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17 IHS Motion to Dismiss Case 5:19-cv-05045-JLV Document 17 Filed 10/04/19 Page 1 of 29 PageID #: 162 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION DONNA M. GILBERT, JULIE MOHNEY, 5:19-CV-05045-JLV CHARMAINE WHITE FACE, and others similarly situated, DEFENDANTS’ MEMORANDUM Plaintiffs, BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS v. RADM MICHAEL D. WEAHKEE, Principal Deputy Director Indian Health Service (IHS), JAMES DRIVING HAWK, Great Plains IHS Area Director, WILLIAM BARR, United States Attorney General, Defendants. COME NOW Defendants RADM Michael D. Weahkee, Principal Deputy Director of the United States Indian Health Service (“IHS”), an agency of the United States of America, James Driving Hawk, Area Director for the Great Plains Area of the IHS, and William Barr, United States Attorney General, by and through their counsel of record, United States Attorney Ronald A. Parsons, Jr., and Assistant United States Attorney SaraBeth Donovan, and file this memorandum brief in support of their motion to dismiss Plaintiffs’ claims with prejudice. The Amended Complaint must be dismissed on several grounds. First, this Court lacks jurisdiction because Plaintiffs have failed to identify an Case 5:19-cv-05045-JLV Document 17 Filed 10/04/19 Page 2 of 29 PageID #: 163 applicable waiver of the United States’ sovereign immunity from suit and because Plaintiffs lack standing under Article III. Second, Plaintiffs have failed to state a claim upon which the requested relief can be granted. Third, Plaintiffs have failed to join indispensable parties. Additionally, even if Plaintiffs’ claims are not barred as set forth above, and despite their attempts at a class action, Plaintiffs cannot meet the standard required for the imposition of a permanent injunction. Therefore, for all of those reasons, this case should be dismissed with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). STATEMENT OF FACTS In the Spring of 2018, the Great Plains Tribal Chairmen’s Health Board (“GPTCHB”) and the Cheyenne River Sioux Tribe (“CRST”), Oglala Sioux Tribe (“OST”), and Rosebud Sioux Tribe (“RST”) took separate actions, through individual resolutions, towards a self-determination proposal for the assumption of the operations of and funding for the programs, functions, services, and activities (“PFSAs”) of the IHS Service Unit in Rapid City, South Dakota (“RCSU”), to include the Sioux San Hospital and related facilities, by the GPTCHB. On September 27, 2018, the GPTCHB submitted a proposal to the IHS for the assumption of the PFSAs of the RCSU. The 90-day statutory period for the IHS to award or decline the proposal was to end on December 26, 2018. On December 4, 2018, Charmaine White Face (“White Face”), filed a Complaint and motion for a temporary restraining order against Jerilyn Church 2 Case 5:19-cv-05045-JLV Document 17 Filed 10/04/19 Page 3 of 29 PageID #: 164 (“Church”), Chief Executive Officer (“CEO”) of the GPTCHB, and IHS Area Director Driving Hawk. See White Face v. Church, et al., 5:18-cv-05087-JLV (“White Face (2018)”), Docs. 1, 8. In her 2018 Complaint, White Face alleged the same violations of federal law -- the Fort Laramie Treaty of 1868, the United States Constitution, and the Indian Self-Determination and Education Assistance Act (“ISDEAA”) – and basically the same allegations of fact, as she alleges in the instant case: that the assumption of the RCSU by the GPTCHB violated her treaty and civil rights, and those of the Rapid City community and federal IHS employees, because they were not consulted and could not vote in tribal elections, and because the IHS has the ongoing treaty responsibility to provide health care to tribal members not the GPTCHB. Doc. 1 ¶¶ I, IV (1-3). White Face requested the court to immediately enjoin the IHS and GPTCHB from contracting for the provision of services at the RCSU, to declare all Intergovernmental Personnel Act (“IPA”) employment contracts1 null and void, to allow all RCSU employees to resume their federal employment, and to award monetary damages. Doc. 1 at ¶¶ V, VI. Following a hearing on December 13, 2018, the Court dismissed White Face’s Complaint without prejudice because subject matter jurisdiction was lacking. White Face (2018), Doc. 31. 1 IPA contracts provide for the detail of a federal employee to a tribal organization, wherein the employees retain their federal salary and benefits. 5 U.S.C. §§ 3371- 3375 and 5 C.F.R Chapter 34. 3 Case 5:19-cv-05045-JLV Document 17 Filed 10/04/19 Page 4 of 29 PageID #: 165 On December 18, 2018, the RST Tribal Council rescinded its two earlier resolutions which had provided for the assumption of health care at the RCSU by the GPTCHB from the IHS. See Donovan Declaration filed herewith (“Donovan Decl.”), and Exhibit 1, attached thereto. On December 20, 2018, IHS informed the GPTCHB that it was cancelling negotiations. See Donovan Decl., Exhibit 2. On December 21, 2018, IHS informed the GPTCHB that it was officially declining in full their September 27, 2018 proposal to assume the PFSAs of the RCSU on behalf of the three tribes. See Donovan Decl., Exhibit 3. On February 14, 2019, the GPTCHB made a new proposal to the IHS for the assumption of the PFSAs at the RCSU on behalf of the CRST and the OST, the two tribes still interested in the assumption. See Donovan Decl., Exhibit 4. Included in that proposal were the resolutions of the OST, CRST, and the GPTCHB, dated January 2, 2019, January 9, 2019, and January 18, 2019, respectively, which authorized the GPTCHB to assume the operation of and funding for the PFSAs of the RCSU from the IHS on behalf of the two tribes. See Donovan Decl., Exhibits 5-7. Since the receipt of the proposal, good faith negotiations occurred between the IHS and the GPTCHB, numerous consultations were held with all three tribes in the service area, including the RST, and meetings were held with all IHS employees working at the RCSU. See Donovan Decl., Exhibit 8, Declaration of Daniel Davis (“Davis Decl.”) at ¶ 5. Discussions were also held between IHS personnel and Plaintiffs Gilbert and White Face. Id. 4 Case 5:19-cv-05045-JLV Document 17 Filed 10/04/19 Page 5 of 29 PageID #: 166 The assumption was partially awarded with the signing of the final contract on May 31 and June 1, 2019, and the signing of the Annual Funding Agreement on May 31 and June 3, 2019, which attached the final Scope of Work. See Donovan Decl., Exhibit 9. The assumption proposal was partially declined on June 1, 2019. See Donovan Decl., Exhibit 10. Those provisions declined focused primarily on costs and reimbursements proposed by the GPTCHB and the provision of services in specialty areas such as oncology and some alternative medicine. See Id.; Exhibit 8, Davis Decl. at ¶ 6. To date, the GPTCHB has not appealed the declination. Id. On July 21, 2019, the partial assumption became effective and services have continued to be provided at the RCSU since that date by the GPTCHB and the IHS. See Donovan Decl., Exhibit 9, at page 2; Exhibit 8, Davis Decl. at ¶ 7. In order to implement the partial assumption of the PFSAs by the GPTCHB at the RCSU, since September 30, 2019, ninety (90) federal employees have signed IPA contracts with the GPTCHB, and nine (9) United States Public Health Service Commission Corps Officers have signed Memoranda of Agreement (“MOA”s) with the GPTCHB. See Exhibit 8, Davis Decl. at ¶ 8. There remain forty-one (41) federal employees employed at the RCSU. Id. The RCSU user population is approximately 15,000, with beneficiaries primarily from the CRST, OST, and RST. Donovan Decl., Exhibit 4 at 4, 7. The RCSU is currently operational with the GPTCHB providing the PFSAs for primarily those beneficiaries from the CRST and the OST, and the IHS providing the PFSAs for primarily those beneficiaries from the RST. Exhibit 8, 5 Case 5:19-cv-05045-JLV Document 17 Filed 10/04/19 Page 6 of 29 PageID #: 167 Davis Decl. at ¶ 7. Both the GPTCHB and the IHS provide the PFSAs for those beneficiaries who are unaffiliated. Id. The IHS has an “open door” policy and provides PFSAs for any beneficiary who requests service, regardless of tribal affiliation. Id. The GPTCHB has represented to the IHS that they also have an “open door” policy. Id. STATEMENT OF THE CASE On June 28, 2019, Plaintiff Gilbert filed her Complaint in the instant case against Defendant IHS RADM Weahkee. Doc. 1. On July 16, 2019, an Amended Complaint was filed which added two additional Plaintiffs, Mohney and White Face, and added two additional Defendants, IHS Area Director Driving Hawk and U.S. Attorney General Barr. Doc. 5. Neither the GPTCHB, nor any Tribe were named as defendants. As of both filing dates, the partial assumption contract had been awarded (June 1, 2019), but it had not yet become effective (July 21, 2019). See Exhibits 9, 10. On July 29, 2019, Plaintiffs filed a Motion to Certify a Class Action Lawsuit, along with an attachment listing 123 potential class members. Docs. 12, 12-1. The legal and factual allegations in the Amended Complaint in the instant case are nearly identical, substantively, to those alleged in White Face’s 2018 Complaint and argued in the hearing on December 13, 2018. See White Face 2018, Docs. 1, 31. The named Plaintiffs in this case, including White Face, are allegedly individual tribal members who live in Rapid City and claim to be employees or patients of the RCSU, and members of the Great Sioux Nation.
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