United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
action concerns a Notice of Violation issued by the Chairman
of the National Indian Gaming Commission to the Fort Sill
Apache Tribe. In an effort to facilitate settlement, the
parties asked the Court to order a set of agreed-upon actions
the parties would undertake, which the Court duly did.
See 8/17/2016 Order [Dkt. 51] (Order). The Order
went through several amendments at the parties' request.
See 10/4/2016 Order [Dkt. 55] (Amended Order);
10/21/2016 Order [Dkt. 60]. The Tribe is now challenging the
sufficiency of NIGC's actions under the terms of that
order, and has asked the Court to order NIGC to show cause
why it should not be held in contempt. See Pl.'s
Em. Mot. to Enforce the Court's Order [Dkt. 67]. NIGC has
opposed this request, [Dkt. 68], and the Tribe has replied.
[Dkt. 69]. The matter is ripe for the Court's review.
case concerns a set of administrative proceedings involving
the Tribe, NIGC, and the Department of Interior, all of which
relate to a May 15, 2015 Decision issued by NIGC that the
Tribe was not eligible to provide gaming on certain
Tribe-owned lands. One of the complicating issues in this
matter is a prior settlement (the Settlement) between
Interior and the Tribe, and the extent to which the
Settlement affects the Tribe's right to operate a casino
and, by extension, affects NIGC's May 15, 2015
effort to resolve this case through settlement instead of
continued litigation, the parties jointly proposed the
following: (1) the Department of Interior would issue a
letter to the NIGC stating its opinion on the relevancy of
the Settlement on the Tribe's rights to the operation of
a casino, whereupon (2) the NIGC would review its initial
determination in light of Interior's letter. The Court,
as requested, memorialized this agreement in an Order.
See Amended Order.
months of delay, Interior issued its letter to NIGC on
December 9, 2016, with a copy provided to the Court in
camera. On January 12, 2017, NIGC issued a letter to the
Tribe, indicating that the information provided by the
Interior in its letter did not give reason for NIGC to
reconsider its initial determination. See Pl.'s
Mot. Ex. 1 (NIGC Letter).
that NIGC's actions are inadequate, the Tribe has filed
the Motion currently before the Court. The Tribe asserts that
the letter issued by NIGC falls outside the terms of the
parties' agreement as reflected in the Court's order.
See Pl.'s Mot. at 2. Specifically, the Tribe
argues that the letter issued by NIGC is insufficient under
the plain language of the Order, which states that NIGC shall
“reconsider its Decision and Order dated May 5, 2015,
in consideration of the letter to be provided by Interior,
and shall issue a Decision and Order incorporating such
reconsideration.” Amended Order.
letter does not violate the Court's order. The letter
indicates that NIGC reviewed the material provided by
Interior and considered whether that information warranted a
reexamination of NIGC's initial decision. NIGC concluded
that it did not, and informed the Tribe of that fact in the
form of a letter. In doing so, the Court finds that NIGC by
all appearances acted in good faith and in substantial
compliance with the Court's order. See Food Lion,
Inc. v. United Food & Commercial Workers Int'l Union,
AFL-CIO-CLC, 103 F.3d 1007, 1017 (D.C. Cir. 1997)
(“[T]he burden of proving good faith and substantial
compliance is on the party asserting the defense.”)
Given this, the Court denies the Tribe's motion.
the intent of the parties' plan was to promote a
settlement of this dispute, that appears now to have been
unsuccessful. Accordingly, the Court directs the parties to
meet and confer and propose a joint schedule for the next
phase of this litigation.
Motion for an Order to Show Cause [Dkt. 67] will be
DENIED. The parties are ordered meet and
confer and to submit a joint proposed schedule on or before
March 20, 2017. A memorializing order accompanies this
 In their briefs, the parties engage in
a dispute about whether the Tribe's decision to attach
the NIGC's letter to its motion violated Federal Rule of
Evidence 408 protection. The parties misapprehend FRE 408.
“‘FRE 408 limits a document's relevance at
trial, not its disclosure for other purposes.'”
NAACP Legal Def. Fund & Educ. Fund, Inc. v. U.S.
Dep't of Justice, 612 F.Supp. 1143, 1146 (D.D.C.
1985) (quoting Ctr. for Auto Safety v. Dep't of
Justice, 576 F.Supp. 739, 749 (D.D.C. 1983)).
“‘[A] party is not allowed to use Rule 408 as a
screen for curtailing his adversary's right of
discovery.'” In re Subpoena Issued to Commodity
Futures Trading Comm'n, 370 F.Supp.2d 201, 211
(D.D.C. 2005) (quoting 2 Weinstein's Federal ...