The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Asserting that they are "mixed-blood" members of the Ute Band of Indians, the plaintiffs filed this action in 2002 against the Secretary*fn1 of the Department of the Interior ("DOI"), the Assistant Secretary for Indian Affairs of the DOI, the United States of America, and two employees of the Bureau of Indian Affairs for injuries suffered as a result of the defendants' alleged wrongful termination under the Ute Partition and Termination Act ("UPA"), 25 U.S.C. §§ 677 et seq., of plaintiffs' status as federally recognized Indians. Defendants move to dismiss plaintiffs' claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, arguing that the Department of the Interior and Related Agencies Appropriations Act, 2004, Pub. L. No. 108-108, 117 Stat. 1241 (2003) ("P.L. 108-108"), did not revive plaintiffs' claims for which the limitations period had expired, and that prior judgments preclude the plaintiffs' claim for an accounting. Although P.L. 108-108 does apply retroactively to claims of trust mismanagement in litigation pending at the time of its enactment, the plaintiffs are collaterally estopped from arguing that they are entitled to an accounting due to the defendants' mismanagement of trust assets because prior litigation to which the plaintiffs are bound resolved that the UPA terminated the government's trust obligations. Thus, the defendants' motion to dismiss will be granted.
The background of this case is fully discussed in Felter v. Norton, 412 F. Supp. 2d 118 (D.D.C. 2006) and Felter v. Kempthorne, 473 F.3d 1255, 1257-59 (D.C. Cir. 2007). Briefly, the plaintiffs allege that their federal status as recognized Ute Indians was unlawfully terminated by the UPA. In 1954, the Ute Tribe's General Council voted to categorize members of the tribe as either "full-bloods" or "mixed-bloods" and to separate the assets of the two groups. In response to the vote, Congress passed the UPA, under which full-bloods were defined as Ute members whose ancestry was at least one-half Ute Indian and over one-half Indian. 25 U.S.C. § 677a(b). Mixed-bloods were defined as Ute members who did not have sufficient Ute or Indian ancestry to qualify as full-bloods. 25 U.S.C. § 677a(c). The UPA formally distributed the reservation's assets between the mixed-bloods and the full-bloods, terminated the mixed-bloods' rights to a $32,000,000 Indian Claims Commission ("ICC") judgment because the mixed-bloods were no longer considered members of the Ute Tribe after the UPA, and terminated the mixed-bloods' status as federally recognized Indians. As required by the UPA, the Secretary of the Interior then published in the Federal Register the list of the 490 mixed-bloods, 21 Fed. Reg. 2208-04, and the corresponding federal policy of terminating supervision over the affairs of the mixed-bloods and their status as federally recognized Indians, effective as of August 27, 1961. 26 Fed. Reg. 8042-03.
Plaintiffs' complaint seeks a judgment declaring that the 1961 list of the 490 mixed-bloods unlawfully terminated their status as recognized Ute Indians and is void; restoring their rights retroactively to their reservation assets wrongfully distributed under the UPA; restoring to their status as Uinta Indians the Uinta who were minors in 1961 and not listed among the 490; awarding the 490 damages for their loss of status as Indians under the UPA, for breach of trust and for the violation of the due process clause of the Fifth Amendment; and ordering an accounting of the $32,000,000 ICC judgment allocated to the Colorado bands of Ute Indians. (Am. Compl. 61-64.) Earlier, the defendants' motion to dismiss all claims was granted because the plaintiffs did not allege any acts that the defendants committed within the six-year statute of limitations period under 28 U.S.C. § 2401(a), and failed to justify the application of any exception to allow them to file this action outside the limitations period. Felter, 412 F. Supp. 2d at 125-27.
On appeal, the plaintiffs raised a new issue, arguing that P.L. 108-108 "preserve[d] [their] claims." Felter, 473 F.3d at 1260. The D.C. Circuit agreed that the plaintiffs' claims had accrued in the 1950s and 1960s, that there were no continuous violations that made the complaint timely filed, and that equitable tolling of the statute of limitations did not apply. However, the court remanded the case "to determine whether [P.L.] 108-108 applies to any of Felter's claims." Id. at 1259-61.
On remand, the defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6), arguing that P.L. 108-108 does not apply to Count 8,*fn2 a claim for an accounting, because the plaintiffs' expired claim was not revived. (Defs.' Mem. of P. & A. in Supp. of Defs.' Renewed Mot. to Dis. ("Defs.' Renewed Mem.") at 5, 8, 10.) The defendants also argue that even if P.L. 108-108 revived the plaintiffs' claim, it would still be barred by collateral estoppel because Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972), resolved that the UPA terminated the Secretary of the Interior's responsibility over divisible tribal assets, including the mixed-blood's share of the ICC judgment. (Defs.' Renewed Mem. at 12 n.8; Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. to Dis. at 14.) The plaintiffs oppose the defendants' renewed motion to dismiss, arguing that P.L. 108-108 revives their accounting claim and that they are not collaterally estopped from bringing the claim. (Pls.' Opp'n to Defs.' Renewed Mot. to Dis. at 20; Pls.' Suppl. Mem. in Opp'n to Defs.' Mot. to Dis. at 9-15.)
Whether the statute of limitations expired for the plaintiffs' claim for an accounting should be analyzed under Rule 12(b)(6) for failure to state a claim. See Felter, 412 F. Supp. 2d at 124. The affirmative defense of collateral estoppel may also be raised in a Rule 12(b)(6) motion to dismiss when "the defense can either be established from the face of the complaint, matters fairly incorporated within it, and matters susceptible to judicial notice." Mitchell v. United States, Civ. Action No. 05-916 (RWR), 2007 WL 148781, at *2 n.2 (D.D.C. Jan. 16, 2007). "A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. . . ." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the complaint must be construed in the light most favorable to the plaintiff and "the court must assume the truth of all well-pleaded allegations." Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
I. REVIVAL OF CLAIM UNDER P.L. 108-108
Congress included in P.L. 108-108 a provision which stated that notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.
Pub. L. No. 108-108, 117 Stat. 1241, 1263. Passed in 2003 while this litigation was pending, this trust fund provision serves to stop the statute of limitations period from beginning to run on claims involving losses or mismanagement of Indian trust funds until an accounting has been provided. The defendants argue, however, that this provision in P.L. 108-108 does not apply retroactively to revive a claim for which the statute of limitations has already expired.
To determine whether a statute applies retroactively, a court "first look[s] for an express command regarding the temporal reach of the statute, . . . or, in the absence of language as helpful as that, determine[s] whether a comparably firm conclusion can be reached upon the basis of the normal rules of [statutory] construction." Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (internal quotation marks and citations omitted); see also Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006)); Martin v. Hadix, 527 U.S. 343, 354 (1999) (stating that a court looks for an unambiguous directive that the statute should be applied retroactively). "[C]ases where [the Supreme] Court has found truly 'retroactive' [applicability] adequately authorized by statute have involved statutory language that was so clear that it could sustain only one interpretation.'" INS v. St. Cyr, 533 U.S. 289, 316-17 (2001) (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)). Next, if the statute contains no such express command and a firm conclusion cannot be otherwise reached, the court must determine "whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Republic of Austria v. Altmann, 541 U.S. 677, 694 (2004) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). Finally, if the statute has a retroactive effect, a court then looks to whether the general "presumption against retroactive legislation [that] is deeply rooted in our jurisprudence," id. at 265, is overcome because "Congress has clearly manifested its intent to the contrary." Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 946 (1997). "The 'principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.'" Id. at 946 (quoting Landgraf, 511 U.S. at 265). "'Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.'" AT&T Corp. v. Hulteen, 129 S.Ct. 1962, 1971 (2009) (quoting Landgraf, 511 U.S. at 272-73). Legislative history can be considered when assessing Congress' intention regarding retroactivity. Lytes, 572 F.3d at 939-40 ("If applying the statute would have such a disfavored effect, then we do not apply it absent clear evidence in the legislative history that the Congress intended retroactive application.").
The defendants argue that Congress did not prescribe that the trust fund provision apply retroactively to revive a time-barred claim, relying on Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998). Cobell interpreted an earlier version of the Indian trust fund provision which did not contain the language "including any claim in litigation pending on the date of the enactment of this Act."*fn3 Cobell determined that the phrase "shall not commence to run" prevented the statute of limitations clock from commencing, but concluded that that version of the Indian trust fund provision "was [never] intended to do more than its name suggests. In other words, the provision only tolls a clock that has not commenced running. It ...