TANANA CHIEFS CONFERENCE v. AZAR et al
MEMORANDUM OPINION AND ORDER: For the reasons explained herein, it is hereby ORDERED that Defendants' motion to dismiss is DENIED. See document for details. Signed by Judge Randolph D. Moss on 09/15/2022. (lcrdm1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TANANA CHIEFS CONFERENCE,
Civil Action No. 20-2902 (RDM)
XAVIER BECERRA, Secretary of U.S.
Department of Health and Human Services, et
MEMORANDUM OPINION AND ORDER
Plaintiff Tanana Chiefs Conference (“TCC”) brings this breach-of-contract action against
the Secretary of the Department of Health and Human Services and the Director of the Indian
Health Service (collectively, “IHS”) seeking damages for IHS’s failure to pay TCC certain
amounts allegedly due under an agreement between the parties known as the Alaska Tribal
Health Compact.1 Dkt. 1 (Compl.). IHS moves to dismiss the case for lack of subject-matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), Dkt. 15, arguing that (1) TCC
failed to comply with the presentment requirement contained in the Contract Disputes Act
(“CDA”), 41 U.S.C. §§ 7101, et seq., and, then, attempting to rectify that misstep, (2) TCC
changed the nature of its claim before this Court, again in violation of the CDA. Dkt. 15-1 at 6.
Pursuant to Fed. R. Civ. P. 25(d), the current Secretary of Health and Human Services, Xavier
Becerra, and the current Director of IHS, Elizabeth A. Fowler, are “automatically substituted” as
parties with no effect on TCC’s “substantial rights.” Fed. R. Civ. P. 25(d).
The Court is unpersuaded. The claim that TCC submitted to IHS gave the agency
“adequate notice of the basis and amount of the claim,” and that is all that is required. Cont.
Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987). And although TCC’s
claim before this Court is not identical to the one that it presented to IHS, it is “based on the
same set of operative facts underlying the claim presented to [IHS],” which, once again, is all
that the CDA requires. Tunica-Biloxi of La. v. United States, 577 F. Supp. 2d 382, 409 (D.D.C.
2008) (internal quotation marks omitted) (alteration in original).
The Court will therefore DENY IHS’s motion to dismiss.
IHS is a component of the Department of Health and Human Services (“HHS”) charged
with providing medical and public health services to American Indian and Alaska Native people.
See Lincoln v. Vigil, 508 U.S. 182, 185 (1993). It is responsible for administering federal health
care programs for the benefit of these communities in the first instance. See 25 U.S.C. § 1661(c).
But under the Indian Self-Determination and Education Assistance Act (the “ISDEAA”), 25
U.S.C. § 5301 et seq., a tribe can elect to contract with the Secretary of HHS (through IHS) to
take over the operation and administration of these programs, id. § 5321(a)(1). ISDEAA
contracts come in different forms, two of which are relevant here. A “self-determination
contract,” authorized by Title I of the ISDEAA, is a discrete agreement for the transfer of
responsibility over a federal program. Id. A “self-governance compact,” authorized by Title V,
is a more involved agreement that “set[s] forth the general terms of the government-togovernment relationship between the Indian tribe and the Secretary.” Id. § 5384(b). A compact
can entail the transfer of responsibility over multiple government programs to the tribe or tribal
organization and is accompanied by a funding agreement detailing the funds the federal
government will provide for the operation and administration of these programs. Id. § 5385.
In either case, IHS agrees to provide two types of funding to the tribe or tribal
organization with which it has contracted. Id. § 5325(a). The first, known as the “baseline” or
“Secretarial amount,” Tunica-Biloxi Tribe of La., 577 F. Supp. 2d at 388, is a quantum of
funding “not . . . less than” the Secretary would have provided for the operation of the relevant
program had it remained under federal management, 25 U.S.C. § 5325(a)(1). The second type is
for “contract support costs” (“CSCs”). Id. § 5325(a)(2). These cover the incremental
administrative expenses that a contracting tribe or tribal organization incurs to manage and
oversee the contract appropriately. Id.; Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 634–
35 (2005). The statute subdivides CSCs into two further categories: direct and indirect. 25
U.S.C. § 5325(a)(3)(A). Direct contract support costs pertain to a particular program and include
items such as workers’ compensation insurance and training costs for employees dedicated to
that program. See Cherokee Nation, 543 U.S. at 635; Dkt. 1 at 11 (Compl. ¶ 33). Indirect
contract support costs, by contrast, cover overhead costs for items that benefit multiple programs
and include items such as information technology expenses and the cost of financial management
tools. See id.; 25 U.S.C. § 5325(a)(3)(A)(ii); Dkt. 1 at 9 (Compl. ¶ 26).
Because indirect costs relate to overhead benefiting more than one program, IHS and the
contracting tribe or tribal organization try to allocate these costs amongst the various programs
they support. Dkt. 1 at 9 (Compl. ¶ 26). This cost allocation is typically accomplished using
what is known as an “indirect cost rate,” a ratio calculated by dividing the total indirect costs by
the total amount of direct costs of all the programs to which the indirect cost pool pertains. Id.
(Compl. ¶¶ 26–27). The resulting ratio is then applied to the direct costs of each individual
program to determine the dollar value of indirect costs attributable to that program. Id. (Compl.
Disputes that arise under the ISDEAA are subject to the CDA, 25 U.S.C. §§ 5331(d),
5391(a), which provides a “comprehensive framework for resolving contract disputes between
executive branch agencies and government contractors,” Menominee Indian Tribe of Wisc. v.
United States, 614 F.3d 519, 521 (D.C. Cir. 2010). The CDA contains a “mandatory
administrative process”—referred to as “presentment”—that “requires contractors to present
‘[e]ach claim’ they have to a contracting officer for decision.” Menominee Indian Tribe of Wisc.
v. United States, 577 U.S. 250, 252 (2016) (alteration in original) (quoting 41 U.S.C. § 7103(a)).
Once a claim has been presented, a contracting officer must provide a final decision on the claim
within a specified period, typically 60 days. 41 U.S.C. §§ 7103(d), 7103(f)(1)–(2). “Failure by a
contracting officer to issue a decision on a claim within the required period of time is deemed to
be a decision by the contracting officer denying the claim.” Id. § 7103(f)(5).
After this process has run its course, dissatisfied claimants have a right to challenge the
contracting officer’s decision. The CDA typically allows claimants to appeal to an agency board
or to seek judicial review in the United States Court of Federal Claims. Id. § 7104(a)–(b)(1).
The ISDEAA provides tribes and tribal organizations a third option: review in federal district
court. 25 U.S.C. § 5331(a).
Except where specifically controverted by evidence submitted in support of IHS’s motion
to dismiss for lack of jurisdiction, the following allegations are taken as true for purposes of the
pending motion. See Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.
The Tanana Chiefs Conference is an Alaska-based tribal health organization—an “Indian
Tribe” under the ISDEAA—comprised of forty-two Alaska Native member villages. Dkt. 1 at 2
(Compl. ¶ 5). It is a party to the Alaska Tribal Health Compact (the “Title V Compact”), a selfgovernance compact under Title V of the ISDEAA between a number of Alaskan tribes and
tribal organizations and IHS. Id. (Compl. ¶ 5). In 2013, TCC was also party to a separate Title I
self-determination contract (the “Title I Contract”) with IHS pertaining to one of TCC’s member
tribes, the Native Village of Tanana. Id. at 5 (Compl. ¶ 12).
Under the Title V Compact, TCC operates and administers a variety of federal health care
programs and receives funding for these activities through a funding agreement incorporated into
the compact. Id. (Compl. ¶¶ 7–8, 11, 15). During the period relevant to this litigation, the Title
V Compact operated pursuant to a multiyear funding agreement known as the “FY 2011-2013
FA.” Id. at 4–5 (Compl. ¶ 11). That funding agreement, like other such agreements, required
IHS to pay TCC the “Secretarial amount” as well as both direct and indirect contract support
costs, as those concepts are defined in 25 U.S.C. § 5325. Id. at 5–7 (Compl. ¶¶ 15–19). For
purposes of the Title V Compact, indirect costs were calculated using the indirect cost rate
methodology, and TCC’s indirect cost rates were developed for separate subparts of direct costs,
resulting in multiple indirect cost rates. Id. at 9–10 (Compl. ¶¶ 27–29).
This litigation concerns the amount of contract support funding IHS owes TCC for fiscal
year 2013. Id. at 10–11 (Compl. ¶¶ 31, 34). Although the merits of the parties’ dispute are not at
issue today, the short of it is that TCC alleges that IHS did not adequately reimburse it for both
its direct and indirect contract support costs. Id. (Compl. ¶¶ 31, 34). As to the former, TCC
contends that IHS failed to pay TCC in full for its direct contract support costs. Id. at 11 (Compl.
¶ 34). With respect to the latter, TCC alleges that IHS applied the relevant indirect cost rate to
the wrong direct cost base, resulting in IHS underpaying TCC. Id. at 10 (Compl. ¶ 31).
On September 30, 2019, TCC sent a claim letter to IHS requesting reimbursement for the
contract support costs that it contends IHS improperly withheld in 2013. Id. at 13 (Compl. ¶ 42).
The subject of the letter was: “Contract Disputes Act claim for unpaid contract support costs due
in FY 2013 under Indian Self-Determination Act Compact and associated Funding Agreements.”
Dkt. 1-4 at 1. The letter begins with the following text and table:
The Tanana Chiefs Conference (TCC) hereby claims the right to immediate
payment of $12,153,793 plus interest, due and owing to TCC under the provisions
of the above-referenced Compact and associated funding agreements, as amended,
in effect between the parties for fiscal year 2013:
IDC & DCSC
Id. (emphasis added). The letter goes on to explain that “[d]uring the covered years, TCC’s
Compact, funding agreements, indirect cost agreements, and the ISDEAA obligated the United
States to pay TCC no less than the full amount of contract support costs, including indirect costs
and direct contract support costs, associated with TCC’s operation of the IHS programs,
functions, services, and activities specified in TCC’s contracts with IHS, as amended.” Id.
(emphasis added). It further states that TCC’s claims “seek the sums set forth above and,
without limitation, all other damages arising out of IHS’s failure to pay full contract support
costs as required by the ISDEAA and TCC’s contracts.” Id. at 2. (emphasis added). These
claims, TCC adds, are “supported by the originals of all contracts, contract modifications,
funding agreements, amendment thereto, indirect cost rate agreements, and audits, all of which
are in the custody of the Government.” Id. at 2 (emphasis added).
Appended to the letter are two pages of financial schedules. The first page sets forth
TCC’s preferred methodology for categorizing costs. Id. at 2, 5. The second page sets forth an
alternative methodology should IHS disagree with TCC’s preferred approach and, instead,
require “that claims for direct and indirect CSC . . . be further broken down according to the
portion of TCC’s health program funded by IHS appropriated funds versus other funding
sources.” Id. at 2, 6. As the letter explains, TCC provided this alternative analysis “to facilitate
the agency’s review of these claims.” Id. at 2. For both methodologies, however, the left
column on the schedule includes the contract numbers for both the Title I Contract and the Title
V Compact, and right most column of the schedule, which contains the dollar value figures, is
labeled “TANANA CHIEFS CONFERENCE Title I & V Agreements.” Id. at 5, 6.
IHS responded to TCC’s claim letter on November 26, 2019, with two almost identical
letters—one addressing TCC’s Title I Contract and the other addressing TCC’s Title V Compact.
Both responses assert: “IHS hereby determines that the [TCC claim] letter does not constitute a
proper claim under the CDA,” because it did not adhere to the “requirement that a claim ask for
payment of a specific sum of money under the contract,” as mandated by 25 C.F.R.
§ 900.218(a)(1). Dkt. 1-5 at 1–2. According to IHS, TCC’s letter did not specify “which
contract has been breached for what amount,” but, rather, “assert[ed] claim(s) for breaches of
two contracts and/or funding agreements or compact for $12,153,793, without information
regarding the amount at issue as to either contract.” Id. As a result, according to IHS, “[t]he
[claim] letter and attachments did not state a sum certain under the contract in accordance with
the law,” and “the awarding official [was] not required to render a decision on the claim or
TCC filed this lawsuit on October 9, 2020, asserting four breach-of-contract claims and
one claim for breach of the ISDEAA. Dkt. 1 at 17–21 (Compl. ¶¶ 60, 64,70, 72, 78). TCC asks
the Court for declaratory relief; $10,386,464 in damages plus interest; and fees and costs. Dkt. 1
at 22. The $10,386,464 in damages that TCC seeks is equal to the $12,153,793 it sought before
IHS, less the $1,767,329 it requested at that time for “Expectancy Damages from Additional IDC
[(indirect costs)] on Unfunded IDC & DCSC [(direct contract support costs)].” Dkt. 1 at 21 n.4,
22; Dkt. 1-4 at 1.
TCC’s complaint disavows any claim under the Title I Contract and states that TCC has
only ever sought damages related to the Title V Compact. Dkt. 1 at 5, 13, 15 (Compl. ¶¶ 12, 43,
47). Although TCC “acknowledges that the heading of one of the columns in the calculations
tables referenced its Title I contract,” it contends that these tables were not part of its “claim,”
which was embodied only in the claim letter. Id. at 15 (Compl. ¶ 47). From TCC’s perspective,
the data tables were analytical aides that TCC included in its submission merely to help IHS
review TCC’s claim and that do not negate the claim letter’s focus on the Compact. Id. (Compl.
¶ 47). All that matters, according to TCC, is that the letter only sought payment pursuant to the
“Compact and associated Funding Agreements.” Dkt. 1-4 at 1.
IHS moves to dismiss TCC’s complaint for lack of subject-matter jurisdiction. Dkt. 15.
IHS’s position is that TCC failed properly to present its claim at the administrative level and
therefore failed to satisfy a mandatory prerequisite to this Court’s jurisdiction under the CDA
and ISDEAA. Dkt. 15-1 at 17. In addition, IHS argues that TCC’s complaint represents an
improper effort to cure its defective presentment and to circumvent the CDA’s procedures. Id. at
17, 19–22. As IHS sees it, TCC initially brought claims under both its Title V Compact and
Title I Contract but now seeks damages only for breach of its Title V Compact. Id. at 19–22.
That, IHS insists, amounts to TCC pursuing a different claim judicially than it did
administratively, something the CDA forbids. Id.
Whether TCC Adequately Submitted a “Claim” to IHS
“Subject matter jurisdiction defines the [tribunal’s] authority to hear a given type of
case.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). The issue of subjectmatter jurisdiction arises here because TCC is suing the United States and its agencies (through
its officers), and, “[a]bsent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Because “[s]overeign immunity
is jurisdictional in nature[,] . . . the ‘terms of the [the United States’] consent to be sued in any
court define that court’s jurisdiction to entertain the suit.’” Id. (third alteration in original)
(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). As the Court will explain in
more detail shortly, the ISDEAA contains a limited waiver of sovereign immunity, 25 U.S.C.
§ 5331(a), but it conditions that waiver on a party presenting its claim to a contracting officer for
decision before suing in federal court, id. § 5331(d); 41 U.S.C. § 7103(a)(1).
Although the plaintiff bears the burden of demonstrating that the court has subject-matter
jurisdiction, the nature of that burden varies depending on the stage of the proceeding. Lujan v.
Defs. Of Wildlife, 504 U.S. 555, 561 (1992). At the motion-to-dismiss stage, it is often sufficient
for the plaintiff to allege facts sufficient to sustain the court’s jurisdiction. Id. But an opposing
party may increase the stakes by “pos[ing] a ‘factual’ challenge to the Court’s jurisdiction,” Hale
v. United States, No. 13-1390, 2015 WL 7760161, at *3 (D.D.C. Dec. 2, 2015), which requires
the court to “go beyond the pleadings and [to] resolve any disputed issues of fact the resolution
of which is necessary to a ruling upon the motion to dismiss,” Phoenix Consulting Inc., 216 F.3d
at 40. When the movant raises such a factual challenge, the Court may consider the
uncontroverted allegations contained in the complaint, any undisputed facts, and “the court’s
resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
Although IHS asks the Court to consider two documents that were not attached to the
complaint, which it suggests support its thesis that the schedules attached to TCC’s claim
“appear to derive their values from both the Title I Contract and the Title V FY 2013 Funding
agreement,” Dkt. 15-1 at 22, the pending motion more closely resembles a facial, rather than a
factual, challenge to the Court’s jurisdiction. For one thing, IHS has not offered a declaration
explaining the calculation that it asks the Court to make. But, more importantly, the dispute
between the parties is, in relevant respects, principally a dispute about how best to characterize
TCC’s September 30, 2019 claim letter, and not a dispute about the underlying facts. In this
sense, TCC’s allegation that it did not submit a claim for payment under its Title I Contract is not
a “factual” allegation entitled to a presumption of truth, see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (conclusory statements and legal conclusions need not be accepted as true), nor is it
dispositive of the question presented. And, by the same token, IHS’s contention that the
schedules “appear to derive their value from both the Title I Contract and [the] Title V” Compact
does not resolve the matter. Dkt. 15-1 at 22. Rather, the question presented is simply whether
TCC’s letter provided IHS with sufficient notice of TCC’s claim to trigger the applicable waiver
of sovereign immunity.
As noted above, the ISDEAA waives sovereign immunity for certain disputes arising
under its provisions, 25 U.S.C. § 5331(a), and incorporates the procedural requirements of the
CDA, id § 5331(d). To avail itself of the ISDEAA’s sovereign-immunity waiver, a party must
adhere to those of the CDA’s requirements that constitute the preconditions of the United States’
consent to suit. See James M. Ellett Const. Co., Inc. v. United States, 93 F.3d 1537, 1541–42
(Fed. Cir. 1996). The Court of Appeals for the Federal Circuit, the court of appeals most often
tasked with review of CDA actions, see 41 U.S.C. § 7104(b)(1); 28 U.S.C. § 1295(a)(3), has held
that presentment is one such requirement, explaining that absent “both a valid claim . . . and a
contracting officer’s final decision on that claim,” courts lack jurisdiction to hear actions brought
under the CDA. James M. Ellett Const., 93 F.3d at 1541–42; M. Maropakis Carpentry, Inc. v.
United States, 609 F.3d 1323, 1327–28 (Fed. Cir. 2010). This Court has held the same, and the
parties have not urged the Court to adopt a contrary view. Tunica-Biloxi Tribe of La., 577 F.
Supp. 2d at 407–08. Accordingly, to meet its burden of establishing that this Court has
jurisdiction, TCC must show that it presented its claim to IHS in accordance with the CDA and
that it now brings suit respecting that same claim.
The first part of the inquiry turns on whether TCC’s submission meets the definition of a
“claim” under the CDA and ISDEAA. IHS regulations define the term “claim” to mean “a
written demand by one of the contracting parties, asking for one or more of the following: (1)
[p]ayment of a specific sum of money under the contract; (2) [a]djustment or interpretation of
contract terms; or (3) [a]ny other claim relating to the contract.” 25 C.F.R. § 900.218(a). This
definition echoes the definition of a CDA “claim” contained in the Federal Acquisition
Regulations: “[a] written demand or written assertion by one of the contracting parties seeking,
as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of
contract terms, or other relief arising under or relating to the contract.” 48 C.F.R. § 52.233-1(c).
All agree that TCC’s letter to IHS was a written demand asking for payment of money. The
question, therefore, is whether this demand was “specific” and “under the contract” in question
in the relevant sense.
IHS says the answer is no. It points to Federal Circuit precedent that reads the statute and
regulations to require “a clear and unequivocal statement that gives the contracting officer
adequate notice of the basis and amount of the claim.” Dkt. 15-1 at 18 (quoting Cont. Cleaning
Maint., 811 F.2d at 592). And TCC’s claim was, in IHS’s view, “anything but clear.” Id. What
troubles IHS about TCC’s letter is that, although it repeatedly discusses the Title V Compact, it
also contains some indications that TCC was seeking relief under the Title I Contract as well.
Notably, the letter references “contracts,” in the plural, several times. Dkt. 15-1 at 19. The
schedules attached to the letter also mention both contracts and, according to IHS (and TCC does
not dispute it), they have the contract numbers for both contracts listed at the top. Id. IHS
argues that these references rendered TCC’s submission “so opaque” with respect to what sum of
money TCC was asking for and under which contract that IHS was never put on notice of the
basis and amount of TCC’s claim. Id. at 18–19.
The Court declines to accept such an exacting interpretation of what is, as IHS
acknowledges, a mere notice requirement. The Court of Federal Claims has repeatedly
explained that evaluating the sufficiency of a claim for presentment purposes is a practical, rather
than a technical exercise, and that a claim need only “be stated in a manner which allows for
reasonable determination of the recovery available at the time the claim is presented and/or
decided by the contracting officer.” Metric Constr. Co. v. United States, 1 Cl. Ct. 383, 391
(1983). Whether a claimant provided adequate notice is thus a “common sense analysis” that
“views the contractor’s submission as a whole.” CPS Mech. Contractors, Inc. v. United States,
59 Fed. Cl. 760, 763 (2004); id. (noting that “[t]o be adequate” a claim need only “sufficiently
inform the [contracting officer] of what is being claimed such that the CO can meaningfully
review the claim”); see also Menominee Tribe of Wis. v. United States, 764 F.3d 51, 55 (D.C.
Cir. 2014), aff’d, 577 U.S. 250 (2016) (explaining that a claim request “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”). A contractor’s submission can meet this threshold even if
some of the factors on which the contractor’s demand is based “are, or will be disputed,” Metric
Constr., 1 Cl. Ct. at 391, or if some amount of work on the contracting officer’s part is required
to determine the claimant’s bottom-line, see Tunica-Biloxi Tribe of La., 577 F. Supp. at 410
(noting that although a claimant’s submission was “hardly a model of clarity, it nevertheless
provide[d] sufficient information for a reviewing agency like IHS to calculate the amount of
damages alleged for each claim through ‘simple arithmetic’” (quoting Metric Constr., 1 Cl. Ct. at
392)). Nor, finally, need the sum certain requested even be the correct measure of what the
claimant is owed, when all is said and done. See Sun Eagle Corp. v. United States, 23 Cl. Ct.
465, 472 (1991). The point of the administrative review process, after all, is to vet the accuracy
of claims and to resolve disputed facts. In sum, although presentment imposes certain nonnegotiable obligations on claimants, the bar for meeting those obligations is not as high as IHS
suggests. The purpose of the notice requirement is to provide an opportunity for the contracting
officer to review the claim, not to weed out claims or to limit the government’s exposure.
Viewed under the appropriate standard, TCC’s claim was adequate. The table on the first
page of its claim letter not only sets forth the total value of TCC’s claim—$12,153,793—it also
breaks that total down into its constituent parts so that its basis can be better understood. Dkt. 1-
4 at 1. IHS does not dispute that the claim was for a sum certain and that it was for identified
categories of costs.
Instead, IHS’s argument turns on the contention that TCC failed to attribute the amount
sought “to either of [the] two unique contracts in effect during the timeframe at issue.” Dkt. 15-1
at 17. That contention, however, is difficult to square with the words that appear in the claim
letter itself. To start, the letter is captioned: “Contract Disputes Act claim for unpaid contract
support costs due in FY 2013 under Indian Self-Determination Act Compact and associated
Funding Agreements.” Dkt. 1-4 at 1. There is little doubt that the “Compact” refers to the Title
V Compact at issue in this case, and the parties agree that the Compact was accompanied by an
“associated” funding agreement, which was itself subject to “modifications,” see Dkt. 15-1 at 7,
11; Dkt. 1 at 4-5 (Compl. ¶¶ 11, 13); Dkt. 17 at 6-7. Read in this light, a contracting officer
would have little difficulty in construing the caption of the claim letter to seek relief under the
Title V Compact, the FY 2011-2013 Funding Agreement, and any related modifications to those
agreements. Significantly, the caption says nothing about the Title I Contract.
The body of the letter reaffirms this understanding. The very first sentence seeks
“payment of $12,153,793 plus interest, due and owing to TCC under the provisions of the aboverefenced Compact and associated funding agreements, as amended, in effect between the parties
for fiscal year 2013.” Dkt. 1-4 at 1. Again, that assertion is unambiguous and does not even hint
at a claim under the Title I Contract. Then, after including a chart specifying the specific
categories of costs at issue and explaining that the claim was submitted pursuant to the CDA and
ISDEAA, the letter continues: “During the covered years, TCC’s Compact, funding agreements,
indirect cost agreements and the ISDEAA obligated the United States to pay TCC no less than
the full amount of contract support costs, including indirect costs and direct contract support
costs, associated with TCC’s operation of the IHS program, functions, services, and activities
specified in TCC’s contracts with IHS, as amended.” Id. Once again, the claim is
unambiguously premised on the “Compact” and the associated agreements.
Taken as a whole, the letter constituted a “clear and unequivocal statement” that gave
IHS “adequate notice of the basis and amount of the claim.” Cont. Cleaning Maint., 811 F.2d at
592. Upon reading the letter, the contracting officer would have known how much money TCC
wanted and the reasons why it thought it was entitled to it. Nothing more is needed. There was
no mistaking that TCC was claiming funds allegedly owed under the Title V Compact.
In response, IHS observes that TCC’s claim letter thrice uses the plural “contracts”
instead of the singular “contract.” Dkt. 15-1 at 19, 21; Dkt. 19 at 6, 8–9. That usage might
reasonably be explained by the fact that TCC’s Title V Compact claim involved multiple
agreements—the Compact itself, the funding agreement, and any modifications to that
agreement. Dkt. 1-4 at 2. But, even if TCC was arguably sloppy at times and used the plural
when the singular was called for, that imprecision is far from sufficient to overcome the letter’s
repeated, clear assertions that the claim sought payment for amounts due under the Compact and
“associated” agreements. IHS never suggests that the Title I Contract was an “associated”
agreement for these purposes, and, indeed, one can easily imagine that the agency would have
declined to consider a claim for damages under the Title I Contract had TCC sought such relief
while merely referring to an “associated” agreement.
In any event, it cannot reasonably be maintained that a few instances of plural rather than
singular language rendered TCC’s request inscrutable or mysterious. “The content, not the
form,” of a submission “determines what is sought in the claim.” Bruhn Newtech, Inc. v. United
States, 129 Fed. Cl. 656, 663 (2016). “[N]o magic words”—or magic forms of tense— “[are]
required.” Id.; see Placeway Constr. Corp. v. United States, 920 F.2d 903, 908 (Fed. Cir. 1990)
(“[T]his court [has] de-emphasized the importance of the form in which claims are submitted,
stating, ‘We know of no requirement in the Disputes Act that a “claim” must be submitted in a
particular form or use any particular wording.’” (quoting Cont. Cleaning Maint., 811 F.2d at
IHS’s arguments based on the supporting financial schedules are more substantial but still
fail to demonstrate that TCC’s administrative notice was fatally deficient. On those schedules,
TCC references the Title I Contract, and, apparently, also references the corresponding contract
number. Dkt. 1-4 at 5–6. The Court agrees with IHS that a reasonable contracting officer could
have concluded that those analyses—standing alone—supported a claim for relief under both the
Title V Compact and the Title I Contract. But when viewed in the context of TCC’s entire
submission, those references to the Title I Contract are best viewed as an oversight in the
supporting materials, and not as a separate request for damages under a contract that TCC never
mentioned in its claim letter. When considered together with the letter’s caption and text, it
cannot be said that these column labels stood as a barrier to IHS receiving reasonable notice of
the “basis and amount” of TCC’s claim. Cont. Cleaning Maint., 811 F.2d at 592. The amount
TCC sought was clear: $12,153,793. Dkt. 1-4 at 1. Whether that amount represented a correct
calculation of what IHS owed TCC under the Title V Compact, was slightly inflated because
TCC mistakenly included a small amount that TCC could have sought, but did not seek, under
the Title I Contract, or instead was incorrect for any other reason is a merits question and not a
Nor could the mistaken inclusion of expenses from the Title I Contract have had a
significant impact on the total amount at issue, thereby preventing IHS from forming a
reasonable estimate of the funds it might have to pay. The “Cumulative Funding Report” for the
Title V Compact, which IHS proffers in an exhibit to its motion to dismiss, “shows [a] total FY
2013 funding of $52,617,909,” including “$1,871,568 in direct Contract Support Costs . . . and
$6,999,836 in indirect Contract Support Costs.” Dkt. 15-1 at 22–23 n.8. In contrast, under the
Title I Contract for FY 2013, TCC “received $704,771, including $283 in direct Contract
Support Costs and $126,873 in indirect Support Costs.” Id. at 23 n.8. Accordingly, accepting
IHS’s reported figures as at least in the ballpark, even if TCC mistakenly included a number
approximating the full value of what was paid for contract support costs under the Title I
Contract, that would have amounted to only about 1% of the $12,153,793 that TCC sought in its
September 30, 2019 claim.
Moreover, to the extent TCC mistakenly included items related to the Title I Contract in
its claim, IHS has proven itself up to the task of parsing the details and developing an informed
position, demonstrating that the information TCC provided was sufficient to allow IHS
“meaningfully [to] review the claim.” CPS Mech. Contractors, 59 Fed. Cl. at 763. IHS’s brief
argues that the figures on which TCC based its calculations correspond exactly to certain items
from the Title V Compact added together with corresponding items from the Title I Contract.
Dkt. 15-1 at 22–23. The Court, of course, takes no position at this time on whether IHS is
correct about that. But the fact that IHS was able to form a view on the issue with the materials
it had in hand confirms that it had ample information to form an opinion respecting TCC’s claim
and could easily have denied relief to the extent the schedules sought amounts in excess of the
amount due under the Title V Compact and the agreements affiliated with the Compact, which is
all that the claim letter sought. Courts have repeatedly held that if the amount of damages arising
from a claim can be determined with “simple arithmetic,” the claim has been adequately
presented. See, e.g., Tunica-Biloxi Tribe of La., 577 F. Supp. 2d at 410; Metric Constr. Co., 1
Cl. Ct. at 392; CPS Mech. Contractors, 59 Fed. Cl. at 764. Here, no arithmetic was necessary to
ascertain the amount that TCC was seeking—that is, $12,153,793—and IHS had no apparent
difficulty assessing the merits of that claim.
None of the authorities IHS invokes in support of its more demanding view of the notice
requirement can bear the weight IHS places on them. The first is the interpretive principle that
waivers of sovereign immunity are to be strictly construed in favor of the sovereign. Dkt. 15-1 at
17; see also Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (“[L]imitations and conditions upon
which the Government consents to be sued must be strictly observed and exceptions thereto are
not to be implied.”).2 The second is the IHS regulation that defines a “claim” as “a written
demand . . . asking for . . . payment of a specific sum of money under the contract.” 25 C.F.R.
§ 900.218(a)(1). As the Court understands IHS’s argument, these authorities work in tandem:
the regulation uses the definite article “the” and refers to a singular “contract,” and this language
must be strictly construed to exclude any submission that refers to more than one contract.
But even accepting that contestable interpretation of the regulation,3 TCC submitted a
“claim.” It asked in writing for $12,153,793—a specific sum of money—“due and owing to
TCC argues that it has a countervailing (and codified) canon: 25 C.F.R. § 900.3(b)(11), which
states that “The Secretary’s commitment to Indian self-determination requires that these
regulations be liberally construed for the benefit of Indian tribes and tribal organizations to
effectuate the strong Federal policy of self-determination and, further, that any ambiguities
herein be construed in favor of the Indian tribe or tribal organization so as to facilitate and enable
the transfer of services, programs, functions, and activities, or portions thereof, authorized by the
Act.” Because IHS’s motion fails even without resort to this regulation, the Court need not
decide whether it applies to the waiver of sovereign immunity at issue in this case.
Among other things, that reading of the definition of “claim” proves too much, since here—as,
presumably, in many or most cases—the government’s obligation is premised on several related
agreements, including the overarching compact or agreement, the funding agreement, and
TCC under the provisions of the above-referenced Compact and associated funding agreements,
as amended, in effect between the parties for fiscal year 2013.” Dkt. 1-4 at 1. The “abovereferenced Compact” is TCC’s “Indian Self-Determination Act Compact”—i.e., the Title V
Compact. Id. A request for a dollar figure under a particular contract satisfies § 900.218(a)(1)
even by IHS’s own strict-construction lights. As explained, the specific sum of money TCC
requested may or may not constitute an accurate assessment of what it was due under the Title V
Compact (because that figure may include a small amount related to the Title I Contract, or it
may be incorrect for any number of other reasons). But asking for an incorrect specific sum
under a contract is not the same thing as asking for an unspecific sum under an unspecified
contract or contracts. This case might involve the former situation, but it does not present the
Notably, IHS fails to point to any case in which a court has deployed the sovereign
immunity canon to render a claim like TCC’s inadequate. To the contrary, courts no doubt
aware of that maxim have time and again recognized that CDA presentment is a notice
requirement, not something more demanding. See, e.g., CPS Mech. Contractors, 59 Fed. Cl. at
763–64 (recognizing that presentment is jurisdictional but also that it requires only “a clear and
unequivocal statement that gives the CO adequate notice of the basis for the claim” and that
allows “the amount in dispute” to be “easily determined”); Cont. Cleaning Maint., 811 F.2d at
591–93 (same); Tunica-Biloxi Tribe of La., 577 F. Supp. 2d at 407–11 (same). Although IHS
repeatedly cites to M. Maropakis, that case is consistent with this understanding. There, the
Federal Circuit cited to the strict requirements of sovereign immunity to reject the notion that a
whatever modifications the parties may have adopted. That is the way government contracting
claimant could “ignore the jurisdictional requirements of the CDA” by failing to provide
“adequate notice” of the actual value of its claim, “state a sum certain,” and “request a final
decision.” M. Maropakis, 609 F.3d at 1329. TCC, by contrast, did not ignore these requirements
and, in fact, requested a specific sum from IHS. Dkt. 1-4 at 1. Even if not crystal clear, TCC’s
claim letter put IHS on notice, which is all it had to do.
Whether TCC Presses a Different Claim Than It Did Before IHS
Shifting its emphasis, IHS argues that TCC now seeks to correct the defects with its
presentment by bringing a different claim before this Court than it did before IHS, effectively
circumventing presentment. Dkt. 15-1 at 14–15. In its complaint and briefing, TCC has
steadfastly maintained that it seeks relief under only the Title V Compact. Dkt. 1 at 13 (Compl.
¶ 43); Dkt. 17 at 7. This TCC may not do, says IHS, when its initial claim letter sought relief
under both the Compact and the Title I Contract, or alternatively, was so vague that it was
impossible to determine which contract or contracts were at issue. Dkt. 15-1 at 21. IHS suggests
that the numbers tell the story, pointing out that although the figures TCC provided with its claim
letter cannot be reconciled with the funding TCC received and expenses it incurred under the
Title V Compact, they do match up with the equivalent values for the Title V Compact and Title
I Contract added together. Dkt. 15-1 at 22–23. For instance, according to IHS, what TCC’s
second schedule labels “Total Funding Awarded” corresponds not to the total funding IHS
awarded TCC under the Title V Compact, but rather the combined value of the funding for the
Title V Compact and Title I Contract. Id. IHS insists that this and similar examples it offers
show that TCC asserted claims under two contracts at the administrative level and that it is not
playing it straight with the Court now. Id.
There are several problems with this reasoning. Most notably, it fails to accept the
possibility that TCC’s claim letter was premised, as the letter says it was, on an alleged breach of
the “Compact and associated Fund Agreements,” Dkt. 1-4 at 1, and that the inclusion of a small
amount from the Title I Contract in the attached schedules was simply an oversight, which IHS
or TCC could easily have corrected. Or, framed more generally, IHS’s alternative argument
adds little, if anything, to its motion. If IHS were correct that TCC’s presentment was defective,
that alone would deprive the Court of jurisdiction. But if not, then the premise of this alternative
argument—that TCC presented an overly vague claim stemming from two contracts—is faulty.
Because the Court holds that TCC adequately presented its claim to IHS, it necessarily rejects the
notion that this claim was a two-contract jumble irreconcilable with the demands TCC more
clearly makes in its complaint.
Putting this difficulty aside, even on its own terms IHS’s different-claim argument is
unpersuasive. IHS is correct that a court action under the CDA “must be ‘based on the same
claim previously presented to and denied by the contracting officer.’” Scott Timber Co. v.
United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) (quoting Cerberonics, Inc. v. United States,
13 Cl. Ct. 415, 417 (1987)). This rule follows from 41 U.S.C. § 7103(a)’s requirement that
before a court can exercise jurisdiction over a claim under the CDA, “the contractor must have
received the contracting officer’s final decision on that claim.” M. Maropakis, 609 F.3d at 1328.
To determine whether a plaintiff has satisfied this condition, courts assess whether the complaint
“is based on the same set of operative facts underlying the claim presented to the contracting
officer.” Cerberonics, 13 Cl. Ct. at 417. Under the “operative facts” inquiry, “[i]f the court will
have to review the same or related evidence to make its decision” as did the contracting officer,
“then only one claim exists.” Placeway Const., 920 F.2d at 907. If, “[o]n the other hand,” “the
claims as presented to the [contracting officer] will necessitate a focus on a different or unrelated
set of operative facts as to each claim, then separate claims exist.” Id. This analysis focuses on
the core factual basis for the claim, not every last detail. For example, a plaintiff can request
greater damages than it did before the contracting officer, Santa Fe Eng’r’s, Inc. v. United States,
818 F.2d 856, 858 (Fed. Cir. 1987), and even “assert differing legal theories,” so long as it
ultimately “claim[s] essentially the same relief,” Scott Timber, 333 F.3d at 1365. Because the
operative facts test exists to vindicate the statutory requirement of presentment, courts must also
evaluate “whether the scheme of adjudication prescribed by the CDA is undermined . . . by
circumventing the statutory role of the contracting officer to receive and pass judgment on the
contractor’s entire claim.” Affiliated Constr. Grp., Inc. v. United States, 115 Fed. Cl. 607, 612
(2014) (quoting Cerberonics, 13 Cl. Ct. at 418). “In other words, the claim before the court
cannot be said to arise from the same operative facts unless it is clear that the claim presented to
the contracting officer was specific enough to give the officer notice of the basis of the claim and
allow him to make an informed judgment about it.” Id.
TCC’s claims before this Court are based on the same “operative facts” that were
presented to IHS. The relief sought in the complaint is identical to that which TCC sought
before the contracting officer, except that TCC has opted not to seek one category of relief that it
sought there. Dkt. 1 at 21 n.4; compare Dkt. 1 at 21 (Compl. ¶ 78), with Dkt. 1-4 at 1. As a
result, every dollar of damages TCC seeks here it sought from IHS in the first instance. Dkt. 1 at
21 n.4. This is, by any standard, “essentially the same relief,” Scott Timber, 333 F.3d at 1365,
and, for that reason, TCC’s lawsuit does not raise any prospect of circumvention. TCC is not
asking this Court to decide a new question or to consider a claim that IHS was denied the
opportunity to consider. To the contrary, TCC is asking the Court to decide a subset of the
questions it presented in the administrative process. The sort of shift that raises the specter of
circumvention is a request for new or greater relief. TCC complaint narrows the scope of its
claim and thus does just opposite.
IHS closes with a warning: “Under Tanana Chiefs Conference’s theory of the case, a
contractor could submit claims tied to several contracts and so long as some sum was demanded,
the onus would be on the relevant agency to sort out the source of its obligation to pay that
alleged sum. There would be no requirement for the claimant to specify the source of the sum
demanded, including by identifying the contract giving rise to any obligation to pay.” Dkt. 19 at
12. The Court fails to see how that is so. TCC did specify the source of the sum demanded, just
as it identified the contract giving rise to IHS’s alleged obligation to pay. For all its hand
wringing about TCC’s letter, IHS cannot point to a single sentence in the claim letter itself in
which TCC requested payment under any contract other than the Title V Compact. Indeed, if
anything, it is IHS’s position that raises the specter of confusion, since it invites contracting
officers to ignore the text of the claim letter and, instead, to consider whether any supporting
materials provided along with the claim include an element of damages attributable to a different
contract and, if so, to decline to consider the claim—thereby precluding judicial review—based
on his or her belief that the supporting documentation shows that the claim is actually for
amounts attributable to a different contract. IHS’s concern about whether the claim that TCC
presented in the administrative process and that it seeks to pursue before this Court erroneously
includes amounts related to a different contract is fair game. But that is a question for another
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss. Dkt. 15.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 15, 2022
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