AMY BERMAN JACKSON, United States District Judge.
Plaintiff Burt Lake Band of Ottawa and Chippewa Indians (formerly known as the Cheboygan Band) describes itself as "the last `landless' tribe in Michigan." Am. Compl. [Dkt. #11] ¶ 11. This case arises out of the fact that plaintiff has been seeking formal federal recognition, which would give the Burt Lake Band (or "the Band") a number of rights and benefits, since at least 1935. Plaintiff has brought this action against Ryan Zinke, in his official capacity as Secretary of the Interior; John Tahsuda III in his official capacity as the Acting Assistant Secretary for Indian Affairs for the Department of the Interior;
The complaint sets out a rather remarkable and undisputed history of inaction. In 1935, a group of the Band's ancestors petitioned the Bureau of Indian Affairs ("BIA") within the Department of Interior to be recognized under the Indian Reorganization Act of 1934. Am. Compl. ¶ 13. The agency has never issued a final decision on the 1935 Petition. Id. ¶¶ 74-85. In 1985, the Band filed another petition. Id. ¶ 99. The 1985 petition went unanswered for more than 20 years, until it was denied in 2006. Id. ¶ 107. Plaintiff did not seek review of the 2006 decision.
In 2014, the Bureau of Indian Affairs initiated a rulemaking to reform the federal recognition process, and it solicited comments on a proposed rule that would revise the existing regulations. Fed. Acknowledgment of Am. Indian Tribes, 79 Fed. Reg. 30766 (proposed May 29, 2014) (to be codified at 25 C.F.R. pt. 83) ("Proposed Rule"). One of the provisions in the proposal sent out for notice and comment, would have allowed Tribes to re-petition the agency for recognition under certain circumstances. Id. Ultimately, the agency chose not to adopt that provision, stating that "allowing for re-petitioning by denied petitioners would be unfair to petitioners who have not yet had a review," and identifying other efficiency concerns. Fed. Acknowledgment of Am. Indian Tribes, 80 Fed. Reg. 37862, 37875 (July 1, 2015) (to be codified at 25 C.F.R. pt 83) ("2015 Regulations").
Plaintiff filed this lawsuit on January 9, 2017, Compl. [Dkt. # 1], and filed an amended complaint on June 1, 2107. Am. Compl. The amended complaint includes seven constitutional and statutory claims. Counts I, II, and III challenge the agency's failure to issue a final decision on the 1935 Petition under the APA, the Due Process Clause, and the Equal Protection Clause of the 5th Amendment. Counts IV, V, and VI challenge the agency's 2015 Regulations under the APA, the Due Process Clause, and the Equal Protection Clause. The final count, Count VII, invokes the Federally Recognized Indian Tribe List Act and demands that the Court order the Secretary to place the Band on the List. Based on these claims, plaintiff seeks the following relief:
Am. Compl. "Prayer for Relief" ¶¶ 1-5.
Defendants moved to dismiss Counts I-III on statute of limitation grounds,
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff `the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is `an Art[icle] III as well as a statutory requirement... no action of the parties can confer subject matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal, the Supreme
A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937, citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiffs favor, and it should grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs' legal conclusions. See id.; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).
In Counts II and III, plaintiff alleges that it was injured by defendants' failure to issue a formal denial of the 1935 Petition for recognition. Am. Compl. ¶¶ 170, 173. It contends that this is a violation of its constitutional rights under the Due Process Clause and the Equal Protection Clause of the Fifth Amendment. Id. ¶¶ 169-75.
Defendants move to dismiss these counts for lack of subject matter jurisdiction under Rule 12(b)(1) on the grounds that the claims are barred by the statute of limitations. Defs.' Mot. at 13-17. They invoke 28 U.S.C. § 2401(a), which provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a); Defs.' Mot. at 15.
Section 2401, entitled "Time for Commencing action against United States," contains two paragraphs. Subsection (a) prescribes the six year statute of limitations for all civil actions against the United States, and subsection (b) sets out a notice provision that applies to tort claims. See 28 U.S.C. § 2401(a)-(b). The D.C. Circuit has held that "unlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity, and as such
Plaintiff contends that the Court "should no longer" consider section 2401(a) to be a jurisdictional condition because the Supreme Court recently held in United States v. Kwai Fun Wong, that subsection 2401(b) is not jurisdictional. Pl.'s Opp. at 10-11, citing ___ U.S. ___, 135 S.Ct. 1625, 1627-28, 191 L.Ed.2d 533 (2015) (ruling that time limitations under section 2401(b) are non-jurisdictional and subject to equitable tolling because the "Court will not conclude that a time bar is jurisdictional unless Congress provides a `clear statement' to that effect" and "Congress did no such thing in enacting § 2401(b)"). Plaintiff's argument has considerable force. But neither the Supreme Court nor the Court of Appeals has yet applied the reasoning of Kwai Fun Wong to section 2401(a). Since Spannaus remains the law of this circuit, this Court is bound by it. See Mdewakanton Sioux Indians of Minn. v. Zinke, 264 F.Supp.3d 116, 130 n. 21 (D.D.C. 2017) ("The Court follows the explicit holding of the D.C. Circuit that section 2401(a) creates a jurisdictional condition attached to the government's waiver of sovereign immunity.") (internal citations omitted); Shinogee v. Fanning, 234 F.Supp.3d 39, 42 (D.D.C. 2017) (following Spannaus); Chacoty v. Tillerson, No. 14-764, 285 F.Supp.3d 293, 303-04, 2018 WL 443493 at *7 (D.D.C. Jan. 16, 2018) (same).
According to defendants, the six-year statute of limitations imposed by 28 U.S.C. § 2401(a) expired long ago. The Court agrees. Plaintiff maintains that the statute of limitations would not have started to run until the agency officially denied its petition. Pl.'s Opp. at 5. But "a cause of action accrues when the injured party discovers — or in the exercise of due diligence should have discovered — that it has been injured." Sprint Commc'ns Co. v. FCC, 76 F.3d 1221, 1228 (D.C. Cir. 1996). Here, plaintiff describes the injury as the BIA's "non-decision" or its "failure to inform the Band" that there would be no formal decision on the 1935 Petition. Am. Compl. ¶¶ 17, 73, 170, 173. It is hard to put one's finger on the exact date when plaintiff should have been aware that the agency had taken no action on its 1935 Petition — 1938? 1941? 1945? — but there is no question that we crossed that bridge more than six years ago.
By plaintiff's own account, it discovered its injury in the 1980s. The complaint notes that plaintiff obtained "internal correspondence" of DOI officials in the 1980s when it was in the process of preparing another petition. Am. Compl. ¶ 85. This internal correspondence revealed that "[t]he BIA made an informal, internal decision that was treated as a conclusive resolution of the Band's rights within the DOI for all practical purposes." Id. ¶ 69. According to plaintiff, the "internal decision" to deny the Band recognition was based on limited funds rather than the Tribe's legal eligibility. Id. ¶ 76. So at the very latest, plaintiff was on notice of its claim at some point in the 1980s.
Plaintiff argues though, that equitable tolling should be applied in its case because it faced "extraordinary" circumstances due to the agency's failure to respond
Plaintiff also contends that equitable estoppel prevents defendants from raising the statute of limitations defense. Pl.'s Opp. at 12-14. But this remedy is unavailable for the same reasons. See W. Va. Highlands Conservancy v. Johnson, 540 F.Supp.2d 125, 138 (D.D.C. 2008) ("Moreover, when a statute of limitations has been regarded as jurisdictional, "it has acted as an absolute bar [that cannot] be overcome by the application of judicially recognized exceptions ... such as waiver, estoppel, equitable tolling ... fraudulent concealment, the discovery rule ... and the continuing violations doctrine."), quoting Felter v. Norton, 412 F.Supp.2d 118, 122 (D.D.C. 2006).
Because the Court is required to find that section 2401(a) is applicable and jurisdictional, and that the six-year limitations period has expired, it will dismiss Counts II and III for lack of subject matter jurisdiction.
In Count IV, plaintiff accuses the agency of acting in an "arbitrary and capricious manner," and acting outside of its "congressionally delegated authority" in violation of the APA when it adopted the 2015 Regulations. Am. Compl. ¶¶ 179, 182. According to plaintiff:
Id. ¶ 182. In Count V, plaintiff contends that the "blanket refusal to reconsider a revised petition previously denied under a system where the fairness and reliability of existing rules have been called into question" violates its Due Process rights under Fifth Amendment. Id. ¶ 192. And in Count VI plaintiff alleges that 2015 Regulations discriminate against similarly-situated Tribes by permitting some Tribes to petition and be recognized under less burdensome criteria while denying that same opportunity to plaintiff. Id. ¶¶ 196-98. For these reasons plaintiff asks the Court to declare the 2015 Regulations "unlawful,
Defendants argue that plaintiff lacks standing to challenge the 2015 Regulations in Counts IV, V, and VI because it was not injured by the rule's ban on re-petitioning. According to defendants, such a prohibition was already put in place by regulations adopted in 1994, so "the 2015 [R]egulations did not injure [p]laintiff as they merely continued the pre-existing bar on re-petitioning." Defs.' Mot. at 18. This is a very cramped interpretation of the standing doctrine. It is indisputable that the agency initiated a new rulemaking process in 2014 that expressly proposed enacting a provision that would have allowed for re-petitioning, and it invited public comment on that issue. Plaintiff submitted comments on the proposed rule because it was directly affected by the re-petitioning ban, and a change in the regulations would have enabled it to submit a "new petition based on new facts and circumstances" that the Band had gathered since the agency denied its petition in 2006. Pl.'s Opp. at 15-16.
Because the Court finds that plaintiff was plainly adversely affected and aggrieved by the choices made by the agency when it promulgated the 2015 Regulations, and that its injury is concrete and particularized, it will allow Counts IV, V, and VI to proceed.
Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is lacking, then the dispute is not a proper case or controversy under Article III of the U.S. Constitution, and federal courts have no subject matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012). To establish standing, "the [p]laintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal quotation marks
Here, defendants challenge the first element of Article III standing, injury-in-fact, with respect to Counts IV, V, and VI. Defs.' Mot. 17-20.
The facts related to the agency's rulemaking process bear directly on the standing issue. On May 29, 2014, the BIA published a public notice of a proposed rule to revise the regulations governing the federal recognition of Indian Tribes under 25 C.F.R. § 83 based on its recognition that the process was "criticized as `broken.'" Proposed Rule at 30766. The agency summarized the purpose of the proposed rule as follows:
Id.
On the issue of re-petitioning, the agency explained that the proposed rule would "[a]llow, in limited circumstances, a petitioner previously denied under the regulations to re-petition under the revised rule," and it invited public comment on this and other proposed changes.
During the notice and comment period, plaintiff submitted comments to the agency on the proposed changes, including the proposed re-petitioning provision, which would have given it the opportunity to re-petition after the 2006 denial. Am. Compl. ¶ 144; Ex. D to Am. Compl. [Dkt. #11-4]. The Band wrote that it supported the proposed rule for re-petitioning because "[a]llowing new petitioners to be recognized under less onerous criteria without giving the same opportunity to a Tribe denied acknowledgement under prior more stringent criteria would be grossly unfair." Ex. D to Am. Compl.
Ultimately, the agency did not adopt the re-petitioning provision. On July 1, 2015, it published its final rule and explained:
2015 Regulations at 37875. It is this rule, enacted in 2015, that plaintiff challenges in Counts IV, V, VI.
The Court finds that plaintiff was adversely affected and aggrieved by the
The Court also finds that the fact that the bar on re-petitioning was in place prior to the 2015 Regulations is completely irrelevant, since the agency undertook a rulemaking process in 2014 that proposed a new rule that would allow Tribes to re-petition, and it is the agency's rejection of this provision in its final rule that plaintiff challenges.
Defendants cite to a single case in support of the proposition that plaintiff was not injured. Defs.' Mot. at 74, citing Miami Nation of Indians of Ind., Inc. v. Babbitt, 112 F.Supp.2d 742, 744 (N.D. Ind. 2000). But that case, from a district court in another circuit, is inapposite because it adjudicates the merits of a Tribe's denied petition and has nothing to do with standing. Miami Nation of Indians of Ind., Inc., 112 F.Supp.2d at 744-45. Therefore, for the reasons stated the Court will allow Counts IV, V, and VI to proceed.
Plaintiff's final count seeks relief that the Court has no authority to grant. In Count VII, plaintiff invokes the Federally Recognized Indian Tribe List Act, 25 U.S.C. § 1530, and asks the Court to order the Secretary of the Interior to place the Band on the List. Am. Compl. ¶¶ 201, 205. Defendants move to dismiss this count for failure to state a claim upon which relief granted, noting that the "List Act does not provide an independent cause of action...." Defs.' Mot. at 20. The Court agrees. The Court does not have free-standing authority to by-pass the entire federal recognition process and order the agency to add plaintiff to the List, and the avenue to seek review of agency action is under the APA. See 5 U.S.C. § 706.
For the reasons stated, Count I has been withdrawn, and the Court will dismiss Counts II and III for lack of subject matter jurisdiction. Counts IV, V, and VI will proceed because the Court finds that plaintiff has standing to challenge the 2015 Regulations. Count VII will be dismissed for failure to state a claim upon which relief can be granted. A separate order will issue.
Id. (internal citations and quotation marks omitted). Here, plaintiff clearly falls within the zone of interests since it maintains that it is an unrecognized Indian Tribe and the regulations it challenges squarely deal with Indian affairs and the federal recognition process. See Mackinac Tribe v. Jewell, 829 F.3d 754, 757 (D.C. Cir. 2016) ("Congress delegated to the Secretary the regulation of Indian relations and affairs, see generally 25 U.S.C. § 2, including authority to decide in the first instance whether groups have been federally recognized in the past or whether other circumstances support current recognition."); see also 25 C.F.R §§ 83.2, 83.3 (2015) (providing that the regulations "establish[] procedures and criteria for the Department to use to determine whether a petitioner is an Indian Tribe eligible for special programs and services" so the regulations apply "only to indigenous entities that are not federally recognized Indian Tribes").
Proposed Rule at 30774.
Federal recognition:
25 C.F.R. § 83.2.
