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Nakai v. Zinke

United States District Court, District of Columbia

August 23, 2017

RYAN ZINKE, In his Official Capacity as Secretary,, Defendants.


          TANYA S. CHUTKAN United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         In 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, 2015, stating:

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).

         The 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[1], 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. (Id.).

         On 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).

         Nakai's 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.


         A 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).

         An 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).

         However, 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).

         III. ...

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