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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Oglala Sioux Tribe

DATE: July 23, 2003
          
 


 

Docket No. A-03-81
IBIA No. 03-57-A
Decision No. 1891
DECISION
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FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE D
ECISION

The Oglala Sioux Tribe (Tribe) appealed the June 2, 2003 decision of Administrative Law Judge (ALJ) Marcel S. Greenia dismissing the Tribe's appeal of the declination by the Indian Health Service (IHS) of the Tribe's proposal to contract to provide certain training services under the Indian Self-Determination Act (ISDA). The ALJ determined that the Tribe's appeal of IHS's December 27, 2002 declination was not timely filed. The ALJ rejected the Tribe's contention that IHS supplemented its declination by letter dated January 24, 2003, thus re-commencing the 30-day period for filing an appeal. As explained in detail below, I conclude that the ALJ did not err in determining that the appeal was untimely and should be dismissed.

Statutory and Regulatory Background

The ISDA, 25 U.S.C. § 450f et seq., directs IHS to award "self-determination" contracts to Indian tribes to provide programs, functions, services, and activities for the benefit of Indians that had previously been provided by IHS. ISDA Section 102(a)(1). The Secretary has 90 days after receipt of a proposal to review and approve the proposal and award the contract or decline the proposal. ISDA Section 102(a)(2).

An Indian tribe or tribal organization (tribe) whose contract proposal has been declined on certain grounds is entitled to a hearing on the record. ISDA Section 102(b)(3). If it decides to appeal, the tribe-

shall file a notice of appeal with the IBIA [Interior Board of Indian Appeals] within 30 days of receiving either the initial decision or the recommended decision.

25 C.F.R. § 900.158(a). (1) Section 900.158(b) provides that the tribe-

may either hand-deliver the notice of appeal to the IBIA, or mail it by certified mail, return receipt requested. If the [tribe] mails the Notice of Appeal, it will be considered filed on the date the [tribe] mailed it by certified mail. . . . (2)

Section 900.159 provides that the tribe can request an extension of time to file its notice of appeal within 60 days of receiving the declination decision. The extension request must be in writing and "give a reason for not filing [the] notice of appeal within the 30-day time period."

Section 900.160(a) provides that "[w]ithin 5 days of receiving the [tribe's] notice of appeal," the IBIA will decide whether the appeal pertains to a declination that is appealable under 25 C.F.R. § 900.150. Section 900.160 continues: "If so, the [tribe] is entitled to a hearing."

Section 900.161(a) provides that-

If a hearing is to be held, the IBIA will refer the [tribe's] case to the Hearings Division of the Office of Hearings and Appeals of the U.S. Department of the Interior. The case will then be assigned to an Administrative Law Judge (ALJ), appointed under 5 U.S.C. 3105.

Section 900.161(b) provides that "[w]ithin 15 days of the date of the referral, the ALJ will hold a pre-hearing conference, by telephone or in person, to decide whether an evidentiary hearing is necessary, or whether it is possible to decide the appeal based on the written record." The ALJ must send all parties a recommended decision containing his findings of fact and conclusions of law within 30 days of the end of the formal hearing or any post-hearing briefing schedule established by the ALJ. 25 C.F.R. § 900.165(a).

Any party may appeal the ALJ's recommended decision with respect to a declination by IHS to the Secretary of Health and Human Services by filing written objections to the ALJ's recommended decision within 30 days after receiving it. 25 C.F.R. § 900.166. The recommended decision becomes final if no party files timely objections. 25 C.F.R. § 900.166. The Secretary has 20 days from the date of receipt of any timely objections to modify, adopt, or reverse the recommended decision. 25 C.F.R. § 900.167. On August 16, 1996, the Secretary delegated the authority to hear such appeals to the Appellate Division of the Departmental Appeals Board. I have been appointed by the Board Chair as the deciding official in this case. I must uphold the ALJ's recommended decision unless I determine that it was based on an error of fact or law.

Procedural History

By letter dated December 27, 2002, the Acting Area Director, Aberdeen Area Indian Health Service, notified the Tribe of IHS's "final decision" regarding the Tribe's proposal, received by IHS on October 7, 2002, to contract for "the Area training services." The Tribe received this decision on December 31, 2002. (3) In a letter to the IBIA dated January 31, 2003, the Tribe's President stated "Please accept this as notice of formal appeal regarding the efforts to contract Black Hills Training Center." AR Ex. 43. Enclosed with this letter was a letter of the same date signed by Pat Cromwell, Development Specialist for the Northern Plains Native American Chemical Dependency Association, the organization that the Tribe intended to carry out the training activities for which it proposed to contract. AR Ex. 42; Affidavit of Patricia Cromwell dated 7/22/03, at ¶ 6. The Cromwell letter in turn included an "Index of documents" and the 41 documents listed on the index (AR 1 - 41). The IBIA received both the President's letter and the Cromwell letter on February 13, 2003. (4)

On February 20, 2003, the IBIA's Chief Administrative Law Judge issued an order referring the Tribe's appeal to the hearings division for assignment to an ALJ. AR Ex. 44. The order states in pertinent part:

On February 13, 2003, the Board of Indian Appeals received a notice of appeal from the Oglala Sioux Tribe, through its President, John Yellow Bird Steele. Appellant seeks review of a decision issued by the Acting Area Director, Aberdeen Area, Indian Health Service on December 27, 2002, and supplemented on January 24, 2003.

The order further states that the IBIA "finds that the appeal falls under 25 C.F.R. § 900.150(a), that the Tribe is entitled to a hearing, and that the Tribe has not waived its right to a hearing."

By letters dated February 28, 2003, the ALJ notified the parties that a pre-hearing conference would be held by telephone on March 7, 2003 (later rescheduled). AR Ex. 46. On March 7, Julia Pierce entered her appearance as attorney of record for IHS. AR Ex. 50. (5) On March 13, Peter Capossela entered his appearance as counsel for the Tribe. AR Ex. 51. On March 13, IHS filed a Motion to Dismiss. AR Ex. 52. IHS requested dismissal on the grounds that the Tribe failed to file its appeal to the IBIA within 30 days as required by the applicable regulations and that no request for extension was filed. (6) On March 31, the Tribe filed a response to the motion to dismiss. AR Ex. 54. As relevant here, the Tribe argued that its January 31, 2003 notice of appeal was timely filed because IHS "supplemented" its December 27, 2002 declination letter with a letter dated January 24, 2003, which the Tribe received on February 2, 2003. According to the Tribe, "[t]he supplemental letter re-starts the 30-day time period for Notice of Appeal," making the due date March 4, 2003. Id. at 2. IHS replied on April 7. AR Ex. 55.

On April 18, 2003, the ALJ issued an order denying IHS's motion to dismiss. AR Ex. 56. The order identified as the "pivotal and dispositive" issue "whether IHS' January 24, 2003 letter was supplemental to the declination letter." Id. at 3. The ALJ noted that the IBIA had made "an initial determination" regarding this matter when it stated in its February 20, 2003 order that the December 27, 2003 declination decision was "supplemented on January 24, 2003." Id. Thus, the ALJ stated, the IBIA had determined that the Tribe's appeal was timely. The ALJ further stated that the "statute and regulations do not permit or suggest" that the ALJ is permitted to substitute his judgment for that of the Board. Id.

The ALJ proceeded to set a status conference for April 25, 2003. At that conference, the ALJ noted that IHS had filed with the IBIA a request for reconsideration of his April 18, 2003 order denying the motion to dismiss. AR Ex. 58. (7) The ALJ proposed, and the parties agreed, to proceed with the case before him so as not to delay the case if the IBIA denied the request for reconsideration.

On April 28, 2003, the IBIA issued an order denying IHS's motion to reconsider and referring the motion to the ALJ. AR Ex. 60. The IBIA clarified that it had not ruled on the issue of timeliness and that the ALJ had authority to consider IHS's arguments that the appeal was untimely. Copies of this order were not sent to counsel of record, although other representatives of the parties were served (including the Tribe's President and Ms. Cromwell).

On June 2, 2003, the ALJ issued a decision granting IHS's motion to dismiss for failure to timely file a notice of appeal. AR Ex. 63. The ALJ observed that IHS's January 24, 2003 letter responded to a January 13, 2003 letter from the Tribe complaining that its document requests had not been honored. In addition, the ALJ stated that it was clear from the Tribe's January 13 letter that the Tribe was aware of the process for appealing the December 27, 2002 declination letter since the Tribe's letter stated that "we assume we will be forced to appeal the declination notice from your office." Id. at 3, quoting January 13, 2003 letter. The ALJ concluded that IHS "was providing technical assistance" in its January 24 letter. The ALJ also stated that it was clear from the January 24 letter that IHS did not regard the Tribe's January 13 letter as requesting an extension of the appeal period. Finally, the ALJ found that there is "no statutory or regulatory authority for a 'supplemental' declination." Id. at 4.

The Tribe timely appealed the ALJ's June 2, 2003 decision pursuant to 25 C.F.R. § 900.166.

ANALYSIS
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Below, I discuss the Tribe's arguments on appeal under three separate headings.

1. The Tribe was not deprived of due process as a result of the IBIA's failure to notify counsel of its April 28, 2003 order referring IHS's request for reconsideration to the ALJ.

The Tribe's principal argument is that the ALJ's June 2, 2003 decision should be reversed because the Tribe did not receive notice that the IBIA had referred to the ALJ IHS's request for reconsideration of the ALJ's April 18, 2002 order denying IHS's motion to dismiss or that the ALJ was reconsidering that order. According to the Tribe, the reconsideration and reversal of the order without notice and a hearing violates fundamental due process. The Tribe cites case law for the proposition that "one who has acquired rights by an administrative or judicial proceeding cannot be deprived of them without notice and an opportunity to be heard." Objection to Revised Decision of U.S. Department of the Interior Office of Hearings and Appeals and Motion to Reverse, dated 7/2/03 (Tribe's Objection) at 5, quoting Garfield v. U.S. ex rel. Goldsby, 211 U.S. 249, 262 (1908). (8)

The Tribe's contention that it was not afforded notice and an opportunity for a hearing on this matter is unfounded. Although the IBIA did not serve a copy of its order on counsel for the Tribe, the Tribe does not deny that both the Tribe's President and Ms. Cromwell received copies of the order. These individuals were aware of the Tribe's pending appeal and could have forwarded the IBIA's order to counsel, even if they did not fully understand the significance of the order. In any event, the Tribe had numerous opportunities to address the issue of whether its notice of appeal was untimely. After IHS filed its March 13, 2003 motion to dismiss the notice of appeal as untimely, the Tribe filed a response brief as provided for by the ALJ. In addition, counsel for the Tribe received notice that IHS had filed a request for reconsideration of the ALJ's April 18, 2003 order with the IBIA. Thus, the Tribe could have requested leave from the IBIA to respond to IHS's request. Moreover, the Tribe has had an opportunity in the proceeding before me to make any arguments and submit any documents it believes are relevant. The Tribe initially filed a 15-page brief, accompanied by Exhibits A through N as well as by copies of selected cases cited, in support of its appeal. Following IHS's response, the Tribe filed a 12-page reply brief. In addition, at the Tribe's request, I held an oral proceeding during which the Tribe was permitted to fully air its arguments. (9) (10) Thus, the Tribe has had full process prior to the dismissal of its appeal.

A related argument raised by the Tribe is that IHS's request for reconsideration of the ALJ's April 18, 2003 order was an interlocutory appeal which was not properly referred to the ALJ. Instead, according to the Tribe, IHS was required to wait until after the ALJ issued a final decision on the merits before appealing his ruling on timeliness. In addition, the Tribe argues, the ALJ could not properly reconsider his April 18, 2003 order because IHS did not "establish the existence of a change of circumstances, new evidence, or serious material error." Tribe's Objection at 11. These arguments have no merit. The Tribe does not cite any provision in the applicable regulations precluding an interlocutory appeal, nor any authority for the proposition that an administrative body may never consider an interlocutory appeal. Moreover, IHS in effect alleged a serious material error by contending that the ALJ erred when he found that 1) the IBIA had made an affirmative finding that the Tribe's notice of appeal was timely and 2) he was bound by such a finding.

2. IHS's January 24, 2003 letter was not a supplemental declination that re-commenced the time for filing an appeal.

On appeal of the ALJ's June 2, 2003 decision, the Tribe does not dispute that the Tribe received IHS's December 27, 2002 declination letter on December 31, 2002. The 30th day following receipt of the declination letter was January 30, 2003. Since the Tribe's notice of appeal was dated January 31, 2003, it could not have been timely even if, on that date, the Tribe had used one of the two methods of filing its appeal prescribed by the regulations and either mailed the appeal by certified mail or hand-delivered it to the IBIA. In fact, the Tribe acknowledged that the notice of appeal was mailed by regular mail. Affidavit of Patricia Cromwell dated 7/22/03, ¶ 6. Thus, the appeal was filed at least one day late. (11)

The Tribe argues, however, that the ALJ erred in failing to treat the January 24, 2003 letter as a supplement to the December 27, 2002 declination letter. The Tribe did not dispute the ALJ's conclusion that there is no statutory or regulatory authority for a supplemental declination, but contended that there is "equitable authority arising from well-established case law, whereby timelines are re-tolled on account of agency actions, to avoid unfairness to parties dealing with agencies such as IHS." Tribe's brief dated 7/16/03, at 6 [citations omitted]. Thus, in the Tribe's view, IHS's issuance of the January 24, 2003 letter, which the Tribe received on February 2, 2003, changed the deadline for filing the notice of appeal to March 4, 2003. (12)

I am not persuaded that IHS's issuance of the January 24, 2003 letter re-commenced the 30-day period for filing the notice of appeal. First, IHS's December 27, 2002 letter on its face constituted an appealable declination of the Tribe's proposal. The Tribe did not point to any element of a declination that was missing from the letter, nor did it claim that it did not understand the letter to be an appealable declination. Such a claim would not be credible since the letter gave explicit notice of the Tribe's right to appeal a declination pursuant to 25 C.F.R. § 900.158, and since, as the ALJ noted in his June 2, 2003 decision, the Tribe itself stated in its January 13, 2003 letter that it would "be forced to appeal the declination notice." AR Ex. 40. (13) Thus, there were no defects in the December 27, 2002 letter that were required to be corrected in the January 24, 2003 letter.

Moreover, there is nothing on the face of the January 24, 2003 letter which could reasonably have led the Tribe to believe that it was intended as a supplement to the December 27, 2002 declination letter. (14) The January 24 letter expressly states that it responds to the Tribe's request for further information and provides clarification regarding not only the Tribe's January 13, 2003 letter, as the ALJ noted, but also regarding a letter from the Tribe dated December 16, 2002 which IHS stated was received on December 27, 2002 (the date of the declination letter). In addition to advising IHS of a potential appeal, the January 13 letter stated that the Tribe would be submitting "[p]roposal amendments," further stated that the Tribe assumed that IHS would "continue to attempt to redefine" the funding for which the Tribe had proposed to contract, and requested that IHS freeze funding for the training activities "until this issue is resolved." AR Ex. 40. The December 16 letter included numerous requests for documents relating to the Tribe's proposal, summarized in a "Checklist of Requested Documentation." Tribe's Objection, Ex. N; IHS response dated 7/14/03, Ex. C. (15) IHS's response to the requests made in these letters did not constitute a supplemental declination merely because in the course of responding IHS necessarily addressed some of the same matters addressed in the December 27, 2002 declination letter. Moreover, it is irrelevant whether the January 24, 2003 letter addresses the issues "in more detail" or "clarifies [IHS's] reasoning," as the Tribe alleges (see Tribe's Objection at 9), since the December 27, 2002 declination letter itself was not incomplete. Indeed, IHS was required to provide technical assistance to the Tribe after the declination. (16) There is nothing in the statute or regulations that suggests that anytime IHS provides assistance or information following a declination, it extends the time period for appealing the declination.

Furthermore, I find no basis for the Tribe's assertion that the January 24, 2003 letter created confusion as to the applicable appeal deadline merely because it was issued within the 30-day period for appealing the December 27, 2003 declination letter. Nor does the fact that IHS had corresponded with the Tribe about contracting the training activities in question for two years prior to the issuance of the December 27, 2002 declination letter support the Tribe's allegation that it reasonably viewed that letter as just one more step in ongoing negotiations rather than a determination that had to be appealed within the time set by the regulations.

3. By entering a general notice of appearance, IHS did not waive its right to object to the notice of appeal as untimely.

The Tribe noted that IHS-

voluntarily appeared in this appeal with two general Notices of Appearance filed by counsel. [citation omitted] The IHS did not make a limited or special appearance for the sole purpose of challenging jurisdiction due to untimely notice, but made a general appearance to address the Tribe's appeal on the merits.

The agency's own actions constitute a waiver of the right to complain about lack of notice, after its general appearance in the appeal.

Tribe's Objection at 5; see also id. at 12-13 and Tribe's brief dated 7/16/03, at 2. The Tribe here seemed to be arguing that IHS waived the right to object to the Tribe's failure to serve a copy of the notice of appeal on IHS pursuant to 25 C.F.R. § 900.158(d), a matter which I found in note 6 above is not properly before me. However, in the telephone conference, the Tribe appeared to argue on the same basis that IHS had waived the right to object to any untimely filing of the notice of appeal. This argument is not persuasive. While the Federal Rules of Civil Procedure may allow counsel to file an appearance in a case for one purpose or another, the Federal Rules do not apply here and there is no such provision in the applicable regulations regarding appearance of counsel. Accordingly, the notices of appearance filed by IHS counsel cannot reasonably be viewed as having the significance the Tribe attributes to them.

Conclusion

For the foregoing reasons, I find that the ALJ did not err in dismissing the Tribe's appeal of IHS's declination on the ground that the notice of appeal filed by the Tribe pursuant to 25 C.F.R. § 900.158 was untimely.

JUDGE
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Donald F. Garrett
Board Member

FOOTNOTES
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1. The December 27, 2002 declination letter at issue here was a recommended decision. "Initial decision" refers to a decision issued by IHS if the tribe elects to have an informal conference. See 25 C.F.R. § 900.156.

2. The omitted material provides the IBIA's mailing address.

3. The ALJ's June 2, 2003 decision states that the Tribe argued that it received IHS's December 27, 2002 declination letter on December 31, 2002. ALJ Decision at 3. The Tribe does not dispute the ALJ's statement before me. At one point, however, the Tribe contended that its president did not receive the December 27, 2002 letter until February 7, 2003. AR Ex. 54, at 2, n.1. (All citations to "AR" refer to the administrative record transferred to the Departmental Appeals Board by the Office of Hearings and Appeals on June 3, 2003.) IHS subsequently produced a Federal Express tracking sheet which it asserted "makes clear that the declination was received by Appellant on December 31, 2002." AR Ex. 55, at 2, n.1. (Although IHS represented in AR Ex. 55, its reply to the Tribe's response to its motion to dismiss, that the tracking sheet was attached, the tracking sheet is not in the administrative record. However, a copy of the tracking sheet is at Tab F of IHS's response to the appeal of the ALJ's June 2, 2003 decision.)

4. According to the Tribe, the address for an appeal to the IBIA provided in the December 27, 2002 declination letter was incorrect. AR Ex. 54, at 2, n.2. The address given in the December 27, 2002 letter was on Wilson Boulevard in Arlington, Virginia. The address on the February 20, 2003 IBIA order is on North Quincy Street in Arlington, Virginia.

5. Cassie Temple entered her appearance as a second attorney of record for IHS on May 27, 2003. AR Ex. 62.

6. The motion also alleged that the Tribe's notice of appeal did not meet the 25 C.F.R. § 900.158(a), (c), and (d). However, these alleged deficiencies are not before me since they were not a basis for the June 2, 2003 ALJ decision appealed here.

7. A copy of the Request for Reconsideration of Order denying Appellee's Motion to Dismiss is at AR Ex. 60.

8. The Tribe also cites the statement in Macktal v. Chao, 286 F.3d 822, 826 (5th Cir. 2002), that "[n]otice of the agency's intent to reconsider must be given to the parties." Tribe's Objection at 11 (emphasis added by Tribe). This statement is merely dicta, however, since the agency in that case notified the parties of its intent to reconsider.

9. The tape recording of the July 21, 2003 telephone conference is a part of the record for this decision.

10. At the close of the business day preceding the telephone conference, IHS filed a brief which in effect constituted a sur-reply to the Tribe's appeal. At the telephone conference, the Tribe moved to strike this brief from the record on the ground that I had not provided for the filing of a sur-reply nor had IHS requested leave to file it. The Tribe conceded, however, that IHS had not raised any new issues in its sur-reply. Moreover, the Tribe was given an opportunity to respond to the sur-reply during the telephone conference. Since the Tribe was not prejudiced by the filing of the sur-reply, I deny the Tribe's motion to strike it.

11. I need not determine what the actual filing date was for purposes of this decision.

12. Ms. Cromwell stated that she herself received a fax copy of this letter on January 24, 2003. Affidavit of Patricia Cromwell dated 7/22/03, at ¶ 4. This explains how the Tribe's January 31, 2003 notice of appeal, the substance of which was prepared by Ms. Cromwell, included as an attachment a copy of the January 24 letter, although the Tribe did not receive a copy until February 2, 2003.

13. Moreover, the "Index of documents" enclosed with the notice of appeal describes IHS's December 27, 2002 letter as "IHS - Peter - declination letter - 12/27/02." AR Ex. 42. (The letter was signed by Douglas G. Peter, Acting Area Director.)

14. Contrary to the representation in Ms. Cromwell's affidavit, the "Index of documents" does not describe the January 24, 2003 letter as "IHS supplemental declination letter dated Jan. 24, 2003." Instead, the index refers to the letter as "IHS - Sorensen - explanation of redefining funding allowance - 1/24/03." Compare Affidavit of Patricia Cromwell dated 7/22/03, ¶ 5, and AR Ex. 42. (The letter was signed by Rick R. Sorensen, Associate Area Director.) Moreover, the text of the Tribe's notice of appeal makes no reference to the January 24, 2003 letter. The Tribe simply pointed to no evidence that it viewed that letter as supplementing the December 27, 2002 declination letter, that any information in the January 24 letter caused it to file its appeal, or that there were other, extenuating circumstances that resulted in the late appeal.

15. A complete copy of this document is missing from the administrative record transmitted to the Departmental Appeals Board, although the checklist is included in AR Ex. 40 with the January 13, 2003 letter.

16. Section 900.30 of 25 C.F.R. states:

When the Secretary declines all or a portion of a proposal, is the Secretary required to provide an Indian tribe or tribal organization with technical assistance?

Yes. The Secretary shall provide additional technical assistance to overcome the stated objections, in accordance with section 102(b) of the Act, and shall provide any necessary requested technical assistance to develop any modifications to overcome the Secretary's stated objections.

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