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PARKER v. NORTON

United States District Court, D. Columbia


November 16, 2005.

JOHN WILLIAM PARKER, et al., Plaintiffs,
v.
GALE A. NORTON, et al., Defendants.

The opinion of the court was delivered by: ELLEN HUVELLE, District Judge

MEMORANDUM OPINION

In this action, three residents of the White Earth Indian Reservation and enrollees of the White Earth Band of the Minnesota Chippewa Tribe ("the Tribe"), challenge the Department of Interior's decision of September 20, 1994, approving the establishment of a tribal court over child custody proceedings by a band of the Tribe. Defendants move pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings on the grounds that the Court lacks subject matter jurisdiction, plaintiffs lack standing, and the claim is barred by the statute of limitations. Because it is clear from the complaint that the claim is barred by the statute of limitations, the motion will be granted solely on this ground.*fn1

The complaint alleges the following. In 1980, a constituent band of the Tribe petitioned to assume jurisdiction over child custody matters under Section 108 of the Indian Child Welfare Act of 1978, 25 U.S.C. § 1918 et seq.*fn2 By memorandum dated September 30, 1980, the Associate Solicitor-Indian Affairs for the Department of the Interior advised the Assistant Secretary that the Tribe's revised constitution did not authorize bands to exercise child custody jurisdiction. This position was reaffirmed in 1986 and 1990, but was reversed in 1994. By letter dated September 20, 1994, the Assistant Secretary informed the Tribe that upon review of the Solicitor's prior opinions, and giving deference to the Tribe's interpretation of its constitution, a constitutional amendment was not needed for bands to establish tribal courts. Plaintiffs claim that this decision is reviewable under the Administrative Procedure Act ("APA") as arbitrary and capricious. Complaint ¶ 5.

  "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. This includes APA actions. Impro Prods., Inc. v. Block, 722 F.2d 845, 850 (D.C. Cir. 1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Citizens Alert Regarding the Environment v. U.S.E.P.A. 259 F. Supp.2d 9, 25 (D.D.C. 2003). Plaintiffs assert that the action is timely because the 1994 decision "is still be[ing] used to pass resolutions regarding the courts and law enforcement."*fn3 Complaint ¶ 36. The APA, however, authorizes judicial review only of "final agency action." 5 U.S.C. § 704. It does not provide a cause of action based on the continuing effects of such action. Cf., e.g., Impro Prods., Inc. v. Block, 722 F.2d at 850, n. 9 (the reissuance of a reprint did not "start the statute of limitations anew [where there was] no evidence suggesting that a conscious, independent decision was made with any subsequent reissuance."). Plaintiffs' action filed on May 27, 2005, nearly eleven years after the agency's decision, clearly is time-barred.*fn4 A separate Order accompanies this Memorandum Opinion.

20051116

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