United States District Court, District of Columbia
S. CHUTKAN United States District Judge
Heather McMillan Nakai brings this pro se suit
against the Department of Interior (“DOI”) and
various DOI employees challenging the Bureau of Indian
Affairs (“BIA”) denial of her application for
Indian Preference. Before the court are Plaintiff's
Motion to Complete the Administrative Record (ECF No. 12),
Defendants' Motion to Dismiss the Complaint and Lawsuit
pursuant to Federal Rule of Civil Procedure 12(b)(1) (ECF No.
13), and Plaintiff's Motion to Strike some of
Defendants' arguments from their reply brief in support
of the motion to dismiss (ECF No. 20). For the reasons stated
below, Defendants' motion to dismiss will be GRANTED and
Plaintiff's motion to complete the record and motion to
strike will be DENIED as moot.
March 2013, Plaintiff requested Verification of Indian
Preference for Employment with the Bureau of Indian Affairs
(“BIA”) and the Indian Health Service under 25
C.F.R. § 5.1, both of which extend hiring preference to
persons of Indian descent, including, among others, (a)
members of recognized Tribes under Federal jurisdiction, (b)
their descendants, and (c) “[a]ll others of one-half or
more Indian blood of tribes indigenous to the United
States.” Plaintiff asserted Croatan and Cherokee
descent. (Compl. ¶¶ 18, 26). On April 19, 2012, the
BIA denied Plaintiff's request, stating that
“Lumbee Indians do not constitute a federally
recognized Tribe; therefore, the Bureau of Indian Affairs
does not have any records of information regarding the Lumbee
Tribe to verify your asserted degree of blood.”
(Id. ¶ 18; Ex. 3). Plaintiff appealed to the
BIA Eastern Regional Director, who denied her appeal,
explaining that “[t]he Lumbee Act precludes the Bureau
from extending any benefits to the Indians of Robeson and
adjoining counties.” (Id. ¶¶ 17, 21;
Ex. 5). Plaintiff appealed that determination to the Interior
Board of Indian Appeals (“IBIA”), arguing that
she was seeking Indian preference not on the basis of her
Lumbee Indian status, but instead on the basis of having
one-half degree or more of Indian blood derived from tribes
indigenous to the United States, including the Cheraw,
Croatan, and Cherokee tribes. (Id. Ex. 6). The Board
affirmed the Regional Director's decision on February 27,
The fact that Appellant does not rely on her membership in
the Lumbee Tribe does not mean that her status as a Lumbee
Indian, which is derived from her ancestry, is irrelevant.
When Congress precluded the applicability to Lumbee Indians
of Federal statutes affecting Indians because of their status
as Indians, it prevented Appellant from obtaining rights that
she might otherwise have obtained as an “Indian”
under Federal law, including “Indian” status for
purposes of Indian preference.
(Id. Ex. 8).
IBIA's denial of Nakai's request was based on the
DOI's long-standing interpretation of the Lumbee Act, 70
Stat. 254 (1956), “as precluding consideration of a
petition from the Lumbee Indians for acknowledgement as an
Indian tribe under the Department's Procedures for
Federal Acknowledgment of Indian Tribes, set forth in 25
C.F.R. Part 83 (‘Part 83').” (Mot. to Dismiss
at 1; Ex. 1-“M-Opinion”). Under the
interpretation of the Lumbee Act at the time of Nakai's
application, Nakai was automatically considered Lumbee
because she is from Robeson County, regardless of her assertion
that she was descended from tribes other than Lumbee Indians.
(Compl. ¶ 22). The aforementioned interpretation of the
Lumbee Act precluded any person of Lumbee descent, or who was
designated as Lumbee Indian under the law, from
seeking Indian preference. (Mot. at 3). Nakai's
application was denied on purely legal grounds, and the
factual evidence of her descent was never considered.
December 22, 2016, the Solicitor of the Interior issued
“Reconsideration of the Lumbee Act of 1956” or
M-37040, the M-Opinion, in which he concluded that the
language that had previously been interpreted to preclude
Lumbee Indians from seeking acknowledgement was actually only
intended by Congress to prevent the Act from being read as,
in and of itself, conferring on Lumbee Indians eligibility
for services and benefits falling within the ambit of federal
Indian statutes. (Id. at 5). Therefore, reading the
Act as precluding a Lumbee Indian from receiving Indian
preference was, the Solicitor found, incorrect. The Solicitor
explicitly referenced Nakai's case, stating that the
IBIA's 2015 decision was inconsistent with Maynor v.
Morton, 510 F.2d 1254 (D.C. Cir. 1975)-in which the D.C.
Circuit found that the Lumbee Act did not require taking away
rights that had already been conferred on the plaintiff,
although he was Lumbee-and was inconsistent with the
Act's legislative history. (Id.). The Solicitor
noted that she was not bound by the IBIA's interpretation
of the Act itself, “and not as it relates to the Part
83 acknowledgment process, ” in Nakai's case, and
concluded that Lumbee Indians “may avail themselves of
the acknowledgment process in 25 C.F.R. Part 83, ” and,
“if their application is successful, they may then be
eligible for the programs, services, and benefits available
to Indians because of their status as Indians.”
(Id. at 18-19).
application was subsequently remanded to the Regional
Director of the BIA and the Indian Health Service for
reconsideration consistent with the Solicitor's
Memorandum. (Defs. Mot.; Ex. 2, “Remand
Memorandum”). The remand memorandum, dated December 28,
2016, directed the Regional Director to “reconsider Ms.
Nakai's request for Verification of Indian Preference for
Employment in the Bureau of Indian Affairs and the Indian
Health Service, in particular, whether Ms. Nakai qualifies
for Indian preference pursuant to 25 C.F.R. § 5.1(c),
notwithstanding her status as a Lumbee Indian and her descent
(in whole or in part) from the Indians who were designated as
‘Lumbee Indians' by the Lumbee Act.”
(Id.). On the same date, Defendants moved to dismiss
this case based on mootness. Plaintiff argues that her
complaint is not moot and that “Defendants' alleged
reconsideration is pretext that allows the Defendants to
escape liability for their unlawful action without providing
[Plaintiff] with relief.” (Opp'n. at 1). She also
moves to strike arguments made by the DOI on Reply.
motion to dismiss for mootness is properly brought under
Federal Rule of Civil Procedure 12(b)(1), which requires that
a court establish subject matter jurisdiction before hearing
a case. See Young v. D.C. Hous. Auth., 31 F.Supp.3d
90, 94 (D.D.C. 2014). The Rule imposes “an affirmative
obligation to ensure that it is acting within the scope of
its jurisdictional authority.” Id. at 94-94
(quoting Jones v. Ashcroft, 321 F.Supp.2d 1, 5
(D.D.C. 2004)). Mootness carries jurisdictional significance,
as the “case or controversy” requirement of
Article III restricts courts to adjudicating “actual,
ongoing controversies.” Honig v. Doe, 484 U.S.
305, 317 (1988).
actual controversy may become moot if some intervening event
ends the controversy, such that “the issues presented
are no longer ‘live.'” Larsen v. U.S.
Navy, 525 F.3d 1, 3-4 (D.C. Cir. 2008) (quoting
Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979)).
If events have so transpired that the original controversy is
no longer active, then the court's jurisdiction is
eliminated, because “there is nothing for [the court]
to remedy, even if [it] were disposed to do so.”
Spencer v. Kemma, 523 U.S. 1, 18 (1998).
when the intervening event that ends the case is the
defendant voluntarily changing its challenged conduct, the
case is not automatically considered moot. See Cnty of
L.A., 440 U.S. at 631. Otherwise, “a defendant
could engage in unlawful conduct, stop when sued to have the
case declared moot, then pick up where he left off, repeating
this cycle until he achieves his unlawful ends.”
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013).
Although the “actual, ongoing controversy”
standard identified in Honig, 484 U.S. at 317, is
generally sufficient for determining whether a case is moot,
“the standard . . . for determining whether a case has
been mooted by the defendant's voluntary conduct is
stringent.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 170 (2000). If the
party claiming mootness can demonstrate that (1) “there
is no reasonable expectation” that the challenged
activity will reoccur, United States v. W. T. Grant
Co., 345 U.S. 629, 632 (1953), and (2) and interim
events completely eradicate the effects of the alleged
violation, then the court may find that the case is moot.
See, e.g., Doe v. Harris, 696 F.2d 109, 111
(D.C. Cir. 1982) (citing Cnty. of L.A. v. Davis, 440
U.S. at 631).