Thompson
Norton Sound Health Corp. v. Thompson
Opinion
Dissenting Opinion
Alarcón, J.
dissenting.
I respectfully dissent. The district court did not err in granting IHS’s motion for summary judgment because Congress did not appropriate any money to the ISD Fund in fiscal year 1999.
I
Norton Sound first contends that its right to receive the settlement amount of $349,612 was not contingent on Congress’s appropriation of funds to the ISD Fund. The plain language of the 1999 AFA belies this argument. The 1999 AFA provides that:
Admin. R. at 436 (emphasis added). An appendix to the 1999 AFA reflects that the $349,612 was to come from the “no year” appropriations account and, more specifically, the “Indian Self Determ[ination]” line item. Id. at 461A. A footnote to this fine item states that payment of the $349,612 was “subject to ISD appropriations.” Id. Thus, the language of the 1999 AFA made payment of the $349,612 contingent on a specific earmarked congressional appropriation to the ISD Fund.
The history of the appropriations relating to contract support costs also demonstrates that Norton Sound’s right to receive the $349,612 was conditioned on Congress’s appropriation of sufficient funds to the ISD Fund. Congress established the ISD Fund in fiscal year 1988…
Lead Opinion
MEMORANDUM *
Norton Sound Health Corporation (“Norton Sound”), a consortium of 20 Alas *836 ka Native Villages in the Bering Strait region, appeals from the district court’s grant of summary judgment in favor of the Secretary of Health and Human Services and the Director of the Indian Health Service (collectively the “IHS”). Because we find that there are genuine issues of material fact in dispute, we reverse.
I.
Because the parties are familiar with the facts of this case, we discuss them only as necessary to explain our decision. Congress sought to encourage Indian tribes to take over the provision of health care services for their people. See 25 U.S.C. §§ 450 , 450a; 25 C.F.R. § 900.3 . Congress also required the IHS to reimburse tribes and tribal organizations for the cost of administrative services associated with providing health care services. See 25 U.S.C. § 450f(a)(l). The IHS created and maintained three “pools” of funds to reimburse different contract support costs: One pool, called the Indian Self-Determination (“ISD”) fund, was for administrative costs associated with new and expanded health service contracts. See IHS Circular No. 96-04, at 9.