UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

THE NAVAJO NATION, 

 Plaintiff, 

 v. 

U.S. DEPARTMENT OF THE INTERIOR, 

et al., 

Defendants. 

 No. 20-cv-1093 (DLF)

MEMORANDUM OPINION

Before the Court are the plaintiff’s Motion for Summary Judgment, Dkt. 12, and the 

government’s Cross-Motion for Summary Judgment, Dkt. 13. For the reasons below, the Court 

will grant the plaintiff’s motion and deny the government’s motion. 

I. BACKGROUND

A. Legal Background 

“Congress enacted the Indian Self-Determination and Education Assistance Act 

(“ISDEAA”) to help Indian tribes assume responsibility for programs or services that a federal 

agency would otherwise provide to the tribes’ members.” Navajo Nation v. U.S. Dep’t of 

Interior, 852 F.3d 1124, 1126 (D.C. Cir. 2017). Under that Act, Indian tribes may enter “selfdetermination contract[s] . . . to plan, conduct, and administer programs” that the Secretary of the 

Interior operates for their benefit. 25 U.S.C. § 5321(a)(1). To form such a contract, a tribe must 

first propose terms to the Secretary. Id. § 5321(a)(2). From there, “the Secretary shall . . . 

approve the proposal” within ninety days “unless” he “clearly demonstrates,” or supports with 

“controlling legal authority,” one of the five showings listed in § 5321(a)(2). These grounds for 
2 

rejecting the proposal include that the tribe’s “proposed project . . . cannot be properly completed 

or maintained by the proposed contract,” id. § 5321(a)(2)(C), and that a tribe has requested funds 

“in excess of [its] applicable funding level,” id. § 5321(a)(2)(D).

Upon entering a self-determination contract, tribes are entitled to IHS funding for both 

“direct program expenses” and “contract support costs.” 25 U.S.C. § 5325(a)(3)(A). This 

funding may be awarded through Annual Funding Agreements (AFAs), which “represent[] the 

negotiated agreement of the Secretary to fund, on an annual basis, the programs, services, 

activities and functions transferred to an Indian tribe.” 25 C.F.R. § 900.6. The process for 

approving an AFA, like that of forming a self-determination contract, begins with a proposal 

from the tribe to the Secretary. See id. § 900.32. If a proposed AFA is “substantially the same” 

as the prior AFA, the Secretary “shall approve and add to the contract the full amount of funds to 

which the contractor is entitled.” Id. Otherwise, the portions of the proposal that are not 

“substantially the same” are subject to “declination criteria and procedures” that apply to selfdetermination contracts. Id. Thus, the Secretary may decline to approve those portions “only . . . 

for one of [the] five specific reasons” listed in 25 U.S.C. § 5321(a)(2). Id. § 900.22. 

If the Secretary declines to approve a proposed AFA, the affected tribe may challenge the 

Secretary’s decision in federal district court. See 25 U.S.C. § 5331(a); 25 C.F.R § 900.153. As 

an alternative, the tribe may appeal the decision to the Interior Board of Indian Appeals (IBIA), 

with the possibility of further review in federal court. See 25 C.F.R. § 900.158; 25 U.S.C. § 

5331(a). Finally, the tribe may request an informal conference to be “conducted by a designated 

representative of the Secretary.” 25 C.F.R. § 900.155(c). If the tribe elects to participate in an 

informal conference, the presiding representative will issue a written report that “summarizes 

what happened at the [] conference and [contains] a recommended decision.” Id. § 900.156(a). 
3 

If a tribe is “dissatisfied” with that decision, it may appeal within thirty days to the IBIA. Id.

§ 900.156(b). Otherwise, “the recommended decision becomes final.” Id. § 900.157. 

B. Factual Background

The Navajo Nation is a federally recognized Indian tribe that operates a forestry 

management program pursuant to a self-determination contract. See Pl.’s Statement of Material 

Facts Not in Dispute ¶ 1, Dkt. 12. Under that contract, the Nation receives funding through 

Annual Funding Agreements (AFAs) and Successor Annual Funding Agreements (SAFAs). Id.

¶ 2. On September 28, 2019, the Nation submitted a proposed SAFA for contract year 2020, 

which requested $737,745 to cover direct program expenses. Compl. Ex. A at 33, Dkt. 1-1. The 

SAFA also proposed modifying which forest management functions the contract covers. See id.

at 22–26. Under its terms, the Nation would be permitted to “operate a woodlot to produce 

firewood for sale to the public” and would be exempt from several reporting requirements that 

were contained in the 2019 SAFA. Id. at 25. 

On December 19, 2019, the Secretary denied the Nation’s proposed SAFA. See Compl. 

Ex. B, Dkt. 1-2. To support that denial, the Secretary found that the Nation requested funding 

“in excess of the . . . funding level” available under the parties’ contract. Id. at 3 (citing 25 

C.F.R. § 900.22(d)). He also found that the SAFA’s subject matter could not “be properly 

completed or maintained by the proposed contract,” 25 U.S.C. § 5321(a)(2)(C). Id. at 2–3. 

On January 7, 2020, the Nation requested the review of that decision in an informal 

conference. See Compl. Ex. C at 3, Dkt. 1-3. Following that conference, the Secretary’s 

representative directed that the Nation receive $717,736.77 for direct program expenses under its

contract. Id. at 4. The representative also found that the 2020 SAFA was not “substantially 

different” from the 2019 SAFA, which required approving its terms irrespective of the 
4 

declination criteria in 25 U.S.C. § 5321(a)(2). Id. at 7. Finally, the representative found that, 

even if the declination criteria applied, the Secretary failed to show that the subject matter of the 

SAFA could not “be properly completed or maintained by the proposed contract.” Id. (quoting 

25 U.S.C. § 5321(a)(2)(C)). Having explained those findings, the representative then directed 

the parties to “convene and make a good faith effort, on a government-to-government basis, to 

develop a CY2020 SAFA that complies with the statutory requirements at” 25 U.S.C. § 5329. 

Id. at 6. In the meantime, the representative ordered, the 2019 SAFA would remain in place. Id. 

Because the Nation did not appeal the representative’s decision within thirty days, it became 

final on March 30, 2020. 25 C.F.R. § 900.157. 

On April 4, 2020, the Nation filed the instant Complaint, Dkt. 1, which alleged that the 

Secretary had “not complied with the Decision of the Secretary’s Designated Representative.” 

Compl. ¶ 17. The Complaint seeks declaratory and injunctive relief under 25 U.S.C. § 5331(a), 

see Compl. ¶¶ 25–26, which authorizes tribes to challenge “any action by an officer of the 

United States” that is “contrary to this chapter”—i.e., ISDEAA, 25 U.S.C. § 5331(a). Among 

other things, the Complaint requests that the Court “compel[] the Defendants to approve the 

2020 SAFA and Statement of Work as proposed by the Nation on September 28, 2019 and to 

immediately award and provide applicable funding of at least $717,736.77.” Compl. ¶ 26. 

On June 10, 2020, the Secretary awarded the Nation $740,341.00 for direct program 

expenses “[i]n accordance with the Recommended Decision.” Pl.’s Mot. Ex. 1 at 2, Dkt. 12-1. 

The Secretary also informed the Nation that the 2019 SAFA “will remain in place” pending the 

negotiations described in the Recommended Decision. Id. In response, the Nation told the 

Secretary that it believed the continuance of the 2019 SAFA to be “contrary to law.” Pl.’s Mot. 

Ex. 2 at 1, Dkt. 12-2; see also Pl.’s Mot. Ex 3. at 1–2, Dkt. 12-3. 
5 

On September 25, 2020, the Nation moved for summary judgment, Dkt. 12. On 

November 4, 2020, the Secretary cross-moved for summary judgment, Dkt. 13. In the Nation’s

memorandum supporting its motion, the tribe acknowledges that the dispute over its funding 

level is now “moot,” on account of the Secretary’s June 10 award. Pl.’s Mot. at 1; see also Pl.’s 

Mem. in Supp. of Summ. J. at 8 (“there is no longer any issue as to the amount of funding to be 

provided pursuant to the 2020 SAFA”). As such, the only issue remaining in this case is whether 

the Secretary must approve the Nation’s proposed language for the 2020 SAFA. 

This Court has subject-matter jurisdiction under § 5331(a), which confers original 

jurisdiction over any “claim against the [] Secretary arising under” ISDEAA. The Nation has 

standing to sue because the continued effect of the 2019 SAFA limits the manner in which the 

tribe may expend its resources, see Compl. Ex. A at 25, and because that limit is an injury that is 

particularized, imminent, and concrete. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 

(1992). Finally, the pending motions are ripe for review. 

II. LEGAL STANDARD

A court grants summary judgment if the moving party “shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A 

“material” fact is one with potential to change the substantive outcome of the litigation. See 

Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). And a 

dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for 

the nonmoving party. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “If there 

are no genuine issues of material fact, the moving party is entitled to judgment as a matter of law 

if the nonmoving party ‘fails to make a showing sufficient to establish the existence of an 
6 

element essential to that party’s case, and on which that party will bear the burden of proof at 

trial.’” Holcomb, 433 F.3d at 895 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

III. ANALYSIS 

Under ISDEAA and its implementing regulations, the Secretary “shall” approve a 

proposed AFA within ninety days “unless” he makes one of the showings listed in § 5321(a)(2). 

25 U.S.C. § 5321(a)(2); see also 25 C.F.R. § 900.22. These provisions further require that the 

Secretary’s factual findings must be “clearly demonstrate[d]” and his legal conclusions must be 

“supported by a controlling legal authority.” 25 U.S.C. § 5321(a)(2). Here, the Secretary denied 

the Tribe’s 2020 SAFA on the grounds that its terms could not be “properly completed” under 

the contract, 25 U.S.C. § 5321(a)(2)(C), and that the Nation requested funds over “the applicable 

funding level,” id. § 5321(a)(2)(D). But a representative of the Secretary reached contrary 

conclusions on both issues, which became final for the agency in March 2020. See 25 C.F.R. 

§ 900.157. And even now, the Secretary does not argue that its initial denial either “clearly 

demonstrated” its factual basis or adequately “supported” its legal conclusions, as § 5321(a)(2) 

and its regulations mandate. Instead, the Secretary disputes whether § 5321(a)(2) applies at all in 

these circumstances, see Defs.’ Mem. at 14, Dkt. 13-1, and if it does, whether its remedies apply, 

see Defs.’ Reply at 5, Dkt. 17. The Secretary is incorrect on both fronts. 

The plain text of the section sets up a simple dichotomy: the Secretary “shall” approve a 

proposed contract “unless” he satisfies certain conditions. 25 U.S.C. § 5321(a)(2). “[T]he word 

‘shall’ usually connotes a requirement,” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 

1969, 1977 (2016), and no language in § 5321(a) diffuses that presumption. Further, although 

ISDEAA contains one exception from the above dichotomy, see id. § 5321(a)(2) (allowing the 

Secretary to “extend or otherwise alter the 90-day period” for answering a proposed contract 
7 

with “the voluntary and express written consent of the” affected tribe), the enumeration of that 

one exception suggests the absence of others, see Russello v. United States, 464 U.S. 16, 23 

(1983). Finally, allowing the Secretary to resume negotiations over a proposal after having 

erroneously denied the same proposal would render § 5321(a)(2)—and its requirement to either 

approve such proposals or adequately justify their denial—“superfluous in all but the most 

unusual circumstances.” TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001). Thus, because the 

Secretary did not satisfy the “unless” clause of § 5321(a)(2), the section’s “shall” clause requires 

him to approve the proposed SAFA. 

The remedies provided by § 5321(a)(2) apply here, even though the Tribe invoked the 

statute’s informal conference process, rather than its other appeal provisions. The purpose of an 

informal conference is to review the Secretary’s initial denial of a proposed contract, see 25 

C.F.R. §§ 900.153, 900.155, which is governed by § 5321(a)(2). And when a federal statute 

limits the remedies available in an initial adjudication, the default rule is that the same limit 

applies on appeal of that adjudication. See, e.g., 5 U.S.C. § 557(b) (“On appeal from or review 

of the initial decision, the agency has all the powers which it would have in making the initial 

decision except as it may limit the issues on notice or by rule.”). Here, no statute expands the 

remedies available in an informal conference beyond those listed in § 5321(a)(2). See Defs.’ 

Reply at 5. And the Secretary may not, through regulation, expand the remedies that Congress 

has made available by statute. See Alexander v. Sandoval, 532 U.S. 275, 291 (2001). Thus, the 

remedies available to the Secretary were restricted to those set forth in § 5321(a)(2). 

 The Secretary’s remaining arguments do not persuade, see Defs.’ Mem. at 10–13. First, 

the Nation did assert the claims it presses here. See Compl. ¶ 20 (“[w]here the [Secretary] 

declines a proposal on a ground that is legally insufficient, the result is that the proposal is 
8 

approved”); id. ¶ 21 (“[b]ecause the [Secretary’s] grounds for declining the Nation’s 2020 SAFA 

were legally insufficient, the SAFA . . . [is] approved as a matter of law”). And by alleging that 

the Secretary’s initial decision was “legally insufficient” and by requesting “injunctive relief 

compelling the Defendants to approve the 2020 SAFA,” see id. ¶¶ 21, 26, the complaint 

necessarily challenged the Recommended Decision, which, first, affirmed the initial decision 

insofar as it left the 2019 SAFA in place and, second, would be modified by the requested relief. 

This case thus bears no resemblance to those in which this Court has declined to reach “new 

claims . . . not raised in the complaint.” Quinn v. District of Columbia, 740 F. Supp. 2d 112, 130 

(D.D.C. 2010) (brackets omitted); see id. (“Plaintiffs did not plead a common law claim of 

promissory estoppel in their Complaint nor does the Complaint contain any suggestion that 

Plaintiffs intended to assert such a claim.”); Winder v. District of Columbia, 555 F. Supp. 2d 103, 

109 (D.D.C. 2008) (“Count IX of the complaint does not plead a breach of contract claim based 

on any earlier contracts, [so] Winder’s attempt to add such a claim through summary judgment 

briefing is impermissible.”); Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 97 n.3 

(D.D.C. 2007) (The plaintiff could not raise “additional violations of the ADA not mentioned in 

the complaint.”).

Second, the Nation did not forfeit its challenge to the renegotiation required by the 

Recommended Decision by seeking to enforce the decision in another respect, see Defs.’ Mem. 

at 12. As discussed above, the Nation argued that the decision required the Secretary to provide 

it $717,736.77 for direct program expenses. See Compl. ¶¶ 15–17. At the same time, the Nation 

challenged the decision’s command that the parties suffer the 2019 SAFA until they negotiate 

updated terms. See Compl. ¶¶ 20–21, 26. Without citing any legal authority, the Secretary 

argues that the tribe “should not be able to represent that an agency action is final and 
9 

enforceable” in one respect, only to “seek an injunction against the same agency action” in the 

same case. Defs.’ Mem. at 12. But there is nothing unusual about relying on one part of an 

agency action while challenging another. The Administrative Procedure Act (APA) 

contemplates that very course by creating a cause of action to challenge “agency action,” 5 

U.S.C. § 702, and defining “agency action” to include “a part of an agency rule, order, license, 

sanction, relief, or the equivalent or denial thereof,” id. § 551(13) (emphasis added). 

Finally, the Tribe did not forfeit any challenge to the Recommended Decision by failing 

to challenge it within thirty days, see Defs.’ Reply at 5–6. The Secretary invokes 25 C.F.R. 

§ 900.157, which provides the outcome of an informal conference becomes “final” if it is not 

appealed within that time, then reads the word “final” to mean unreviewable. See id. But in the 

administrative context, the word “final” instead describes a prerequisite to judicial review. With 

exceptions not relevant here, the APA authorizes judicial review of “final agency action for 

which there is no other adequate remedy in a court.” 5 U.S.C. § 704. An agency’s decision is 

final, in this respect, when it “mark[s] the consummation of the agency’s decisionmaking 

process” and when it is “one by which rights or obligations have been determined, or from which 

legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal 

quotation marks and citations omitted). Against that backdrop, Congress has regularly specified 

both the conditions on which an agency action will become “final” and those on which that 

action will later be subject to judicial review. See, e.g., 42 U.S.C. § 1395oo(f)(1) (providing, 

first, that a “decision of the Board shall be final unless the Secretary . . . reverses, affirms, or 

modifies the Board’s decision” and, second, that certain parties “shall have the right to obtain 

judicial review of any final decision of the Board”). So too here. Section 900.157 indicates that 

recommended decisions both mark the consummation of the Secretary’s decisionmaking and 
10 

determine tribes’ rights under their contracts. See Bennett, 520 U.S. at 177–78. Thereafter, § 

5331(a) of ISDEAA authorizes the review of recommended decisions in federal court. See 25 

U.S.C. § 5331(a) (allowing judicial review of any “claim against the . . . Secretary arising under” 

ISDEAA); see also id. § 5321(b)(3) (emphasizing that a tribe “may, in lieu of filing [an 

administrative] appeal, exercise the option to [immediately] initiate an action in a Federal district 

court”). Nothing in this familiar scheme bars the Nation’s complaint, which properly challenges 

the Recommended Decision pursuant to § 5331(a). 

Because § 5321(a)(1) requires that the Nation’s 2020 Successor Annual Funding 

Agreement be approved, the Secretary shall approve it. 

CONCLUSION

For the above reasons, the plaintiff’s Motion for Summary Judgment, Dkt. 12, is 

GRANTED and the government’s Cross-Motion for Summary Judgment, Dkt. 13, is DENIED. 

A separate order consistent with this decision accompanies this memorandum opinion. 

 ________________________ 

 DABNEY L. FRIEDRICH

United States District Judge

September 16, 2021