See MSJ Surreply at 2 (citing Blair 2d Decl. ¶ 8, at 4). The Defendants assert that the fourteen-month period that Dayish proposed to resolve the Claim "is consistent with that process and the time required to resolve claims through the process." MSJ Surreply at 2.
The Defendants contend that, only after the IHS discusses the CSC claims with the tribal organization — or attempts to do so — does it make a determination about whether to deny it. See MSJ Surreply at 3 (citing Blair 2d Decl. ¶ 5, at 3). The Defendants state that, while the IHS often denies CSC claims solely on the basis that it lacks sufficient appropriations, the IHS makes that determination "only after the analysis is complete and the parties have reached an understanding." MSJ Surreply at 3 (citing Blair 2d Decl. ¶ 5, at 3). The Defendants explain that, if the parties do not reach an understanding on the tribal organization's CSC claims, the IHS may ultimately deny the claims on several grounds and even assert counterclaims if the IHS believes that it overfunded the tribal organization. See MSJ Surreply at 3 (citing Blair 2d Decl. ¶ 5, at 3). In the Defendants' view, the Claim presents additional complicating factors that the IHS must take additional time to analyze, because the IHS must consider the results of "an extensive and detailed forensic audit conducted by Moss[] Adams, LLP, which disclosed significant misuse and mismanagement of IHS funding by the tribal contractor." MSJ Surreply at 3 (citing Blair 2d Decl. ¶ 11, at 5-6). The Defendants say that, accordingly, contrary to Miller's statements, Dayish's decision on the Claim
Second, the Defendants insist that the IHS is addressing all CSC claims nationally "based on receipt date." MSJ Surreply at 4. The Defendants contend that Sage Hospital's statement that "the only claims pending before IHS CO Frank Dayish and awaiting a CO decision are Sage's" is false. MSJ Surreply at 4. The Defendants clarify that the Utah Navajo Health System's and the Navajo Nation's CDA claims are also pending before Dayish. See MSJ Surreply at 4 (citing Dayish Decl. ¶¶ 11-12, at 4). The Defendants note that, even if the Claim were the only CSC claim before Dayish, that fact would not be dispositive. See MSJ Surreply at 4. The Defendants explain that the Navajo Area IHS Office has not hired its own financial experts to assist in analyzing its CSC claims; rather, the additional staff that the IHS has hired to assist with the influx of CSC claims are all based in the IHS' Headquarters Office of Finance and Accounting and help all of the IHS Area Offices nationwide in analyzing their CSC claims. See MSJ Surreply at 4 (citing Blair 2d Decl. ¶ 3, at 2). The Defendants urge that, accordingly, the fact that the Navajo Area IHS Office has a smaller number of ISDEAA contracts than other IHS Area Offices does not mean that the IHS can more quickly resolve those claims. See MSJ Surreply at 4 (citing Blair 2d Decl. ¶ 3, at 2). The Defendants state that, to the contrary, the IHS has made a policy decision to attempt to review and resolve the claims in the order in which the IHS received them, without regard to the IHS Area in which the tribal organization is located. See MSJ Surreply at 4 (citing Blair 1st Decl. ¶ 9, at 4).
The Defendants also contest Sage Hospital's characterization of the CSC claim resolution process as "`IHS's preferred means of settling CSC claims.'" MSJ Surreply at 5 (quoting MSJ Reply at 15). The Defendants say that, to the contrary, the IHS and tribal organizations mutually agreed to this process, and the IHS has used the process to resolve "almost all" tribal organizations' CSC claims. MSJ Surreply at 5. The Defendants assert that Sage Hospital similarly mischaracterizes the Defendants' opposition to the MSJ as "solely based on Sage's failure to provide adequate documentation to support" the Claim. MSJ Surreply at 5. The Defendants argue that they have also focused on: (i) "the complexity of the claims"
Third, the Defendants say that the Tuba City decision supports their position and not Sage Hospital's. See MSJ Surreply at 6. The Defendants explain that, in Tuba City,
MSJ Surreply at 6-7 (emphases omitted) (citations omitted). The Defendants add:
MSJ Surreply at 7 (citation omitted).
The Defendants also attack Sage Hospital's contention that the Tuba City decision stands for the proposition that the CDA does not provide an exception to its timing requirements for complex claims. See MSJ Surreply at 7 (citing MSJ Reply at 2). The Defendants insist that the portion of the Tuba City decision upon which Sage Hospital relies refers only to the CO's attempt to further extend the deadline after the initial extension expired. See MSJ Surreply at 7. The Defendants quote from Tuba City, in which the Civilian Board of Contract Appeals said:
MSJ Surreply at 7 (quoting Tuba City, 39 F.Supp.3d at 70)(internal quotation marks omitted). The Defendants note: "That is precisely what the IHS CO did in this case." MSJ Surreply at 7.
Fourth, the Defendants challenge Sage Hospital's argument that the Court should deem the Claim denied, because Dayish made his decision on the Claim contingent upon Sage Hospital's provision of documents. See MSJ Surreply at 7. According to the Defendants, the CDA mandates that "`[f]ailure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a decision by the contracting officer denying the claim.'" MSJ Surreply at 8 (emphasis in MSJ Surreply) (quoting 41 U.S.C. § 7103(f) (5)). The Defendants maintain that Dayish fully complied with the CDA by issuing a letter acknowledging the Claim and stating a date by which he would issue a final decision on it. See MSJ Surreply at 8 (citing 41 U.S.C. § 7103(f)(2); 25 C.F.R. § 900.223(a)).
MSJ Surreply at 8 (alterations in MSJ Surreply). The Defendants contend that Sage Hospital's suggestion that the Dayish Ltr. did not set forth a date certain, or that it created uncertainty or confusion, is not credible. See MSJ Surreply at 9.
Sage Hospital responded to the MSJ Surreply on April 9, 2015. See Opposition to Defendants' Motion to File Surreply, filed April 9, 2015 (Doc. 61)("Response to Motion to File Surreply").
Sage Hospital argues that the following remains true and unrebutted:
Response to Motion to File Surreply at 5-6. Sage Hospital notes that the MSJ Surreply ends with the statement that the Dayish Ltr. promised to "`issue a final contracting officer's decision by October 21, 2015.'" Response to Motion to File Surreply at 4 (quoting MSJ Surreply at 9). Sage Hospital clarifies that the Dayish Ltr. actually ends with this statement: "`In consideration of these factors and based upon the anticipated cooperation of the NHF-SMH, I will issue a final contracting officer's decision by October 21, 2015.'" Response to Motion to File Surreply at 5 (quoting Dayish Ltr. at 1)(emphasis in Response to Motion to File Surreply, but not in Dayish Ltr.).
The Defendants filed the Motion to Vacate on April 1, 2015. See Motion to Vacate at 1. In the Motion to Vacate, the Defendants ask the Court to vacate the April 22, 2015, hearing date for the MSJ and reschedule it "for the week of May 11 or thereafter." Motion to Vacate at 2. The Defendants explain that Sage Hospital filed the MSJ on January 26, 2015, and the parties completed briefing on the MSJ on March 19, 2015. See Motion to Vacate ¶ 1, at 1. The Defendants say that the CSC issue is "highly specialized" and note that the IHS' counsel — Paula Lee — is taking the lead on the matter under an agreement with the United States Attorney's Office for the District of New Mexico. Motion to Vacate ¶ 4, at 1. The Defendants explain that Ms. Lee will be unable to attend the April 22, 2015, hearing, because she broke her ankle over the weekend, is expected to be in a cast for at least four weeks, and cannot travel from her home in San Francisco, California, to Albuquerque, New Mexico, with the cast. See Motion to Vacate ¶ 5, at 2. The Defendants note that, based on her doctor's advice, Ms. Lee anticipates being able to travel to Albuquerque during the week of May 11, 2015. See Motion to Vacate ¶ 5, at 2. The Defendants state that Ms. Lee is "highly experienced in the field and by far the most knowledgeable subject-matter expert on CSC" among the Defendants' counsel. Motion to Vacate ¶ 6, at 2. The Defendants assert that, although they are sensitive to the Court's scheduling needs, Ms. Lee is Defendants' counsel of choice on the CSC issue and that the Court should therefore permit her to represent them at the hearing on the MSJ. See Motion to Vacate ¶ 7, at 2.
Sage Hospital responded to the Motion to Vacate on April 1, 2015. See Opposed Motion to Vacate and Reschedule Hearing, filed April 1, 2015 (Doc. 57) ("Motion to Vacate Response"). Sage Hospital says that it submitted the Claim on August 25, 2014, and that, on October 23, 2014, the IHS told Sage Hospital that it would need another year to decide the Claim. See Motion to Vacate Response ¶ 1, at 1. Sage Hospital asserts that, at that point, Sage amended the Complaint to add a claim that fourteen months is an unreasonable period for the IHS to decide the Claim. See Motion to Vacate Response ¶ 2, at 2. Sage Hospital reiterated that the Civilian Board of Contract Appeals has never decided that a delay greater than nine months in making a CSC decision is reasonable. See Motion to Vacate Response ¶ 2, at 2.
Sage Hospital argues that, while CSC issues, in general, may be complex, the issues in the MSJ are not. See Motion to Vacate Response ¶ 6, at 3. Sage Hospital points out that the IHS and the Department of Justice have many talented attorneys who can argue this matter. See Motion to Vacate Response ¶ 6, at 3. Sage Hospital adds that it would suffer prejudice
The Defendants filed the Motion to File Surreply on April 7, 2015. See Motion to File Surreply at 1. The Defendants ask the Court for leave to file a surreply in opposition to the MSJ. See Motion to File Surreply at 1. The Defendants argue that Sage Hospital raised a number of new issues in the MSJ Reply, including: (i) new evidence in the form of the Miller Decl.; (ii) misstatements of fact regarding the number of CSC claims pending before Dayish; and (iii) a request for a new form of relief under a separate provision of the CDA — specifically, Sage Hospital asked that the Court deem the Claim denied, because Dayish made the IHS' approval of the Claim contingent upon receiving additional information from Sage Hospital. See Motion to File Surreply ¶ 2, at 1-2. The Defendants also point out that Sage Hospital cites a new case — Tuba City — in support of its new request for relief under a separate provision of the CDA. See Motion to File Surreply ¶ 2, at 2.
The Defendants argue that "`[a] surreply is appropriate and should be allowed where new arguments are raised in a reply brief.'" Motion to File Surreply ¶ 4, at 2 (quoting Walker v. THI of N.M. at Hobbs Ctr., No. CIV 09-0060 JB/KBM, 2011 WL 2728344, at *1 (D.N.M. July 6, 2011) (Browning, J.)). The Defendants say that a surreply is therefore appropriate in this case. See Motion to File Surreply ¶ 4, at 2. The Defendants add that the April 22, 2015, hearing on the MSJ will be more efficient if both parties have fully addressed the facts before the Court. See Motion to File Surreply ¶ 5, at 2.
Sage Hospital responded to the Motion to File Surreply on April 9, 2015. See Response to MSJ Surreply at 1. Sage Hospital asks the Court to deny the Motion to File Surreply, because it is "improper and unenlightening." Motion to File Surreply Response at 3. Sage Hospital says that the Defendants' assertion that Sage Hospital made misstatements of fact with respect to the number of claims pending before Dayish "is false." Motion to File Surreply Response at 3. Sage Hospital argues:
Motion to File Surreply Response at 3. Sage Hospital adds that, while the Motion to File Surreply asserts that the Miller Decl. is "misleading and inaccurate," it does not identify any inaccurate statements and notes only that the Miller Decl.'s implications are misleading. Motion to File Surreply Response at 3.
Turning to the Defendants' criticism that it raised the Tuba City decision for the first time in the MSJ Reply, Sage Hospital says that "rather than confin[ing] its surreply to that issue, IHS devotes almost seven pages of its proposed surreply to arguing other matters." Motion to
The Court held a hearing on the Motion to Vacate and the Motion to File Surreply on April 10, 2015. See Transcript of Motion Proceedings Before the Honorable James O. Browning (taken Apr. 10, 2015), filed April 22, 2015 (Doc. 65) ("Apr. 10, 2015, Tr."). The Court kicked off the hearing by asking Sage Hospital if the Court's Memorandum Opinion and Order, filed April 9, 2015 (Doc. 62) ("MOO"), which granted a preliminary injunction requiring the Defendants to fund Sage Hospital at preexisting levels until trial, took some of the pressure off Sage Hospital so that it would agree to vacating the April 22, 2015, hearing on the MSJ. See Apr. 10, 2015, Tr. at 2:23-3:3 (Court). Sage Hospital said that it would agree to vacate the hearing and reschedule it for a later date as soon as money starts flowing from the Defendants. See Apr. 10, 2015, Tr. at 3:4-10 (Frye). The Defendants asserted that they had not yet figured out the logistics of complying with the MOO and that they could not promise to start funding Sage Hospital before the hearing. See Apr. 10, 2015, Tr. at 3:19-24 (Grohman).
The Court asked Ms. Lee, who was appearing by videoconference, if she was willing to appear by videoconference for the April 22, 2015, hearing, and Ms. Lee said that she would have no problem doing that. See Apr. 10, 2015, Tr. at 4:1-5:12 (Court, Lee). The Court told the parties that he would deny the Motion to Vacate with the expectation that Ms. Lee would appear at the hearing by videoconference, and that, if the Defendants start funding Sage Hospital before the hearing, the Court would be willing to vacate the hearing and move it back a few weeks. See Apr. 10, 2015, Tr. at 4:16-25 (Court). Sage Hospital agreed to the Court's proposed solution. See Apr. 10, 2015, Tr. at 6:3-5 (Court, Frye). The Court, accordingly, denied the Motion to Vacate without prejudice to the Defendants renewing it down the road or the parties agreeing to vacate the hearing if the Defendants comply with the MOO before the hearing. See Apr. 10, 2015, Tr. at 6:6-13 (Court).
The Court said that it was inclined to grant the Motion to File Surreply. See Apr. 10, 2015, Tr. at 6:18-19 (Court). The Court noted that, because there will be a hearing on the MSJ, "everyone is going to get to say what they want to say." Apr. 10, 2015, Tr. at 6:21-23 (Court). The Court said that it would be willing to consider the Response to Motion to File Surreply, which had some substantive arguments in it, and would also permit Sage Hospital to file a response to the MSJ Surreply. See Apr. 10, 2015, Tr. at 6:23-7:7 (Court). Sage Hospital found the Court's proposed solution acceptable and said that it would have to take a look at the MSJ Surreply to determine whether to file a response to it. See Apr. 10, 2015, Tr. at 7:9-12 (Frye). The Defendants also found the Court's proposed solution acceptable. See Apr. 10, 2015, Tr. at 7:18-21 (Grohman, Court). The Court, accordingly, granted the Motion to File Surreply. See Apr. 10, 2015, Tr. at 7:20 (Court).
The Court held a hearing on the MSJ on April 22, 2015. See Transcript of Motion
The Court asked Sage Hospital what relief it seeks, and Sage Hospital said that the Court can either deem the Claim denied or order the IHS to issue a decision on the Claim by a date certain — ideally a month after the hearing date. See Apr. 22, 2015, Tr. at 21:6-21 (Court, Frye). Sage Hospital said that, ultimately, it would like the IHS to issue a decision on the Claim before the original October 21, 2015, deadline. See Apr. 22, 2015, Tr. at 21:22-24 (Frye). The Court asked Sage Hospital what the practical consequences are for receiving a decision from the IHS on the Claim this May rather than this October. See Apr. 22, 2015, Tr. at 26:16-24 (Court). Sage Hospital replied that waiting until October 21, 2015, for a decision adds five more months before Sage Hospital can obtain any money from the United States on the Claim. See Apr. 22, 2015, Tr. at 26:25-27:1 (Frye). Sage Hospital explained that, if the IHS denies the Claim, Sage Hospital would have to amend the Complaint to challenge the denial in federal court. See Apr. 22, 2015, Tr. at 27:3-9 (Frye). Sage Hospital added that it likely would not have added Count IV to the Complaint if Dayish had set the deadline for deciding the Claim on May 22, 2015 — i.e., a month from the hearing — rather than on October 21, 2015. See Apr. 22, 2015, Tr. at 27:25-28:4 (Court, Frye).
When the Defendants took the floor, they reiterated that resolving CSC claims is a complicated, time-consuming, and labor-intensive process. See Apr. 22, 2015, Tr. at 28:20-29:7 (Lee). The Court asked the Defendants if they could draw a distinction between tribes that have sufficient resources to wait the lengthy period that it takes the IHS to decide CSC claims and commercial tribal organizations like Sage Hospital — which do not have the same amount of resources available to them as large tribes — to determine what is a reasonable period to decide a CSC claim. See Apr. 22, 2015, Tr. at 29:8-15 (Court). The Defendants replied that all of the tribal organizations are likely in a similar position to Sage Hospital, and noted that there are much smaller tribal organizations than Sage Hospital that have filed CSC claims and do not have the third-party revenue or the resources that Sage Hospital has at its disposal. See Apr. 22, 2015, Tr. at 30:10-18 (Lee). The Defendants explained that, because of these similarities, the IHS decided to address all of the CSC claims nationwide in the order in which the IHS received them. See Apr. 22, 2015, Tr. at 30:19-31:4 (Lee). The Defendants noted
The Defendants said that, even if the Court orders the IHS to issue a decision on the Claim within a month, the IHS' process is going to be the same, and that forcing the IHS to make an earlier decision may delay the Claim's resolution even further. See Apr. 22, 2015, Tr. at 32:1-10 (Lee). The Defendants asserted that, if the IHS denies the Claim and Sage Hospital appeals the denial in federal court, the first step would be a document exchange between the IHS and Sage Hospital that must take place within the first thirty days, during which the IHS would request the same documents from Sage Hospital that it requested in the Dayish Ltr. See Apr. 22, 2015, Tr. at 33:8-14 (Lee). The Defendants explain that, at that point, the case management order would typically give the IHS six weeks to analyze the Claim, and then the parties must engage in settlement discussion. See Apr. 22, 2015, Tr. at 33:12-18(Lee). The Defendants asserted that, if the parties are unable to reach an agreement at that point, the IHS could then issue a final decision on the Claim either "on or before" October 21, 2015. Apr. 22, 2015, Tr. at 35:2-8 (Lee).
The Defendants next clarified that the Dayish Ltr. sets forth a date certain by which the IHS will issue a decision on the Claim and that, if the IHS fails to issue a decision by that date, the Claim will be deemed denied. See Apr. 22, 2015, Tr. at 36:2-13 (Court, Lee). In response to the Court's questioning, the Defendants added that the IHS has to deny all CSC claims, because it cannot pay off CSC claims from its appropriated funds. See Apr. 22, 2015, Tr. at 36:20-37:2 (Lee). The Defendants said that the IHS can pay CSC claims only out of the judgment fund. See Apr. 22, 2015, Tr. at 37:2-3 (Lee). The Defendants agreed with the Court's statement that the IHS would either deny the Claim by October 21, 2015, or it will be deemed denied. See Apr. 22, 2015, Tr. at 37:9-12 (Court, Lee). The Defendants added, however, that, if the IHS is unable to reach an agreement with Sage Hospital on the Claim, it would issue a denial which says that the IHS cannot pay because of lack of appropriations and would also set forth all of the IHS' substantive reasons for the denial. See Apr. 22, 2105, Tr. at 37:12-19 (Lee). The Defendants said that, in other words, it would deny the Claim on its merits. See Apr. 22, 2015, Tr. at 37:1920 (Lee).
The Court asked Sage Hospital what the difference is between a denial on the merits and a denial solely because the IHS cannot afford to pay the CSC claim out of its appropriations. See Apr. 22, 2015, Tr. at 37:20-25 (Court). The Defendants responded that there was no difference for Sage Hospital, because Sage Hospital could challenge the denial in federal court or before the Civilian Board of Contract Appeals. See Apr. 22, 2015, Tr. at 38:1-5 (Lee). The Defendants said that, if the IHS declines the Claim on the merits, it would set forth a number of substantive reasons for the denial-like counterclaims and statute-of-limitations defenses. See Apr. 22, 2015, Tr. at 38:6-19 (Lee). The Court then asked the Defendants what benefit they gain from deciding the Claim in October, 2015, rather than in May, 2015, and the Defendants replied that "it's the choice between going through a formal litigation process or working collaboratively," and that litigating the Claim in Court "seems to be a waste of resources." Apr.
The Defendants next argued that the Claim is complex, because it seeks sixty-five million dollars, the CSC Spreadsheets set forth four-thousand entries that the IHS must analyze, and the IHS must also incorporate the Moss Adams, LLP's audit of Sage Hospital into its decision. See Apr. 22, 2015, Tr. at 44:12-46:15 (Court, Lee). The Defendants reiterated that the IHS has 1,600 claims to resolve and that the IHS has done everything it can to address the claims in a timely manner. See Apr. 22, 2015, Tr. at 47:1-16 (Lee). The Defendants added that none of the cases that Sage Hospital cites "have this particular unique situation and this particular context." Apr. 22, 2015, Tr. at 47:17-19 (Lee). The Defendants and the Court then discussed the longest timeframe that Civilian Board of Contract Appeals has found reasonable for deciding a CDA claim, and the Defendants said that Design One — which upheld an eleven-month period — provides the outer limit for deciding CDA claims. See Apr. 22, 2015, Tr. at 49:19-23 (Court, Lee).
The Defendants said that three extraordinary circumstances exist in this case that justify taking fourteen months to review the Claim: (i) the Claim's size: it is "huge" and "complex"; (ii) Sage Hospital did not provide adequate documentation to support the Claim; and (iii) the IHS has 1,600 pending claims to analyze. Apr. 22, 2015, Tr. at 50:10-18 (Lee). The Court pushed back on the Defendants' argument, noting that the final factor exists in every case that involves the IHS and suggested that the Defendants are relying only on the Claim's complexity to justify the fourteen-month delay. See Apr. 22, 2015, Tr. at 50:23-51:2 (Court). The Court said that, moreover, it had no context to determine what is a complex or run-of-the-mill claim. See Apr. 22, 2015, Tr. at 51:1-7 (Court). The Defendants responded that Sage Hospital bears the burden of showing that the fourteen-month delay is unreasonable and pointed out that Sage Hospital has introduced only its attorney's "unsupported statement" to demonstrate that the fourteen-month period is unreasonable. Apr. 22, 2015, Tr. at 51:15-16 (Lee).
When Sage Hospital took the floor for its rebuttal, it reiterated the distinctions that it made in the Reply between Design One and this case, and noted that the outer limit for deciding CDA claims is eleven months rather than fourteen months. See Apr. 22, 2015, Tr. at 53:3-24 (Court, Frye). In response to the Court's questioning, the Defendants said that only three or four of the IHS' 1,600 pending CSC claims are currently being litigated in federal court and that the IHS has resolved the vast majority of CSC claims through negotiations. See Apr. 22, 2015, Tr. at 55:2-21 (Court, Lee). Sage Hospital said that it prefers to litigate the Claim in federal court rather than pursuing informal negotiations with the IHS, because the IHS has not negotiated with it in good faith or treated it fairly. See Apr. 22, 2015, Tr. at 58:3-15 (Court, Frye). Sage Hospital said that the issues which the Court addressed in the MOO — i.e., the IHS' allegations that Sage Hospital is misusing federal funds — have tainted the IHS' relationship with Sage Hospital. See Apr. 22, 2015, Tr. at 58:19-59:22 (Court, Frye).
The Court asked the Defendants whether there are any factual disputes that would preclude summary judgment on Count IV, and the Defendants said that "the factual dispute is whether or not 14
The Court said that it would take the MSJ under advisement, but that it would prioritize the MSJ, because it seeks something similar to injunctive relief. See Apr. 22, 2015, Tr. at 69:1720 (Court). The Court noted that it was inclined to think that there is nothing in the record indicating that the Claim is particularly complex to justify the IHS taking fourteen months to rule on it. See Apr. 22, 2015, Tr. at 70:2-7 (Court). The Court stated that it was inclined to think that something closer to eleven or twelve months — would push the IHS' deadline up to August — is reasonable. See Apr. 22, 2015, Tr. at 70:8-21 (Court).
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the non-moving party's case.'" Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting) (emphasis in original).
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) ("However, the nonmoving party
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiff's version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:
Scott v. Harris, 550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:
Thomson v. Salt Lake Cnty., 584 F.3d at 1312 (brackets omitted). "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir.2009) (Tymkovich, J.) (unpublished),
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court," before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J., concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting)) (observing that, even if factual disputes exist, "these disputes are irrelevant
The ISDEAA authorizes the DOI or the HHS Secretary
Under an ISDEAA contract, the United States agrees to pay a tribal organization what it would have cost the federal agency to provide the services to tribal members had the agency implemented the program itself. See 25 U.S.C. § 450j-1(a)(1). In 1988, Congress amended the ISDEAA to also require the United States to reimburse tribal organizations for the "full amount" of their CSC. 25 U.S.C. § 450j-1(a)(2), (3). See ISDEAA Amendments of 1988, Pub.L. No. 100-472, § 201, 102 Stat. 2285. The ISDEAA explains that CSC
25 U.S.C. § 450j-1(a)(2). Such costs include overhead administrative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee Nation of Okla. v. Leavitt, 543 U.S. at 635, 125 S.Ct. 1172.
The ISDEAA also provides, however, that "[n]otwithstanding any other provision in [ISDEAA], the provision of funds under [ISDEAA] is subject to the availability of appropriations." 25 U.S.C. § 450j-1(b). Forced to reconcile these competing provisions, the Supreme Court of the United States of America has determined that, despite Congressional limits on appropriations to federal agencies — which covered only "between 77% and 92% of the tribes' aggregate contract support costs" — the agencies must still pay tribes and tribal organizations "the full amount of [CSC] incurred ... in performing their contracts." Salazar v. Ramah Navajo Chapter (RNC), ___ U.S. ___, 132 S.Ct. 2181, 2186, 2187, 183 L.Ed.2d 186 (2012). The
132 S.Ct. at 2195.
The ISDEAA mandates that the CDA governs CSC disputes between tribal organizations and the United States. See 25 U.S.C. § 450m-1(a), (d). Under the CDA, a tribal organization must first submit its CSC claim to a CO in writing. See 41 U.S.C. § 7103(a)(1), (2). The claim "need not be detailed, and may consist of a short written statement outlining the basis of the claim, estimating damages, and requesting a final decision." Menominee Indian Tribe of Wisc. v. United States, 764 F.3d 51, 55 (D.C.Cir.2014)(citing Arctic Slope Native Ass'n v. Sebelius, 583 F.3d 785, 797 (Fed.Cir.2009)("[S]ubmissions to the contracting officer need not be elaborate.")). If the claim is over $100,000.00, the tribal organization must certify that: (i) the claim is made in good faith; (ii) the supporting data are accurate and complete to the best of the tribal organization's knowledge and belief; (iii) the amount requested accurately reflects the contract adjustment for which the tribal organization believes the United States is liable; and (iv) the certifier is authorized to certify the claim on the tribal organization's behalf. See 41 U.S.C. § 7103(b)(1).
Within sixty days of receiving a claim over $100,00.00, the CO must either issue a decision or tell the tribal organization "of the time within which a decision will be issued." 41 U.S.C. § 7103(f)(2). The CDA mandates that a CO's decision on a CSC claim "shall be issued within a reasonable time, ... taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor." 41 U.S.C. § 7103(f)(3). If the CO fails to timely issue a decision, the claim is deemed denied. See 41 U.S.C. § 7103(f)(4). At that point, the tribal organization can: (i) appeal the decision to the Civilian Board of Contract Appeals or the Court of Federal Claims under the CDA, see 41 U.S.C. § 7104(a), (b)(1); or (ii) challenge the decision in federal district court under the ISDEAA. See 25 U.S.C. § 450m-1(a).
The ordinary process for filing a motion in the District of New Mexico involves: (i) the movant contacting all other parties and ascertaining whether they consent to the proposed motion,
Surreplies — briefs that a party opposing a motion files after the movant files his or her reply — are not ordinarily part of the briefing process. Local rule 7.4(b) provides: "The filing of a surreply requires leave of the Court." D.N.M. LR-Civ. 7.4(b). "A surreply is appropriate and should be allowed where new arguments are raised in a reply brief." Walker v. THI of N.M. at Hobbs Ctr., No. CIV 09-0060 JB/KBM, 2011 WL 2728344, at *1 (D.N.M. July 6, 2011) (Browning, J.). A party may request leave to file a surreply either before or after a hearing on the motion in question, but it is preferable that the surreply be filed before the hearing, so that the parties can come to the hearing fully informed on the issues and arguments. See Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 204 (D.N.M.2005)(Browning, J.). Although full-blown surreplies are the exception rather than the norm, any party may file with the court any "controlling authority" that he or she discovers after the briefing has closed — if the Court has already held a hearing. D.N.M. LR-Civ. 7.8(a). If a party files supplemental authority, he or she may accompany the authority with up to 350 words explaining the authority's applicability to the case before the Court; opposing parties may then file a 350-word response to the supplemental authority within seven days. See D.N.M. LR-Civ. 7.8(c).
Parties may also attach exhibits — such as affidavits or pages from deposition transcripts — to their briefs, but such exhibits are limited to a total of fifty pages.
The Tenth Circuit has articulated four factors for evaluating motions for continuance: (i) "the diligence of the party requesting the continuance"; (ii) "the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the continuance"; (iii) "the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance"; and (iv) "the need asserted for the continuance and the harm that [the movant] might suffer as a result of the district court's denial of the continuance." United States v. West, 828 F.2d 1468, 1470 (10th Cir.1987). The Tenth Circuit has also said that "[n]o single factor is determinative and the weight given to any one may vary depending on the extent of the [the movant's] showing on the others." United States v. West, 828 F.2d at 1470. "[T]he determination whether the denial of a continuance constitutes an abuse of discretion turns largely upon the circumstances of the individual case." Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir.2007) (citations omitted) (internal quotation marks omitted).
In Chavez v. Board of Education, No. CIV 05-0380 JB/CG, 2008 WL 6044569 (D.N.M. Oct. 20, 2008)(Browning, J.), the Court denied the defendant New Mexico Public Education Department's motion to vacate and reschedule the trial setting. See 2008 WL 6044569 at *8. The defendant contended that their alleged "star" witness, Connie Dembrowsky, would be unavailable for the trial setting on November 10, 2008, because she was scheduled to undergo surgery in early November and would recover in approximately six months. 2008 WL 6044569, at *1-3 (internal quotation marks omitted). The Court found that the defendant did not show "a lack of diligence" from its decision not to take her deposition. 2008 WL 6044569, at *3-4. The Court held that, although the defendant based its decision on difficult strategic and pragmatic concerns, and had interviewed the witness and produced a work-product memorandum on her potential testimony, the majority of the Tenth Circuit's factors weighed against granting
The Court will grant the Motion to File Surreply, because Sage Hospital raises new arguments in the MSJ Reply to which the Defendants should be allowed to respond. The Court will deny the Motion to Vacate, because vacating and continuing the April 22, 2015, hearing on the MSJ would prejudice Sage Hospital, and because the Defendants' sole reason for vacating and continuing the hearing — that Ms. Lee will not be able to attend in person — is ameliorated by allowing Ms. Lee to appear at the hearing via videoconference. Finally, the Court will grant the MSJ on two grounds. First, the Court will deem the Claim denied, because Dayish has not given Sage Hospital a date certain by which he will decide the Claim. Second, even if Dayish had given Sage Hospital a date certain by which he will decide the Claim, his proposed fourteen-month period for deciding the Claim is unreasonably long under the CDA. Accordingly, even if the Court did not deem the Claim already denied, it would order Dayish to approve or deny the Claim by July 25, 2015.
Under local rule 7.4(b), "[t]he filing of a surreply requires leave of the Court." D.N.M. LR-Civ. 7.4(b). The Court often grants surreplies when a party raises a new argument or new evidence in a reply brief. See Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728344, at *1 ("A surreply is appropriate and should be allowed where new arguments are raised in a reply brief." (citing Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. at 204)). A surreply gives the non-movant a chance to respond to the new information. See Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728344, at *1.
The Court will grant the Motion to File Surreply and will consider the MSJ Surreply, because Sage Hospital raises a number of new issues and introduces new evidence in the MSJ Reply. First, Sage Hospital discusses the Tuba City decision at length, arguing that it supports Sage Hospital's proposition that a tribal organization's failure to produce sufficient documentation to support its CSC claim does not provide an exception to the CDA's timing requirements. See MSJ Reply at 6-8. Second, Sage Hospital asserts that the Court should deem the Claim denied, because Dayish made the October 21, 2015, deadline for deciding the Claim contingent upon Sage Hospital's production of documents. See MSJ Reply at 17. Third, Sage Hospital introduces eight new exhibits.
Sage Hospital does not dispute that the MSJ Reply raises a number of new issues, but instead opposes the MSJ Surreply, because it is "improper and unenlightening." Motion to File Surreply Response at 3. Sage Hospital adds that, rather than
Moreover, Sage Hospital has now had three opportunities to respond to the MSJ Surreply: (i) the Response to Motion to File Surreply; (ii) the Court told Sage Hospital that it could file a formal response to the MSJ Surreply, see Apr. 10, 2015, Tr. at 6:23-7:7 (Court); and (iii) the Court said that Sage Hospital could address the Defendants' arguments from the MSJ Surreply at the April 22, 2015, hearing, see Apr. 10, 2015, Tr. at 6:23-7:7 (Court). Because Sage Hospital has had a full opportunity to respond to the MSJ Surreply, it will not suffer any prejudice from the Court's consideration of the MSJ Surreply. Accordingly, the Court will grant the Motion to File Surreply and will consider the MSJ Surreply. This disposition is fair to all parties and assists the Court in its resolution of the MSJ.
The Tenth Circuit has articulated four factors for evaluating motions for continuance: (i) "the diligence of the party requesting the continuance;" (ii) "the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the continuance;" (iii) "the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance;" and (iv) "the need asserted for the continuance and the harm that [the movant] might suffer as a result of the district court's denial of the continuance." United States v. West, 828 F.2d at 1470. Although the Defendants were diligent in their request for a continuance and the Motion to Vacate would accomplish the purpose underlying their need for a continuance, the inconvenience to Sage Hospital and the marginal harm caused by denial of the continuance outweighs the first two of the Tenth Circuit's four factors. The Court will, thus, deny the Motion to Vacate.
First, the Court has to resolve whether the Defendants acted diligently when they filed the Motion to Vacate. See United States v. West, 828 F.2d at 1470. Ms. Lee broke her ankle over the March 28, 2015, and March 29, 2015, weekend. See Motion to Vacate ¶ 5, at 1. The Defendants filed the Motion to Vacate on April 1, 2015. See Motion to Vacate at 1. It is unclear when Ms. Lee went to the doctor to have her leg examined or when she notified the rest of Defendants' counsel of her injury; even assuming that Ms. Lee was injured, went to the doctor, learned that she would be unable to travel to Albuquerque, and told Defendants' counsel about her predicament all on Saturday, March 28, 2015, the Defendants waited only three business days to file the Motion to Vacate. It is more likely, however, that Ms. Lee either did not learn of her inability to travel or did not inform her co-counsel of that information until Monday, March 30, 2015. In
Second, the Court needs to determine the likelihood that granting the Motion to Vacate will achieve the purpose underlying the Defendants' expressed need for the continuance. See United States v. West, 828 F.2d at 1470. The purpose of the continuance is to allow Ms. Lee — who is taking the lead on Count IV of the FAC — to argue the MSJ in person before the Court. See Motion to Vacate ¶ 4, at 1. The Defendants add that Ms. Lee is "highly experienced in the field and by far the most knowledgeable subject-matter expert on CSC" among the Defendants' counsel. Motion to Vacate ¶ 6, at 2. While granting the Motion to Vacate would achieve this purpose, this factor does not weigh heavily in the Defendants' favor.
Ms. Lee can fully argue the MSJ before the Court through videoconferencing technology. The Court has recently updated the technology in its courtroom and now has one of the most high-tech courtrooms in the country — complete with high-quality videoconferencing capabilities. Although many attorneys prefer to argue motions in person, and the Court thought the same thing when it was a practicing lawyer, the Court can confidently say — after nearly twelve years on the bench — that it does not make much, if any, difference to the Court whether it hears arguments in person, by telephone, or via videoconference. The Court has to resolve the issues one way or the other and does not feel more persuaded by in-person contact than hearing arguments in any other format. See Valencia v. Colo. Cas. Ins. Co., No. CIV 06-1259 JB/RHS, 2007 WL 5720341, at *1 (D.N.M. Nov. 21, 2007)(Browning, J.) ("[T]he Court is usually much more preoccupied with trying to get the decision right, looking at the materials and notes on the bench, and listening to counsel than it is with noticing who is speaking in person or who is on the telephone."). The Court has gotten used to telling people "no" all day, and it does not matter whether the person is in the room or not. New Mexico is a big state and the United States is a big country, and the Court spends a lot of its time talking over the telephone to help counsel and parties avoid the expense and inconvenience of traveling to Albuquerque for hearings. Moreover, the Defendants agreed to this solution at the April 10, 2015, hearing. See Apr. 10, 2015, Tr. at 4:1-5:12 (Court, Lee). Having Ms. Lee argue the MSJ by videoconference is not perfect, but the accommodation largely mitigates any prejudice to the Defendants of denying the Motion to Vacate.
Third, the Court needs to decide whether granting the Motion to Vacate will inconvenience Sage Hospital. See United States v. West, 828 F.2d at 1470. Sage Hospital argues that it would suffer prejudice from vacating the April 22, 2015, hearing and setting a later hearing, because the IHS' actions are jeopardizing Sage Hospital's very existence. See Motion to Vacate Response ¶ 6, at 3. Sage Hospital contends that the IHS' actions have already damaged Sage Hospital's relationships with its professional staff and the
The MSJ asks the Court to deem the Claim denied or order the Defendants to issue a decision on the Claim before October 21, 2015. Because of the nature of the MSJ, time is of the essence. Moving the April 22, 2015, hearing back to "the week of May 11 or thereafter," Motion to Vacate at 2, as the Defendants request, would delay the Court's resolution of the Claim, and make it more difficult for the Court to award Sage Hospital the relief it seeks in the requisite time period. Sage Hospital has waited for its day in court. The Court will not inconvenience Sage Hospital without adequate justification. Forcing Sage Hospital to delay a hearing that affects its continuing viability when the Court can fully hear Ms. Lee's arguments on the original hearing date places an unnecessary burden on Sage Hospital. Another attorney can appear at the hearing or Ms. Lee, the Defendants' first choice, can appear by videoconference.
Finally, the Court must determine the harm that the Defendants will suffer if it does not grant the Motion to Vacate. See United States v. West, 828 F.2d at 1470. The only justification that the Defendants have provided for the Motion to Vacate is their preference to have Ms. Lee argue the MSJ. See Motion to Vacate at 1-2. As the Court explained previously, Ms. Lee can fully argue the MSJ by appearing for the April 22, 2015, hearing via videoconference. The Court's videoconferencing equipment is very good, and Ms. Lee will effectively be present in every meaningful way. Accordingly, the Defendants will not suffer much, if any, prejudice if the Court denies the Motion to Vacate. Moreover, the other factors — that the Defendants acted diligently and that granting the Motion to Vacate would accomplish the underlying purpose of the continuance — not change the Court's analysis. The prejudice to Sage Hospital and the marginal harm to the Defendants in forcing Ms. Lee to appear by videoconference rather than in person heavily outweigh the other two factors.
The Court will grant the MSJ on two grounds. First, the Court will deem the Claim denied, because Dayish has failed to give Sage Hospital a date certain within which he will decide the Claim. Second, even if Dayish had given Sage Hospital a date certain within which he will decide the Claim, his proposed fourteen-month period for deciding the Claim is unreasonably long under the CDA. Accordingly, even if the Court did not deem the Claim already denied, it would order Dayish to approve or deny the Claim by July 25, 2015.
Within sixty days of receiving a CSC claim over $100,00.00, a CO must
Applying this standard, the Civilian Board of Contract Appeals has found COs' deadlines sufficiently specific where a CO's letter stated that a decision on the contractor's claim "will be issued on or before July 11, 1997." Defense Systems Co., 1997 WL 217392, at *1. The Civilian Board of Contract Appeals has similarly deemed CDA claims denied where the CO makes the decision deadline "contingent upon the occurrence of a future event." Pub. Warehousing Co. K.S.C., ASBCA No. 58078, 13 BCA ¶ 35,460, 2013 WL 6229356, at *1 (Nov. 12, 2013). In Aerojet General Corp., for example, the Civilian Board of Contract Appeals deemed a CDA claim denied where the CO's letter stated that he did not "anticipate issuing a final decision on this matter until the early March 1995 timeframe" and noted that he "would like it understood that [his] ability to meet this date is contingent upon [the contractor's] cooperation." 1995 WL 44259, at *1. Similarly, in Inter-Con Security Systems, Inc., ASBCA No. 45749, 93-3 BCA ¶ 26,062, 1993 WL 171650 (May 14, 1993), the Civilian Board of Contract Appeals deemed a CDA claim denied where the CO advised the contractor that she would render a decision "within 60 days of receipt of the audit report" that she intended to request. 1993 WL 171650, at *1. See Northrop Grumman Corp., ASBCA No. 52263, 00-1 BCA ¶ 30,676, 1999 WL 1116978 (Aug. 18, 1999)(deeming CDA claim denied where CO's letter stated "please be advised that a Contracting Officer Final Decision will be made no later than 90 days after termination of the ADR if the ADR process does not result in resolution of all issues").
The Dayish Ltr. states, in pertinent part:
Dayish Ltr. at 1 (emphasis omitted).
At the hearing, the Defendants clarified that the Dayish Ltr. sets forth a date certain by which the IHS will issue a decision on the Claim and that, if the IHS fails to issue a decision by that date, the Claim will be deemed denied. See Apr. 22, 2015, Tr. at 36:2-13 (Court, Lee). Contrary to the Defendants' contentions, the Dayish Ltr. does not set forth an unqualified date certain by which Dayish would decide the Claim. Instead, the October 21, 2015, deadline that the Dayish Ltr. sets forth is contingent "upon the anticipated cooperation of the NHF-SMH." Dayish Ltr. at 1. The Dayish Ltr. is thus more similar to the CO's letter in Aerojet General Corp., which made the CO's ability to meet the stated deadline contingent upon the contractor's cooperation, than the CO's letter in Defense Systems Co., which gave an unqualified date certain by which the CO would decide the CDA claim. Because the Dayish Ltr. fails to set forth a date certain by which Dayish will decide the Claim, but instead makes that deadline contingent upon Sage Hospital's cooperation, the Court will deem the Claim denied.
The Defendants say that the language in the CO decision letters in the "deemed denial" cases is "not at all similar to the IHS CO's language at issue here," pointing to the portion of the Dayish Ltr., which says: "`I will issue a final contracting officer's decision by October 21, 2015.'" MSJ Surreply at 9. The Defendants omit the first portion of the sentence that they quote, however, in which Dayish makes the
Holding otherwise and adopting a flexible standard for when a qualified date certain is permissible would encourage COs to test the CDA's boundaries, in the hopes that they could push their deadlines down the road just a little further. See Boeing Co. v. United States, 26 Cl.Ct. at 259 ("If a contracting officer is able to keep the administrative process alive with ambiguous assurances that a final decision will be issued some time in the future, the whole issue of whether the tolling provision was invoked would create a new source of useless litigation."). Encouraging such gamesmanship would undercut the CDA's purpose of "insur[ing] fair and equitable treatment to contractors and government agencies." S.Rep. No. 95-1118, at 1 (1978), reprinted in 1978 U.S.S.C.A.N. 5235, 5235. Accordingly, in this area of the law, "crisp rules with sharp corners are preferable to a round-about doctrine of opaque standards." Taylor v. Sturgell, 553 U.S. 880, 901, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (citation omitted) (internal quotation marks omitted). See Antonin G. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L.Rev. 1175, 1178-79 (1989) ("As laws have become more numerous, and as people have become increasingly ready to punish their adversaries in the courts, we can less and less afford protracted uncertainty regarding what the law may mean."). Companies that contract with the United States can, and should, expect an efficient and comprehensive resolution of their CDA claims. Part of that expectation is that the United States will set and abide by concrete, specific, and unqualified deadlines.
If the Court were to decide that Dayish had set a definitive deadline, the Court and Sage Hospital would be in a difficult position if Dayish decides down the road that Sage Hospital did not provide all of the necessary information and then moved the deadline. The Court and Sage Hospital would not be in a position to deal effectively with Dayish's hedging. The reality is that the Claim will be denied or deemed denied — today, in July, on October 21, 2015, or at some other date. Dayish need not reserve a decision on the Claim on a condition — that Sage Hospital provides more information — which is not going to happen. This uncertainty is unnecessary and inconsistent with the purpose underlying the CDA.
COs write their CDA decision letters. They are familiar with their own resources and should know how long it should take them to resolve different claims. They should therefore bear the responsibility of any ambiguity in their decision letters. See Orbas & Assocs. v. United States, 26 Cl.Ct. at 650 ("If it can be said that the [CO's] letter is susceptible of another reading, the court would simply observe that in this context the CO bears the responsibility of needless ambiguities."). It is within the United States' power to avoid this problem by simply and clearly stating when it will issue its decision, without any suggested, implied, or hinted contingencies; once it starts hedging, it runs the risk that the claim will be deemed denied. The Court will not allow the United States to avoid its responsibility of setting forth a concrete deadline for deciding the Claim in this case, because the problems can be easily avoided and the consequences to the Court and Sage Hospital are too great if
Within sixty days of receiving a claim over $100,00.00, the CO must either issue a decision or tell the tribal organization "of the time within which a decision will be issued." 41 U.S.C. § 7103(f)(2). Sage Hospital submitted the Claim to the IHS on August 24, 2014, and Dayish responded to the Claim fifty-nine days later, on October 23, 2014. See Dayish Ltr. at 1-2. If Dayish had provided a date certain by which he would respond to the Claim in the Dayish Ltr., his response would be timely under the CDA. The CDA further requires that a CO's decision on a CSC claim be issued within a reasonable time, "taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor." 41 U.S.C. § 7103(f)(3). The United States "may not indefinitely or unreasonably delay in issuing a decision, or the failure to act will be regarded a `deemed denial'" under the CDA. In re Eaton Contract Servs., 2003 WL 21255946, at *1. At issue is whether Dayish's proposed deadline for deciding the Claim — October 21, 2015 — is reasonable. The Court concludes that it is not.
The Civilian Board of Contract Appeals has explained that "[w]hether the date stated by a CO for issuance of a final decision is reasonable must be determined on a case-by-case basis." Kelly-Ryan, Inc., 2010 WL 5071059, at *1. "The party making a claim bears the burden of proof." Design One, slip op. at 3. Sage Hospital submitted the Claim to the IHS on August 24, 2014, seeking $62,569,681.00. See Claim at 1. The Claim consists of two parts: (i) the difference between Sage Hospital's incurred costs and CSC payments for FYs 2009-13, which total $36,258,493.00; and (ii) the third-party revenues that Sage Hospital lost because of the IHS' CSC underpayments for FYs 2009-13, which total $26,311,188.00. See MSJ Reply at 9-10. Sage Hospital submitted approximately 270 pages of documents with the Claim, including Sage Hospital's audited financial statements for FYs 2009-13, the contracts and funding agreements between Sage Hospital and the IHS, and multiple spreadsheets detailing Sage Hospital's CSC shortfalls, expectancy damages, and total claim amount. See Claim passim. The Claim expressly states that Sage Hospital has used the method of calculating shortfall that the IHS prefers-namely, full amount of CSC minus amount of CSC paid. See Claim at 2; CSC Spreadsheets at 2; McGee Decl. ¶ 3, at 1. The Claim explains the expectancy damages claim for lost third-party revenues and Sage Hospital's manner of calculating them. See CSC Spreadsheets at 2.
The Civilian Board of Contract Appeals has set forth a number of factors to determine a CDA claim's complexity, including: (i) whether resolving the claim requires external technical analysis, see Defense Systems, Co., 1997 WL 217392, at *1; (ii) whether the contractor has performed an audit before submitting the claim, see Dillingham/ABB-SUSA, 1998 WL 258456, at *1; (iii) the number of pages of which the claim consists, see Eaton Contract Servs., Inc., 2000 WL 1049161, at *1; and (iv) whether the CO has to locate personnel familiar with the
On the other hand, the Civilian Board of Contract Appeals has found a seven-and-a-half-month delay in issuing a decision on a $35,582,600.00 claim — was set forth in a twenty-eight-page narrative, a fifty-four-page cost-impact analysis, and a one-volume appendix — unreasonable. See Fru-Con Constr. Corp., 2002 WL 75878, at *1. Similarly, the Civilian Board of Contract Appeals found a fourteen-month delay unreasonable for a construction claim that was less than a million dollars and a sixteen-month delay unreasonable for an eleven-million-dollar claim. See Dillingham/ABB-SUSA, 1998 WL 258456, at *1. In Kelly-Ryan, Inc., the contractor sought $36,231,362.00 in damages for seven alleged contract breaches. See 2010 WL 5071059, at *1. Although the claim spanned 3,546 pages, and the CO contended that he lacked the information necessary to make "an intelligent, informed decision" on the claim, the Civilian Board of Contract Appeals found the CO's proposed twelve- and fourteen-month deadlines unreasonable. 2010 WL 5071059, at *1. The Civilian Board of Contract Appeals observed that "[w]e have found no Board cases, nor have we been cited to any by the parties, that have held more than 9 months to be a reasonable period of time within which to issue a CO's final decision." 2010 WL 5071059, at *1.
The Defendants have not cited a case in which the Civilian Board of Contract Appeals — or any other court — has found a CO's fourteen-month delay in deciding a CDA claim reasonable. Indeed, the Defendants have only cited one case that has upheld a delay of over nine months: Design One. In that case, the CO received the contractor's CDA claims "in early December" of 2010 and committed to issue a decision on the claim by November 15, 2011. Design One, slip op. at 1-2. The Civilian Board of Contract Appeals found the nearly eleven-month delay reasonable, because the contractor hired a consultant to evaluate its CDA claims three months after it had submitted them, waited five months after receiving the CO's letter to file its petition to shorten the timeframe for a decision, and provided no evidence to support its request for a shorter timeframe. See Design One, slip op. at 2. Against this backdrop of a de facto eleven-month limit for deciding CDA claims, the Court must determine whether Dayish's proposed fourteen-month delay for deciding the Claim is reasonable.
The Defendants urge that three extraordinary circumstances exist in this case that justify taking fourteen months to review the Claim: (i) the Claim's size: it is "huge" and "complex"; (ii) Sage Hospital did not provide adequate documentation to support the Claim; and (iii) the IHS has 1,600 pending claims to analyze. Apr. 22, 2015, Tr. at 50:10-18 (Lee). The Court will
Second, Sage Hospital's purported failure to provide sufficient documentation for the Claim does not justify Dayish's proposed fourteen-month delay for deciding the Claim. In Fru-Con Construction Corp., the Civilian Board of Contract Appeals rejected the same argument that the Defendants here advance. See 2002 WL 75878, at *1. There, the United States Army Corps of Engineers argued that its seven-and-a-half-month delay in issuing a decision on a CDA claim was reasonable, because the contractor failed to produce the relevant documents to support its claim. See 2002 WL 75878, at *1. The Civilian Board of Contract Appeals said that the United States Court of Appeals for the Federal Circuit "has made clear that a valid claim need not be accompanied by additional supporting documentation or detailed evidence of the alleged operative facts." 2002 WL 75878, at *1. The Civilian Board of Contract Appeals explained that, accordingly, "if the contracting officer believed [the contractor's] claim to be inadequately documented, her most effective response would have been simply to issue an adverse final decision denying the claim for lack of proof." 2002 WL 75878, at *1. Likewise, it is clear that Sage Hospital will not produce additional documentation to Dayish. See Apr. 22, 2015, Tr. at 58:3-15 (Court, Frye). If Dayish believes that the Claim is inadequately documented, his most effective response is to issue an adverse final decision denying the claim for lack of proof. Particularly when Sage Hospital does not appear to be inclined to produce more information to support the Claim, Dayish does not need an additional four months — from now until October 21, 2015 — to determine what he already knows.
Moreover, it appears that Sage Hospital provided all of the information that Dayish
Dayish Ltr. at 1-2.
Sage Hospital provided the first and second categories of information in the CSC Spreadsheets. See CSC Spreadsheets passim; McGee Decl. ¶ 4, at 2 ("Documents showing actual expenditures for direct and indirect costs associated with operation of the ISDEAA program for each fiscal year at issue were provided in [the CSC Spreadsheets]."). As for the third category of information, Sage Hospital did not rely on any capital expenditures, pass-through amounts, or other exclusions associated with its operations of ISDEAA programs. See McGee Decl. ¶ 4, at 2 ("The Claim does not include any costs related to capital expenditures, pass-through amounts, or other exclusions associated with the operation of the ISDEAA contract for any of the fiscal years at issue and therefore this item is not applicable to Sage."). The fourth category is essentially a catch-all paragraph, and does not specify any particular documents or categories of documents that Dayish is seeking. Although the MSJ Response points to the Blair Decl. and the Dayish Decl. in support of its contention that the "Defendants dispute that the claims are supported by the documentation submitted by Sage," MSJ Response ¶ 6, at 10 (citing Blair Decl. ¶¶ 13, at 5; id. ¶ 15, at 6; Dayish Decl. ¶¶ 18-19, at 5), the Blair Decl. does not include any information particular to Sage Hospital and the Dayish Decl. restates the information that the letter contains, see Blair Decl. ¶¶ 13, at 5; id. ¶ 15, at 6; Dayish Decl. ¶¶ 18-19, at 5. Moreover, the MSJ Surreply says nothing about what information Dayish still needs from Sage Hospital to decide the Claim. Having reviewed all of the information that Sage Hospital submitted with the Claim, the Court concludes that any lack of information from Sage Hospital does not justify a fourteen-month delay.
Third, and finally, the IHS' preferred method of resolving CSC claims and the influx of CSC claims since the Supreme Court of the United States' decision in
Salazar v. Ramah Navajo Chapter (RNC), 132 S.Ct. at 2195.
As the Honorable Sonia J. Sotomayor, Associate Justice of the Supreme Court of the United States' comments suggest, however, Congress created this dilemma and the IHS has to live with it until Congress fixes it. Neither the CDA nor the Civilian Board of Contract Appeals sets forth an exception to the CDA's timing requirements for overburdened federal agencies. Accordingly, the federal courts have neither the responsibility nor the authority to clean up the situation that Congress has created. The Court is sympathetic to the IHS' predicament, but that the IHS lacks the resources to timely resolve CSC claims is a problem in every case, and thus cannot justify an unprecedented fourteen-month delay in this one. Until Congress gives the IHS additional resources to handle the deluge of CSC claims or creates an exception to the CDA's reasonableness requirement for the IHS, the Court will not write such an exception into the law.
Faced with a similar argument in Fru-Con Construction Corp., the Civilian Board of Contract Appeals said that "[t]he purported scarcity of attorneys is a matter wholly and exclusively in control of the [federal agency], and in any event it is the contracting officer, not counsel, who is charged with preparing the final decision." 2002 WL 75878, at *1. The Court agrees. The scarcity of the IHS' resources, and its inability to handle the influx of CSC claims, are matters "wholly and exclusively" in the United States' control. The Court sees no reason why Sage Hospital should have to bear the burden of the IHS' organizational deficiencies.
Ultimately, Sage Hospital has presented sufficient information for the Court to conclude that the Claim is relatively straightforward and not unusually complex. The Claim is $57,284,201.60 million less than the $119,853,882.61 claim at issue in Public Warehousing Co., K.S.C., and encompasses only 270 pages — 3,276 pages less than the claim at issue in Kelly-Ryan, Inc. In light of the size and complexity of the claims that the Civilian Board of Contract Appeals has adjudicated, the Court has difficulty going beyond the eleven-month ceiling for deciding CDA claims that those cases establish.
The parties have gone back and forth on the meaning of the Tuba City decision. In Tuba City, after Dayish failed to meet the deadlines that he set for himself to decide Tuba City's CSC claims, he attempted to
The dispute between the parties is a curious one. The Defendants have noted that the IHS must deny all CSC claims, because it cannot pay off CSC claims from its appropriated funds. See Apr. 22, 2015, Tr. at 36:20-37:2-3 (Lee). Instead, the Defendants must pay for all CSC claims out of the Judgment Fund. See Apr. 22, 2015, Tr. at 36:20-37:2-3 (Lee). The Defendants have agreed that, consequently, Dayish either will deny the Claim by October 21, 2015, or the Claim will be deemed denied on that date. See Apr. 22, 2015, Tr. at 37:9-12 (Court, Lee). The Defendants have reminded the Court on numerous occasions that the large majority of tribes and tribal organizations have chosen to negotiate with the IHS to resolve their CSC claims rather than litigating them in federal court. Indeed, the Defendants noted at the hearing that only three or four of the IHS' 1,600 pending CSC claims are currently being litigated in federal court. See Apr. 22, 2015, Tr. at 55:2-21 (Court, Lee). Sage Hospital said that it prefers to litigate the Claim in federal court rather than pursuing informal negotiations with the IHS, because the IHS has not negotiated with it in good faith or treated it fairly. See Apr. 22, 2015, Tr. at 58:3-15 (Court, Frye). Sage Hospital asserts that the issues which the Court addressed in the MOO — i.e., the IHS' allegations that Sage Hospital is misusing federal funds — have tainted the IHS' relationship with Sage Hospital. See Apr. 22, 2015, Tr. at 58:19-59:22 (Court, Frye). Sage Hospital has every right to refuse to negotiate with the IHS. The Defendants' argument is close to saying that, because most federal cases settle, there should not be federal litigation. Congress has provided a litigation route; Sage Hospital is entitled to take it. That the large majority of tribes and tribal organizations choose to negotiate with the IHS rather than file claims in federal court, and that the IHS prefers tribes and tribal organizations to follow that route, does not mean that Sage Hospital is required to do so. It may be that, as the Defendants suggest, pursuing the CSC claim in federal court will ultimately cause Sage Hospital to have to wait longer to receive a settlement from the United States. Sage Hospital will have to live with that choice.
Ultimately, the Court is left with the Defendants asking for more time to conduct negotiations without a willing negotiating partner. If the Defendants know that they will deny the Claim and that Sage Hospital will not negotiate with them, the Court does not understand why the Defendants do not just deny the Claim today. The Court sees no sound reason why the Defendants should draw out this decision and delay the inevitable. The better course is to bite the bullet and allow Sage Hospital to challenge the denial. Accordingly, even if the Dayish Ltr. had set
25 U.S.C. § 450j-1(a)(2). Such costs include overhead administrative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 635, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005).
25 U.S.C. § 450b(1) (emphasis in original).
Response at 9-10 (citations omitted). The local rules state:
D.N.M. LR-Civ. 56.1(b). Because the Response does not specifically controvert the proposed fact, but instead provides additional facts, the Court will deem the proposed fact undisputed.
The Defendants did not comply with the local rules when they provided a "Statement of Facts" with four unlettered paragraphs which include multiple statements that do not "refer with particularity to those portions of the record upon which the non-movant relies." D.N.M. LR-Civ. 56.1(b). See Response at 6-8. Moreover, in another portion of the Response, the Defendants dispute one of Sage Hospital's proposed facts with four unnumbered and unlettered paragraphs that appear to restate and add more detail to the facts in the Defendants' "Statement of Facts." Response at 12-14. This approach not only fails to comply with the local rules, but is also confusing. As the local rules require, the non-movant should set forth all additional facts in lettered paragraphs. See D.N.M. LR-Civ. 56.1(b). These paragraphs should be grouped together rather than scattered throughout the Response. Although the Court could disregard these facts for the Defendants' failure to comply with the local rules, in the interest of fully and fairly resolving the MSJ, and because considering these facts does not prejudice Sage Hospital, the Court will address these facts as if the Defendants had properly included them in the Response.
Reply at 6-7 (emphases in Reply).
Sage Hospital responds:
Reply ¶ 6, at 19 (citations omitted).
The CSC Spreadsheet, which Sage Hospital attached to the Claim and cites in support of its proposed fact, sets forth a total dollar amount of expectancy damages from FY 2009-13 and Sage Hospital's manner of calculating them. See CSC Spreadsheet at 2. Whether Sage Hospital's expectancy damages claims are valid, whether Sage Hospital clearly explained how it lost income from third party billing, and whether Sage Hospital has Provided sufficient information to establish its expectancy damages claims are all legal issues that the Court will, if necessary, address in its analysis. The Defendants do not provide, however, any information disputing Sage Hospital's proposed fact that the Claim explains Sage Hospital's expectancy damages claims and Sage Hospital's manner of calculating them. Accordingly, the Court will adopt the proposed fact's modified version as undisputed.
Response ¶ 7, at 11 (citations omitted).
The Court will not adopt Sage Hospital's proposed fact, for two reasons. First, the El-Meligi 2d Decl. does not support Sage Hospital's assertion that the Dayish Ltr. is "an inapplicable form letter." MSJ ¶ 7, at 8. The portion of the El-Meligi 2d Decl. that Sage Hospital cites in support of this fact says that "IHS responded to Sage's Claim by a letter dated October 23, 2014 signed by Defendant Dayish." El-Meligi 2d Decl. ¶ 5, at 2. The El-Meligi 2d Decl. says nothing about the Dayish Ltr. being a form letter or it being inapplicable; that portion of Sage Hospital's proposed fact appears to be nothing more than an unnecessary rhetorical flourish. Second, even if the record supported Sage Hospital's proposed fact, whether the Dayish Ltr. is "inapplicable" is a legal determination that the Court will, if necessary, resolve in the analysis. MSJ ¶ 7, at 8. Although the Dayish Ltr. largely speaks for itself, in the interest of completeness, and because Sage Hospital does not dispute the Defendants' version of the proposed fact in the Reply, the Court will adopt the Defendants' version of the proposed fact as undisputed. See Response ¶ 7, at 11.
MSJ ¶ 8 at 4 (citing Dayish Ltr. at 1-2). The Defendants dispute this statement, arguing that
Response ¶ 8, at 11-12 (bold in Dayish Ltr.) (alterations in Response but not in Dayish Ltr.).
Sage Hospital does not cite any evidence in support of its assertion that IHS "failed to either read or comprehend the Claim." MSJ ¶ 8, at 4. Again, it seems that Sage Hospital is unnecessarily trying to weave its argument into its proposed facts. Accordingly, the Court will not adopt that portion of the proposed fact as undisputed. The Court has already adopted the remainder of the proposed facts by incorporating the Dayish Ltr. in its entirety, and the Court will not repeat itself here.
Sage Hospital also asks the Court to find undisputed that the Dayish Ltr.
MSJ ¶ 9, at 4 (citations omitted).
The Defendants respond: "The Defendants dispute that the documents provided by Sage are sufficient to support its claims or for IHS to conduct its costs-incurred analysis of the claims. Defendants further dispute that Sage's claim letter and exhibits properly explain or document the expectancy damages claim for lost third-party revenues." Response ¶ 9, at 12 (citations omitted).
The Court has already found it undisputed that: (i) the Claim is based on the incurred cost method shortfalls; (ii) Sage Hospital submitted a Schedule of Attachments A and B and Sage's audited financial statements from FY 2009-13; (iii) the Claim explains the expectancy damages claim for lost third-party revenues and the calculation thereof; and (iv) the "incurred cost" approach that Sage Hospital employed is the approach that the IHS favors. Whether the Dayish Ltr. "overlooks" those facts, and the remaining issues that the Defendants dispute are legal disputes, and not factual ones. The Court will, if necessary, address those disputes in its analysis.
Sage Hospital also asks the Court to find it undisputed that "[a]t no time during the over six months since Sage submitted its CSC claim has IHS asked for a single additional document from Sage." MSJ Reply ¶ 5, at 13 (citing Declaration of Todd McGee ¶ 4, at 15, filed March 19, 2015 (Doc. 53-2) ("McGee Decl.")). The Dayish Ltr. contradicts Sage Hospital's asserted fact:
Dayish Ltr. at 1-2 (emphases added). The Dayish Ltr. makes it clear that the IHS requested additional documentation from Sage Hospital. Accordingly, the Court will not deem the proposed fact undisputed.
MSJ Reply ¶ 7, at 19 (emphases in MSJ Reply but not in sources). The Defendants respond:
MSJ Surreply at 4.
Sage Hospital provides no support for its contention that "[t]he only claim pending before Dayish is Sage's, and Dayish has had Sage's claim, and no other, before him for analysis since `late 2014.'" MSJ Reply ¶ 7, at 19. The remainder of the paragraph in which Sage Hospital sets forth this fact similarly does not support it. That Dayish has engaged in settlement negotiations with Utah Navajo Health System and the Navajo Nation does not mean their claims are longer pending before Dayish. As the Defendants point out, "[t]he CDA claims of Utah Navajo Health System and the Navajo Nation's claims are also pending before Mr. Dayish." MSJ Surreply at 4. In other words, those settlement negotiations are still ongoing. That Dayish is engaged in settlement negotiations with those organizations does not mean that they are no longer pending,
MSJ ¶ 10, at 4-5.
The Defendants respond:
Response at 12-14 (citations omitted).
As the length of the Defendants' response indicates, Sage Hospital's proposed fact is legal argument. Indeed, it is the crux of Count IV upon which Sage Hospital seeks summary judgment: that the IHS' action in taking fourteen months to rule on the Claim is unreasonable and violates the CDA and the ISDEAA. Accordingly, the Court will not adopt the proposed fact as undisputed, but will instead address the legal issues that the parties raise in its Analysis.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that Rhoads v. Miller has persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion and Order.
Second, the party could file a motion for page extension before filing his or her substantive brief. This form is a safer approach than the first form, because there is no risk of the Court striking or ignoring the brief. It also lets the party know, in advance of filing the substantive brief, the page limit with which he or she must work. On the other hand, the Court may be the least apt to grant this form of motion, as the Court-not having seen any attempt by the party to tailor the substantive brief to the page limit-may wonder why the party feels the need to be preemptively excused from the local rules' page limits.
Third, the party could file the motion along with his or her substantive brief, where the substantive brief complies with the relevant page limit. This form is safer than the first form, because, if the Court denies the page extension, the party still has a complete, intact brief upon which to stand. With this approach, the movant could either attach a copy of the proposed additional material with his or her motion for page extension-thus maximizing the odds that the Court will allow the extension by capitalizing on the psychological pressure it puts on the Court that the additional material has already been written — or put off writing the additional material until the Court grants the page extension — thus avoiding the possibility of wasted work if the Court denies the page extension.
With this judge, it is probably not going to matter what form a party chooses. The Court is inclined to let parties have their say, within reason. The Court wants to have arguments in writing in advance of the hearing, and, if anyone did not get all of his or her points across in the briefing, then orally at the hearing. The Court would always rather have too much information in front of it than too little when making a decision.
