MEMORANDUM OF POINTS AN AUTHORITIES

Transcription

1 Case :-cv-000-ckj Document 0 Filed 0// Page of ELIZABETH A. STRANGE First Assistant United States Attorney District of Arizona J. COLE HERNANDEZ Assistant U.S. Attorney Arizona State Bar No cole.hernandez@usdoj.gov 0 W. Congress Street, Suite 00 Tucson, Arizona 0-00 Telephone: (0) 0-00 Civil fax: (0) 0- Attorney for United States of America Raymond Cross vs. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Plaintiff, United States Department of the Interior, Defendant. Case No. CV--0-TUC-CKJ DEFENDANT S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. (b)() Defendant United States Department of Interior, by and through undersigned counsel, hereby files its Motion to Dismiss this case for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. (b)(). This Motion is supported by the accompanying Memorandum of Points and Authorities and all matters of record. I. Procedural Background MEMORANDUM OF POINTS AN AUTHORITIES Plaintiff brings this Complaint for Declaratory Relief ( Complaint ) seeking a determination that the Department of the Interior ( DOI ), through its Fort Berthold Agency ( FBA ) Superintendent and its Great Plains Regional Director ( Regional Director ) of the Bureau of Indian Affairs ( BIA ), improperly determined the number of signatures needed for a valid petition to call a secretarial election to amend the Tribal Constitution. (Doc. at -.) Plaintiff alleges this was done in contravention of C.F.R.

2 Case :-cv-000-ckj Document 0 Filed 0// Page of and Article X of the Constitution of the Three Affiliated Tribes ( TAT ) of the Fort Berthold Reservation in North Dakota. Id. Plaintiff claims his ability to amend his own Tribes Constitution by presenting a proposed amendment and the appropriate number of signatures was stymied by actions of the BIA. Id. On May, 0, Plaintiff ed the FBA Superintendent requesting the number of tribal members signatures needed on his petition to meet the requirements under Article X of the TAT Constitution pursuant to C.F.R.. (a)(). Plaintiff further stated that the Constitution defines eligible voters as tribal members who are years of age or older, but noted that the Constitution does not define qualified voters. (See Exhibit, Declaration of Todd Gravelle, and Att. thereto.) On May, 0, the FBA Superintendent sent a letter, via , to the Chairman of the TAT informing the Chairman of Plaintiff s letter requesting the total number of tribal members age or older, consistent with C.F.R..(a)()(i). (Exhibit, and Att. thereto.) The Superintendent noted that she received a request for information on the process to initiate a Tribal Member sponsored Petition to amend the Tribe s Constitution. Id. By response of the same date, the TAT s Enrollment Officer informed the FBA Superintendent there were 0,0 living adult (age +) tribal members as of that date. (Exhibit, and Att. thereto.) By letter dated May, 0, the FBA Superintendent informed Plaintiff of the total number of living adult tribal members, and that consistent with Article X of the Tribe s Constitution,, signatures would be needed for a valid petition, provided the other strict requirements under the Secretarial Election regulations for a valid petition are followed. The FBA s Superintendent sent the letter in accordance with C.F.R..()(ii). (Exhibit, and Att. thereto.) On June, 0, Plaintiff ed the FBA Superintendent stating that he was preparing to file an appeal regarding the number of signatures needed to validate his petition. He also requested the Superintendent re-issue the letter because she did not - -

3 Case :-cv-000-ckj Document 0 Filed 0// Page of include C.F.R. Part appeal rights. Plaintiff also requested assistance in preparing documents and navigating the administrative appeal process. Plaintiff did not submit any petition or other documents to be reviewed as part of the petition process. (Exhibit, and Att. thereto.) The FBA Superintendent responded to Plaintiff s June, 0, by letter dated June, 0. The Superintendent stated that the number of signatures needed for the petition was based on information she received from the TAT s Enrollment Office and that the total number of tribal members was simply divided by / pursuant to Article X of the Constitution. She also stated that the information relayed was from the TAT and pertained to Article X of the Constitution and did not present any information or a decision that was appealable under C.F.R..(c). The Superintendent further invited Plaintiff to submit his petition for review and comment. (Exhibit, and Att. thereto.) By letter dated July, 0, Plaintiff filed his Notice of Appeal to the FBA Superintendent s letter with the Superintendent, with service to the Great Plains Regional Director ( Regional Director ), Timothy LaPointe, and the TAT Chairman, Mark Fox. Attached to the Notice was an unsigned copy of the Superintendent s June, 0, letter. Plaintiff also noted that he would be sending his Statement of Reasons within 0 days. (Exhibit, and Att. thereto.) On August, 0, the Acting Regional Director acknowledged receipt of the Notice of Appeal and requested that Plaintiff submit a signed copy of the letter and a statement of the decision being appealed. Courtesy copies of the Acting Regional Director s letter were sent to the FBA Superintendent and the TAT Chairman. (Exhibit, and Att. thereto.) On August, 0, Plaintiff submitted his Statement of Reasons, which was received at the Great Plains Regional Office on August, 0. Accompanying the Statement of Reasons was a copy of Plaintiff s original request for the number of signatures needed for a valid petition, an unsigned copy of the June, 0, letter from the FBA Superintendent and a statement of service indicating copies of the Statement of Reasons - -

4 Case :-cv-000-ckj Document 0 Filed 0// Page of were sent to the Superintendent, the Regional Director and the TAT Chairman. (Exhibit, 0 and Att. thereto.) On October, 0, the Regional Director responded to Plaintiff s August, 0, submissions. The Regional Director concluded that the FBA Superintendent was simply passing on information from the TAT pursuant to Plaintiff s request and that the information was not a final decision for purposes of appeal, and that in any event, the Superintendent had followed the Part regulations. The Regional Director also stated that whether the Superintendent correctly informed Plaintiff that her statement regarding the required number of signatures to a petition for a Secretarial election was appealable or not, her decision was rendered moot by the Regional Director s decision on Plaintiff s appeal. Plaintiff was also given information on additional appeal rights. (Exhibit, and Att. 0 thereto.) Plaintiff appealed to the Interior Board of Indian Appeals ( IBIA ) on November, 0. (Exhibit, and Att. thereto.) On January, 0, the IBIA issued its Order Docketing and Dismissing Appeal ( Order ). The dismissal was a sua sponte action of the IBIA, and as a result, no administrative record was ever produced by the BIA. In its Order, the IBIA found that the Superintendent s calculation of signatures needed and the Regional Director s affirmation of that calculation did not constitute a final agency action within the meaning of C.F.R... The IBIA dismissed the appeal, finding it lacked jurisdiction because the calculation was not a final agency action. (Exhibit, and Att. thereto.) Importantly, the IBIA noted that BIA s response to Appellant s request for a determination of the number of signatures of tribal members that would be required for a petition to be valid once submitted, see id..(a)(), is an interim action. IBIA. The Board went on to say that Subpart F does not envision BIA making a final decision on whether a petition is valid before a petition is submitted. Id. Finally, the IBIA concluded that [i]t appears doubtful that the Regional Director s interim action regarding the number of required signatures, in the absence of a petition submitted by Appellant and - -

5 Case :-cv-000-ckj Document 0 Filed 0// Page of a decision on the validity of such a petition, has resulted in actual or imminent, concrete and particularized injury to Appellant or that Appellant s arguments could not be raised, in an appropriate forum, as part of a challenge to a decision on the validity of a petition. IBIA. On January, 0, Plaintiff submitted a Motion for Reconsideration to the IBIA. (Exhibit, and Att. thereto.) In its February, 0, Order Denying Reconsideration, the IBIA again clarified that the calculation was merely an interim agency action, not a final agency decision as Plaintiff/Appellant asserted. The Board denied reconsideration because it found Plaintiff/Appellant s motion for reconsideration did not demonstrate extraordinary circumstances and that it remained without jurisdiction. (Exhibit, and Att. thereto.) Plaintiff filed the subject Complaint for Declaratory Relief on April, 0. (Doc..) In his Complaint, Plaintiff seeks: a determination that the Superintendent s calculation is a final agency action, within the meaning of C.F.R..; a review of the Calculation; and a determination that the Superintendent did not act in accordance with C.F.R... Id. Plaintiff contends this Court has jurisdiction pursuant to U.S.C. and the Administrative Procedures Act ( APA ), U.S.C. 0. To date, Plaintiff has not submitted a petition in accordance with C.F.R. Part. (Exhibit,.) II. This Court lacks subject-matter jurisdiction. Federal Rule of Civil Procedure (b)() permits a defendant to move for dismissal of a complaint for lack of subject-matter jurisdiction. A plaintiff who seeks to invoke jurisdiction by filing a complaint in federal court bears the burden of establishing that jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., U.S., (); Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 0 F. d, ( th. Cir..) When a court is presented with a factual challenge to subject matter jurisdiction, a court may evaluate extrinsic evidence and resolve factual disputes when necessary. See Roberts v. Corrothers, F.d, ( th Cir. ) (quoting Augustine v. United States, 0 - -

6 Case :-cv-000-ckj Document 0 Filed 0// Page of F.d 0, 0 ( th Cir. ). In a factual challenge, the plaintiff bears the burden of proving by a preponderance of the evidence that each of the requirements for subjectmatter jurisdiction have been met. Leite v. Crane Co., F.d, ( th Cir. 0) (internal citations omitted). A. There is no waiver of sovereign immunity. It is well settled that the United States, as a sovereign entity, Ais immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court s jurisdiction to entertain that suit.@ Lehman v. Nakshian, U.S., 0 () (quoting United States v. Testan, U.S., ()). Thus, suit against the United States can only be entertained when Congress has specifically waived the United States= immunity. See id. Furthermore, such waiver of sovereign immunity cannot be implied; it must be unequivocally expressed. Franconia Ass. v. United States, U.S., (00). Further, a waiver of the Government s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign. See, e.g., United States v. Williams, U.S., () (When confronted with a purported waiver of the Federal Government s sovereign immunity, the Court will constru[e] ambiguities in favor of immunity. ). In his Complaint, Plaintiff asserts federal question jurisdiction under U.S.C. as the primary basis for jurisdiction. (Doc. at.) The United States has not waived its sovereign immunity by U.S.C. and. See Cuevas v. Department of Homeland Security, No. 0-, F. App x, (th Cir. 00) (citing N. Side Lumber Co. v. Block, F.d, (th Cir. )). Those provisions require an independent waiver of sovereign immunity. See id. Similarly, while Plaintiff has not directly asserted the Declaratory Judgment Act, U.S.C. 0, et. seq., as a basis for jurisdiction, it seems Plaintiff may believe it is applicable in that he has captioned his action as a Complaint for Declaratory Relief. The operation of the Declaratory Judgment Act is procedural only and does not extend the jurisdiction of the federal courts. Skelly Oil Co. v. Phillips Petr. Co., U.S., - -

7 Case :-cv-000-ckj Document 0 Filed 0// Page of (0); Countrywide Home Loans, Inc. v. Mortgage Guar. Ins. Corp., F.d, ( th Cir. 0). Rather it vests a district court with discretion to hear an action which is already within its jurisdiction on a different basis. U.S.C. 0(a). Thus, unless Plaintiff can establish subject matter jurisdiction under another statute, Plaintiff s reliance on the Declaratory Judgment Act must fail. Thus, the only potential basis for jurisdiction is under the Administrative Procedures Act ( APA ), U.S.C B. Lack of finality required by U.S.C 0. Section 0 of the APA only permits judicial review of final agency actions. U.S.C. 0. The finality requirement is considered a necessary element of any APA claim. See Dalton v. Specter, U.S., (); Or. Natural Desert Ass n v. U.S. Forest Serv., F. d, ( th Cir. 00) (party seeking judicial review under APA must challenge a final agency action. ) There are two components to the finality requirement: first, whether the act in question qualifies as an agency action under the APA; and second, whether that action is final. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 0 F. d, (D.C. Cir. 00) ( Whether there has been agency action or final agency action within the meaning of the APA are threshold questions; if these requirements are not met, the action is not reviewable. ) The Supreme Court has stated that an agency action for APA purposes is limited to the set of circumscribed, discrete agency actions delineated in U.S.C. (), which defines action as an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. See Norton v. Southern Utah Wilderness Alliance, U.S., (00). Not everything an agency does constitutes a final agency action reviewable by the courts. Ass n of Admin. Law Judges v. Office of Pers. Mgmt, 0 F. Supp. d, (D.D.C. 00). Even if what is being challenged fits within the definition of agency action found in (), the action must still be final. For an agency action to be final, two elements must be met: ) the action must mark the consummation of the agency s decision making process and cannot be tentative or interlocutory; and ) the - -

8 Case :-cv-000-ckj Document 0 Filed 0// Page of action must be one by which rights or obligations have been determined or from which legal consequences will flow. Bennett v. Spear, 0 U.S., - () (citations omitted). See also Or. Natural Desert Ass n, F. d at (citing Bennett). Certain factors generally provide indicia of finality, including whether the action is a definitive statement of the agency s position and whether the action has direct and immediate effect on day-to-day operations of the party seeking review. See Indus. Customers of Nw. Utils. v. Bonneville Power Admin., 0 F. d, ( th Cir. 00). Decisions that are considered tentative or issued by a subordinate agency are not considered final agency actions. Franklin v. Massachusetts, 0 U.S., (). Similarly, agency reports that serve as tentative recommendations are not considered final, binding determinations. Id. at. Some courts have dismissed an APA claim for lack of subject matter jurisdiction where there was no final agency action to review. See Rattlesnake Coal v. EPA, 0 F. d 0, 0 ( th Cir. 00) ( Absent final agency action, there was no jurisdiction in the district court to review the NEPA claim. ); Invention Submission Corp. v. Rogan, F.d, 0 ( th Cir. 00) (district court lacked subject matter jurisdiction to consider complaint where there was no final agency action); Ukiah Valley Med. Ctr. v. FTC, F.d, n. ( th Cir. 0) ( finality... is a jurisdictional requirement ). As is demonstrated below, throughout his interaction with the BIA, Plaintiff was made aware by BIA that the information provided by the FBA Superintendent was not a final agency action, but rather an interim process by which the BIA conveyed information requested by Plaintiff. May, 0 - the Superintendent informed the Chairman that she received a request for information on the process to initiate a Tribal Member sponsored Petition to amend the Tribe s Constitution (emphasis added). May, 0 - the Superintendent informed Plaintiff of the total number of living adult tribal members, and that consistent with Article X of the Tribe s Constitution,, signatures would be needed for a valid petition, provided the other strict requirements under the Secretarial Election regulations for a valid petition are followed (emphasis added). June, 0 - Plaintiff was aware the FBA Superintendent s letter did not include information regarding appeal rights and requested she re-issue the letter to include those rights. - -

9 Case :-cv-000-ckj Document 0 Filed 0// Page of III. June, 0 - the Superintendent informed Plaintiff that the number of signatures needed for the petition was based on information received from the TAT s Enrollment Office and that the total number was simply divided by / pursuant to Article X of the Constitution. She indicated that the information relayed by the TAT pertained to Article X of the Constitution and did not present any information or a decision that was appealable under C.F.R..(c). The Superintendent further invited Plaintiff to submit his petition for review and comment. On October, 0 - the Regional Director informed Plaintiff that the Superintendent was simply passing on information from the TAT pursuant to Plaintiff s request and that the information was not a final decision for purposes of appeal. The Regional Director also told Plaintiff that whether the Superintendent correctly informed Plaintiff that her statement regarding the required number of signatures to a petition for a Secretarial election was appealable or not, her decision was rendered moot by the Regional Director s decision on Plaintiff s appeal. January, 0 - the IBIA dismissed Plaintiff s appeal finding that the Superintendent s calculation of signatures needed and the Regional Director s affirmation of that calculation did not constitute a final agency action within the meaning of C.F.R... The court noted that BIA s response to Plaintiff s request for a determination of the number of signatures of tribal members that would be required for a petition to be valid once submitted, see id..(a)(), is an interim action. The Board concluded that Subpart F does not envision BIA making a final decision on whether a petition is valid before a petition is submitted and that that [i]t appears doubtful that the Regional Director s interim action regarding the number of required signatures, in the absence of a petition submitted by Plaintiff and a decision on the validity of such a petition, has resulted in actual or imminent, concrete and particularized injury to Appellant or that Appellant s arguments could not be raised, in an appropriate forum, as part of a challenge to a decision on the validity of a petition. February, 0 in its Order Denying Reconsideration, the IBIA again informed Plaintiff that the Superintendent s calculation was merely an interim agency action, not a final agency decision as Plaintiff asserted. Conclusion In their communications with Plaintiff, the BIA made clear that they were simply responding to his request for information on the process to initiate a Tribal Member sponsored Petition to amend the Tribe s Constitution. They even requested Plaintiff provide them his petition for review and comment. Plaintiff, however, never submitted a petition and never submitted signatures. Because the BIA did not (and could not) make a final decision on the validity of the petition before it was submitted, there was no final agency action and this Court lacks subject matter jurisdiction. - -

10 Case :-cv-000-ckj Document 0 Filed 0// Page 0 of Respectfully submitted this th day of July, 0. Copy of the foregoing has been served electronically or by other means this th day of July, 0, to: Raymond Cross E. rd St. Tucson, AZ Plaintiff Pro Per s/mary M. Parker ELIZABETH A. STRANGE First Assistant United States Attorney District of Arizona s/j. Cole Hernandez J. COLE HERNANDEZ Assistant U.S. Attorney - 0 -