The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
The fundamental question in this lawsuit is whether the Department of the Interior's ("DOI") Bureau of Indian Affairs ("BIA") legitimately declared that a management contract between Plaintiff GasPlus, L.L.C. and the Nambe Pueblo Indian Tribe was never legally valid. Presently pending before the Court is Defendants' motion to dismiss the individual Defendants - Robert D. Baracker, BIA's former Southwest Regional Director, and Aurene M. Martin, DOI's former Acting Assistant Secretary for Indian Affairs - who, respectively, declared the contract invalid and upheld that decision on appeal and who, in so doing, allegedly violated GasPlus's due process rights. In the face of these Defendants' motion to dismiss, GasPlus acknowledges that the Court does not have personal jurisdiction over Mr. Baracker. The complaint against him will therefore be dismissed without prejudice. The Court also concludes that Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), does not provide a basis for the suit against Ms. Martin because other avenues of relief are available to GasPlus. Thus, the complaint against her will also be dismissed.
Under former New Mexico law, bulk distributors of gasoline could avoid the state's excise tax by selling their gasoline to a Registered Indian Tribal Distributor and then buying the gasoline back at a slightly higher price. Third Am. Compl. ¶ 12. This feature of the tax law provided New Mexico's Indian tribes with an obvious business opportunity. In February 2001, Nambe Pueblo entered into a Management Agreement with GasPlus in which they agreed that GasPlus would manage just such a gas distribution business for the tribe. Id. ¶ 14; Pl.'s Resp. to Def.'s Mot. to Dismiss ("Pl.'s Resp.") at p. 2. The business was officially owned by the Nambe Pueblo Development Corporation ("NPDC"), a federally chartered tribal business corporation. Third Am. Compl. ¶¶ 12-13. The Management Agreement was reached at a time when the NPDC did not have a Board of Directors, so it was approved and executed by the Nambe Pueblo Tribe itself, the sole shareholder of NPDC. Id. ¶ 15. Approximately one year later, the Nambe Pueblo's new Governor, Tom Talache, Jr., requested that the BIA declare the Management Agreement invalid and void on the grounds that it had not been approved by the Secretary of the Interior pursuant to 25 U.S.C. § 81. Id.¶ 19. That section of the law provides: "No agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that contract or agreement bears the approval of the Secretary" or her designee. 25 U.S.C. § 81(b).
On February 7, 2002, BIA's Regional Director, Mr. Baracker, declared the Management Agreement legally invalid allegedly without notice to, or consultation with, GasPlus. Third Am. Compl. ¶ 21. Mr. Baracker then sent a Decision Letter to GasPlus ordering it to "vacate the premises of [NPDC] terminal facility immediately" and to "return all petty cash at the terminal, keys to the premises, and other items that would give GASPLUS employees access or control over the premises or facilities." Pl.'s Resp. at 2.*fn1 The Decision Letter further ordered that "GASPLUS must return all proceeds of the gas distribution business generated under this agreement" and to "repay the NPDC any monies taken in management fees during the past year." Id. The decision was stated to be "final and hereby made immediately effective under 25 C.F.R. § 2.6(a) in order to protect the tribal trust resources." Id. In reliance on the Decision Letter, the Nambe Pueblo issued an Ex Parte Custody and Temporary Restraining Order on February 11, 2002, to obtain custody of any records developed by GasPlus relating to the Management Agreement and to prevent GasPlus from removing any funds from its bank accounts. Id. at 3.
On February 21, 2002, Mr. Baracker advised GasPlus that - contrary to the draconian terms of the Decision Letter - his "February 7 decision was not immediately effective and that the administrative appeal provisions of 25 C.F.R. Section 2 apply to Section 81 determinations." Id. at 2-3. GasPlus immediately appealed the Decision Letter, but Ms. Martin affirmed Mr. Baracker's conclusions in all respects, including Mr. Baracker's order that GasPlus "vacat[e] the premises, transfer[ ] the books and records of the business to the Pueblo or NPDC, and return[ ] all proceeds and management fees to the Pueblo or NPDC." Id. at 3.
Three months after Ms. Martin's decision, GasPlus filed this lawsuit against DOI seeking review of her decision under the Administrative Procedures Act, 5 U.S.C. §§ 701-706 ("APA"). GasPlus eventually amended the complaint to add Mr. Baracker and Ms. Martin as individual defendants on the theory that their decisions had violated GasPlus's constitutional right to due process of law. Third Am. Compl. ¶¶ 53-57. A motion to dismiss Mr. Baracker and Ms. Martin has now been fully briefed.
Under D.C.'s long-arm statute, the Court may exercise personal jurisdiction over a person as to a claim for relief arising from the person's (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C. Code § 13-423(a). "This provision is given an expansive interpretation that is coextensive with the due process clause." Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (internal quotation omitted). Thus, "the statutory and constitutional jurisdictional questions, which are usually distinct, merge into a single inquiry." United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995).
Under the due process clause, Defendants are subject to personal jurisdiction in this Court if they purposefully established "minimum contacts with [the District of Columbia] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). These minimum contacts must be grounded in "some act by which the defendant purposefully avails itself of the privilege of conducting activities with the forum state, thus invoking the benefits and protections of its laws." Asahi Metal Indus. v. Super. Ct. of Cal., 480 U.S. 102, 109 (1988). In short, "the defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
The plaintiff "carr[ies] the burden of establishing a factual basis for the Court's exercise of personal jurisdiction over the defendants." Murphy v. PriceWaterhouseCoopers LLP, 357 F. Supp. 2d 230, 242 (D.D.C. 2004). "[T]he general rule is that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts." First Chicago Int'l v. United Exchange Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. The court must treat the complaint's factual allegations - including mixed questions of law and fact - as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). The court need not, however, accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).In deciding a 12(b)(6) motion, the Court may typically 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." Chao, 226 F. Supp. 2d at 196 (citation ...