Rosebud Sioux Tribe v. United States

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         The Rosebud Sioux Tribe (the Tribe) filed a Complaint against the United States of America, the Department of Health and Human Services (HHS) and its Secretary, the Indian Health Service (IHS) and its Acting Director, and the Acting Director of the Great Plains Area of IHS (collectively the Government), seeking declaratory and injunctive relief due to the allegedly inadequate health care provided by IHS to tribal members. Doc. 1. The Government filed motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Doc. 17. The Tribe opposed the motion to dismiss. Doc. 24. The case thereafter was transferred to the undersigned judge. Doc. 33. For the reasons stated below, the Government's motion to dismiss is granted as to Counts I, II, and IV, and denied as to Count III of the Complaint.

         I. Background

         The Government seeks to provide, administer, and oversee health services to members of federally recognized tribes through IHS, which is an agency within HHS. Doc. 1 at ¶ 6. The Rosebud Sioux Tribe is a federally recognized tribe whose members are eligible to receive health care from federally funded IHS facilities. Doc. 1 at ¶¶ 2, 6, 31. The Rosebud IHS Hospital^[2] is located in Rosebud, South Dakota, and serves as the primary source of health care for the Tribe's members. Doc. 1 at ¶ 31. Congress makes annual appropriations for all IHS programs, which HHS then distributes among 170 service units, within 12 regional IHS areas. Doc. 18 at 2-3; IHS 2016 Profile. U.S. Dep't of Health and Human Servs. (Sept. 2016), https://www.ihs.gov/newsroom/factsheets/ihsprofile/. Expenses for the treatment of tribal members are reimbursed by Medicare and Medicaid, so long as IHS hospitals comply with the conditions of participation at 42 U.S.C. §§ 1395qq, 1396j.

         After federal surveyors inspected and reviewed the Rosebud IHS Hospital in mid-November of 2015, the Centers for Medicare and Medicaid Services (CMS) sent the Rosebud IHS Hospital a "Notice of Intent to Terminate Medicare Provider Agreement" concerning its emergency department. Doc. 1 at ¶¶ 35-36. The CMS stated that the deficiencies discovered during the review process were an "immediate and serious threat to the health and safety [of] any individual who comes to [the Rosebud IHS Hospital] to receive emergency services." Doc. 1 at ¶ 36. To avoid closure of the emergency department, the Rosebud IHS Hospital needed to correct its violations of the Medicare Conditions of Participation for Hospitals by December 12, 2015. Doc. 1 at ¶ 36. On December 5, 2015, IHS announced that the Rosebud IHS Hospital was on "divert status, " due to staffing and resource issues, and that individuals seeking emergency services at the Rosebud IHS Hospital would be directed to the emergency rooms in Winner, South Dakota, or Valentine, Nebraska, which are approximately 55 and 44 miles away, respectively. See Doc. 1 at ¶ 37. On January 5, 2016, the Rosebud IHS Hospital was again sent a "Notice of Intent to Terminate Medicare Participation" because of failure to comply with federal requirements. Doc. 1 at ¶ 39. Federal surveyors visited the Rosebud IHS Hospital again in February 2016, and found ongoing noncompliance with Medicare Conditions of Participation. Doc. 1 at ¶ 42. On March 1, 2016, CMS again sent Rosebud IHS Hospital a termination notice, stating that its Medicare Provider Agreement would be terminated March 16, 2016. Doc. 1 at ¶¶ 42-43.

         On April 28, 2016, the Tribe filed this suit, an action for declaratory and injunctive relief, with four counts. Doc. 1. Counts I and II of the Tribe's Complaint are based on a provision of the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. § 1631(b)(1), which requires a one-year notice to Congress before any IHS hospital, facility, or portion of such can be closed, in order to evaluate the impact of the closure. Count I alleges a violation of the IHCIA directly, while Count II seeks judicial relief under the Administrative Procedures Act, 5 U.S.C. § 702 (APA), for the alleged violation of the IHCIA. Doc. 1 at ¶¶ 45-59. Count III alleges violation of treaty rights, other statutory obligations, and the trust responsibility obliging the Government to provide health care services to the Tribe's members. Doc. 1 at ¶¶ 60-66. Count IV alleges violations of equal protection and due process under the Fifth Amendment of the United States Constitution stemming from the Rosebud IHS Hospital's emergency department closure. Doc. 1 at ¶¶ 67-77. The Complaint seeks various declaratory and injunctive relief, as well as costs, fees, and other relief deemed proper. Doc. 1 at 21-23.

         With its motion to dismiss, the Government filed a Declaration of the Acting Chief Executive Officer at the Rosebud IHS Hospital, and attached various documents to provide information about events that have occurred at the Rosebud IHS Hospital after the suit was filed. Doc. 19. On April 30, 2016, the CMS and IHS entered into a Systems Improvement Agreement to promote future compliance with the Medicare conditions of participation. Doc. 19 at ¶ 13. IHS awarded a contract to AB Staffing Solutions, LLC (ABSS) on May 17, 2016, to provide staffing and management services to the Rosebud IHS Hospital emergency department. Doc. 19 at ¶ 14. The emergency department at the Rosebud IHS Hospital reopened and resumed providing 24-hour emergency care on July 15, 2016. Doc. 19 at ¶ 16. The Government filed its motion to dismiss following these developments. Doc. 17.

         The Tribe's response to the motion to dismiss recognizes that the Rosebud IHS Hospital emergency department reopened under ABSS management on July 15, 2016, but raises concerns about ABSS and about ongoing staffing and care issues, submits information about five deaths and delivery of two babies mat occurred during transport to off-reservation emergency departments, focuses on its non-fflCIA claims in Counts III and IV, and requests an opportunity for discovery on its IHCIA claims in Counts I and II. Docs. 24, 25, 26, 27, 28. The Tribe likewise filed declarations and additional documents. Docs. 25, 26, 27, 28. The Tribe argues that discovery is required to evaluate the standard of care provided by ABSS, to determine whether the Great Plains Area IHS had discretion with its spending appropriations to specific hospitals, and to test whether the Rosebud IHS Hospital emergency department's divert status truly was temporary. Doc. 24 at 14-16. The Tribe also argues that if this Court relies upon materials outside the pleadings in ruling upon the Government's motion, it must convert this into a motion for summary judgment, upon which "[a] 11 parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Doc. 24 at 14 (alteration in original) (quoting Fed.R.Civ.P. 12(d)).

         II. Legal Standards

         A. Rule 12(b)(1) and Rule 12(b)(6)

         The Government has filed its motion to dismiss under both Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Doc. 17. To challenge subject matter jurisdiction under Rule 12(b)(1), the Government must either attack the facial or factual basis for jurisdiction. Osborn v. United States. 918 F.2d 724, 729 n.6 (8th Cir. 1990). Regardless of whether the jurisdictional attack is facial or factual, the plaintiff has the burden of proving subject matter jurisdiction. VS Ltd. P'ship v. Dep't of Hous. & Urban Dev.. 235 F.3d 1109, 1112 (8th Cir. 2000). Under a facial attack, the "court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Jones v. United States. 727 F.3d 844, 846 (8th Cir. 2013) (quoting Osborn, 918 F.2d at 729 n.6). However, under a factual attack of the court's jurisdiction, no presumptive truthfulness attaches to the plaintiffs pleadings as under Rule 12(b)(6), because at issue is the court's very power to hear the case. See Osborn, 918 F.2d at 729-30. Under a factual attack to its jurisdiction, the court is free to consider matters outside the pleadings, without invoking Rule 56 and converting the motion to dismiss into a motion for summary judgment, because "[jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide." Id. at 729 (citing Williamson v. Tucker. 645 F.2d 404, 413 (5th Cir. 1981)). The Government raises a factual attack to this court's jurisdiction, and this Court can thus consider matters outside the pleadings without converting this motion into one for summary judgment when ruling under Rule 12(b)(1). Doc. 18 at 6 (citing Titus v. Sullivan. 4 F.3d 590, 593 (8th Cir. 1993)); Doc. 35 at 2.

         The Government also invoked Rule 12(b)(6) in its motion to dismiss. When considering a motion to dismiss under Rule 12(b)(6), a court must draw all reasonable factual inferences in favor of the non-moving party, but need not accept the nonmoving party's legal conclusions. Freitas v. Wells Fargo Home Mortg.. Inc.. 703 F.3d 436, 438 (8th Cir. 2013); Retro Television Network. Inc. v. Luken Commc'ns. LLC. 696 F.3d 766, 768-69 (8th Cir. 2012). The court "generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, ... as well as materials that are necessarily embraced by the pleadings." Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (internal quotation marks and citations removed). A complaint does not need to contain detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, only "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 570 (2007). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " Ascroft v. Iqbal. 556 U.S. 662, 678 (2009), "even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely, '" Twombly. 550 U.S. at 556 (quoting Scheuer v. Rhodes. 416 U.S. 232, 236 (1974)). Unlike in a Rule 12(b)(1) motion to dismiss, under Rule 12(b)(6), the moving party has the burden of proving there is no claim for relief available. See 5B Charles Alan Wright et al., Federal Practice & Procedure § 1357 (3d ed. 2004); 2-12 James Wm. Moore et al, Moore's Federal Practice § 12.34(1) (3d ed. 2016).

         B. Sovereign Immunity and Standing

         The Government raises two general challenges to this Court's jurisdiction-sovereign immunity and lack of standing. Both of these arguments are Rule 12(b)(1) challenges asserting lack of subject matter jurisdiction. See Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000).

         The Government argues that this Court lacks jurisdiction because the Government has not waived its sovereign immunity and the Tribe has not established any independent basis for waiver of sovereign immunity. Doc. 18 at 7. The Tribe alleges that this Court has jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1362, and 28 U.S.C. § 1346. Doc. 1 at ¶ 9. The Tribe seeks declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, and alleges that the Government has waived its immunity from suit under the APA, 5 U.S.C. § 702. Doc. 1 at ¶¶ 1, 10. Although the Declaratory Judgment Act does not provide an independent basis for federal jurisdiction or waiver of sovereign immunity, Zutz v. Nelson. 601 F.3d 842, 850 (8th Cir. 2010), "[t]he APA's waiver of sovereign immunity applies to any suit whether under the APA or not, " Chamber of Commerce of U.S. v. Reich. 74 F.3d 1322, 1328 (D.C. Cir. 1996). See Red Lake Band of Chippewa Indians v. Barlow. 846 F.2d 474, 476 (8th Cir. 1988) ("[T]he waiver of sovereign immunity contained in section 702 is not dependent on application of the procedures and review standards of the APA. It is dependent on the suit against the government being one for non-monetary relief."); Raz v. Lee. 343 F.3d 936, 938 (8th Cir. 2003) (per curiam) ("[S]ection 702 of the [APA] expressly waives sovereign immunity as to any action for non- monetary relief brought against the United States."); Winnebago Tribe of Neb, v. Babbitt. 915 F.Supp. 157, 165 (D.S.D. 1996) ("The waiver of sovereign immunity in § 702 is not limited to suits brought under the APA . . . Waiver is dependent on the suit against the government being one for non-monetary relief." (internal citations and quotation marks removed)). The Tribe is seeking non-monetary relief, challenging the actions and inactions of a United States agency. Doc. 1 at 21-23. Thus, sovereign immunity does not appear to bar the Tribe's claims.

         The Government argues that the Tribe lacks standing to bring this suit. Doc. 18 at 24. Article III of the United States Constitution limits federal court jurisdiction to "cases" and "controversies." U.S. Const, art. Ill. § 2, cl. 1. Standing is one of the essential prerequisites to jurisdiction under Article III. Luian v. Defenders of Wildlife. 504 U.S. 555, 560 (1992). Standing requires a plaintiff to satisfy three elements: "injury in fact, causation, and redressability." Campbell v. Minneapolis Pub. Hous. Auth., 168 F.3d 1069, 1073 (8th Cir. 1999) (citing Steel Co. v. Citizens for a Better Env't. 523 U.S. 83, 101-04 (1998)). The "injury in fact" must be both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Luian, 504 U.S. at 560-61 (internal quotations and citations removed). "[T]here must be a causal connection between the injury and the conduct complained of, " and "it must be likely . . . that the injury will be redressed by a favorable decision." Id. (internal quotations and citations removed). On a motion to dismiss, "general factual allegations of injury resulting from the defendant's conduct may suffice" as proof of the establishment of the elements of standing. Id. at 561. Standing must be present on each claim brought by the plaintiffs, Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009), and must exist throughout the duration of the lawsuit, Missourians for Fiscal Accountability v. Klahr. 830 F.3d 789, 793-94 (8th Cir. 2016) (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). See Steffel v. Thompson. 415 U.S. 452, 459 n.10 (1974) ("The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.").

         The Government argues that the Tribe lacks standing because it cannot establish "a sufficiently concrete injury traceable to anything the IHS has done." Doc. 18 at 25. The Government further argues that it is not possible for the Tribe to meet the redressability prong of standing because "[m]uch of the relief that Plaintiff seeks, for example, to take sufficient measures, or allocate sufficient funds, to ensure health services to members of the Tribe are raised to the highest possible level ... is not within the Court's power to grant." Doc. 18 at 26. The Tribe responds by invoking with the doctrine of parens patriae^[3] which is specifically pleaded in the Complaint. Doc. 1 at ¶ 68; Doc. 24 at 16. The Tribe, based on a Declaration it filed, contends that five tribal members died in ambulances en route from Rosebud to the nearest emergency department hospital in Valentine, Nebraska, while the Rosebud IHS Hospital emergency department was on its diversion status, and that two female tribal members delivered their babies in ambulances during that same time period. Doc. 1 at ¶ 38; Doc. 24 at 17; Doc. 25 at ¶¶3-4.

         The parens patriae doctrine developed in England, where the King retained the royal prerogative to act "as guardian of persons under legal disabilities to act for themselves." Hawaii v. Standard Oil Co. of Cal,405 U.S. 251, 257 (1972). In the United States, the doctrine expanded to "establish the right of a State to sue as parens patriae to prevent or repair harm to its 'quasisovereign' interests, " Id. at 258, defining one such interest as "the health and well-being- both physical and economic-of its residents in general, " Alfred L. Snapp & Son. Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982). The Supreme Court has required for parens patriae standing that the alleged injury must affect "a sufficiently substantial segment of its population, " and that the injury generally be one a state "would likely attempt to address through its sovereign lawmaking powers." Alfred L. Snapo. 458 U.S. at 607. However, the Supreme Court has also cautioned that "[a] State does not have standing as parens patriae to bring an action against the Federal Government." Id. at 610 n. 16; Iowa ex rel. Miller v. Block. 771 F.2d 347, 354-55 (8th Cir. 1985). The Eighth Circuit has considered, but not yet recognized the doctrine of parens patriae in the context of tribes suing on behalf of tribal members. See United States v. Santee Sioux Tribe of Neb.,254 F.3d 728, 734 (8th Cir. 2001); Delorme v. United States, 354 F.3d 810, 816 (8th Cir. 2004). A reported decision within this district has recognized parens patriae status for a tribe suing on behalf of its members. See Oglala Sioux Tribe v. Van Hunnik, 993 ...