Court Can’t Review Tribal Health-Care Contract

(CN) - The 10th Circuit said it lacks jurisdiction to review the details of a contract between the Department of Health and Human Services and the Southern Ute Indian Tribe. The tribe won the right to control its federally funded health programs, but challenged the government's cap on funding for ancillary costs.

HHS initially declined the tribe's proposal to operate the Southern Ute Health Center, because it didn't think the tribe would be able to manage the program without additional federal funding, which Congress capped at about $263.6 million. The agency said there were no new funds available for "contract support costs" in 2005.

But the district court said this reason alone couldn't prevent the government from accepting the tribe's proposal. It ordered the government to strike a contract with the tribe, but acknowledged that the agency "is between a rock and hard place if it has no discretion to decline contracts, no discretion to pay less than full [contract support costs] on all outstanding contracts, and receives inadequate appropriations to meet its obligations."

The tribe and HHS failed to agree on the terms of the new contract, however, prompting more litigation and a second order from the district court.

This time, the lower court sided with the HHS.

"The tribe would be paid $0 now, would be placed on the 'shortfall list,' and would be paid contract support costs if and when funds became available," the Denver-based federal appeals court explained.

The 10th Circuit dismissed the tribe's appeal, saying it lacked jurisdiction to review the second order, because it wasn't a final judgment on the merits.

"We empathize with the plight of the Tribe in securing self-determination, but, we cannot take jurisdiction where none is to be had," Judge Henry wrote.

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