United States District Court, D. South Dakota, Central Division
ROSEBUD SIOUX TRIBE, a federally recognized Indian tribe, and its individual members, Plaintiff,
UNITED STATES OF AMERICA; DEPARTMENT OF HEALTH AND HUMAN SERVICES, an executive department of the United States; THOMAS E. PRICE, Secretary of Health and Human Services; INDIAN HEALTH SERVICE, an executive agency of the United States; CHRIS BUCHANAN, Acting Director of Indian Health Service; FRANCIS FRAZIER, Acting Director of the Great Plains Area Indian Health Service,  Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
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.
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 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),
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. §§
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
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.
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.
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)).
Rule 12(b)(1) and Rule 12(b)(6)
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.
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).
Sovereign Immunity and Standing
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
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.
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.").
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 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.
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 ...