United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.
Burt Lake Band of Ottawa and Chippewa Indians (formerly known
as the Cheboygan Band) describes itself as “the last
‘landless' tribe in Michigan.” Am. Compl.
[Dkt. # 11] ¶ 11. This case arises out of the fact that
plaintiff has been seeking formal federal recognition, which
would give the Burt Lake Band (or “the Band”) a
number of rights and benefits, since at least 1935. Plaintiff
has brought this action against Ryan Zinke, in his official
capacity as Secretary of the Interior; John Tahsuda III in
his official capacity as the Acting Assistant Secretary for
Indian Affairs for the Department of the
Interior; and the United States Department of
Interior (“DOI”), alleging violations of the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 500 et seq., the Due Process Clause and the
Equal Protection Clause of the Fifth Amendment of the United
States Constitution, and the Federally Recognized Indian
Tribe List Act, 25 U.S.C § 5130 et seq., in
connection with two events: the agency's failure to issue
a decision on a petition for recognition that was filed in
1935, and the agency's 2015 promulgation of regulations
which preclude the Band from re-petitioning the agency for
recognition under 25 C.F.R. § 83. The defendants have
moved to dismiss all of the claims, and for the reasons that
follow, the Court will grant the motion in part and deny it
in part: the Court will dismiss Counts II and III because
they are barred by the statute of limitations; it will deny
the motion to dismiss Counts IV, V, and VI because plaintiff
does have standing to bring them; and it will dismiss Count
VII for failure to state a claim on which relief can be
granted. Plaintiff has withdrawn Count I.
complaint sets out a rather remarkable and undisputed history
of inaction. In 1935, a group of the Band's ancestors
petitioned the Bureau of Indian Affairs (“BIA”)
within the Department of Interior to be recognized under the
Indian Reorganization Act of 1934. Am. Compl. ¶ 13. The
agency has never issued a final decision on the 1935
Petition. Id. ¶¶ 74-85. In 1985, the Band
filed another petition. Id. ¶ 99. The 1985
petition went unanswered for more than 20 years, until it was
denied in 2006. Id. ¶ 107. Plaintiff did not
seek review of the 2006 decision.
2014, the Bureau of Indian Affairs initiated a rulemaking to
reform the federal recognition process, and it solicited
comments on a proposed rule that would revise the existing
regulations. Fed. Acknowledgment of Am. Indian Tribes, 79
Fed. Reg. 30766 (proposed May 29, 2014) (to be codified at 25
C.F.R. pt. 83) (“Proposed Rule”). One of the
provisions in the proposal sent out for notice and comment,
would have allowed Tribes to re-petition the agency for
recognition under certain circumstances. Id.
Ultimately, the agency chose not to adopt that provision,
stating that “allowing for re-petitioning by denied
petitioners would be unfair to petitioners who have not yet
had a review, ” and identifying other efficiency
concerns. Fed. Acknowledgment of Am. Indian Tribes, 80 Fed.
Reg. 37862, 37875 (July 1, 2015) (to be codified at 25 C.F.R.
pt 83) (“2015 Regulations”).
filed this lawsuit on January 9, 2017, Compl. [Dkt. # 1], and
filed an amended complaint on June 1, 2107. Am. Compl. The
amended complaint includes seven constitutional and statutory
claims. Counts I, II, and III challenge the agency's
failure to issue a final decision on the 1935 Petition under
the APA, the Due Process Clause, and the Equal Protection
Clause of the 5th Amendment. Counts IV, V, and VI challenge
the agency's 2015 Regulations under the APA, the Due
Process Clause, and the Equal Protection Clause. The final
count, Count VII, invokes the Federally Recognized Indian
Tribe List Act and demands that the Court order the Secretary
to place the Band on the List. Based on these claims,
plaintiff seeks the following relief:
1) An order directing the agency “to adjudicate the
1935 IRA Petition;”
2) A declaration that the 2015 Regulations are
“unlawful, unconstitutional, and unenforceable;”
3) An order directing the agency to “consider and
adjudicate a supplemental petition from the Band for
4) An order directing the agency to place plaintiff on the
“Federally Recognized Indian Tribe List;” and
5) Other “relief as the Court deems just, proper, and
Am. Compl. “Prayer for Relief” ¶¶ 1-5.
moved to dismiss Counts I-III on statute of limitation
grounds, Counts IV-VI for lack of standing, and Count VII for
failure to state a claim upon which relief can be granted.
Defs.' Mot. to Dismiss [Dkt. # 13]; Defs.' Mem. of P.
& A. in Supp. of Mot. to Dismiss [Dkt. # 13]
(collectively, “Defs.' Mot.”) at 2. Plaintiff
withdrew Count I, agreeing that the APA does not apply
retroactively, but it has otherwise opposed the motion.
Pl.'s Opp. to Defs.' Mot. [Dkt. # 14]
(“Pl.'s Opp.”) at 3. Defendants filed a
reply. Reply Brief in Supp. of Defs.' Mot. [Dkt. # 15].
evaluating a motion to dismiss under either Rule 12(b)(1) or
12(b)(6), the Court must “treat the complaint's
factual allegations as true . . . and must grant plaintiff
‘the benefit of all inferences that can be derived from
the facts alleged.'” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000),
quoting Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979) (citations omitted). Nevertheless, the Court
need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint,
nor must the Court accept plaintiff's legal conclusions.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
Subject Matter Jurisdiction under Rule 12(b)(1)
Rule of Civil Procedure 12(b)(1) provides for dismissal of a
claim for lack of subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). The plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d
59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that “a cause lies
outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C. Cir. 2004) (“As a court of limited jurisdiction,
we begin, and end, with an examination of our
jurisdiction.”). “[B]ecause subject-matter
jurisdiction is ‘an Art[icle] III as well as a
statutory requirement . . . no action of the parties can
confer subject-matter jurisdiction upon a federal
court.'” Akinseye v. District of Columbia,
339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of
Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982).
considering a motion to dismiss for lack of jurisdiction,
unlike when deciding a motion to dismiss under Rule 12(b)(6),
the court “is not limited to the allegations of the
complaint.” Hohri v. United States, 782 F.2d
227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Rather, “a court may consider such
materials outside the pleadings as it deems appropriate to
resolve the question [of] whether it has jurisdiction to hear
the case.” Scolaro v. D.C. Bd. of Elections &
Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992); see also Jerome Stevens Pharms.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Failure to State a Claim under Rule 12(b)(6)
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In Iqbal, the Supreme Court
reiterated the two principles underlying its decision in
Twombly. “First, the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions, ” and
“[s]econd, only a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id. at 678-79, citing Twombly, 550 U.S. at
is facially plausible when the pleaded factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678, citing Twombly, 550 U.S. at
556. “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id., quoting Twombly,
550 U.S. at 556. A pleading must offer more than
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action, ”
id., quoting Twombly, 550 U.S. at 555, and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id., citing Twombly, 550
U.S. at 555.
considering a motion to dismiss under Rule 12(b)(6), the
Court is bound to construe a complaint liberally in the
plaintiffs favor, and it should grant the plaintiff
“the benefit of all inferences that can be derived from
the facts alleged.” Kowal v. MCI Commc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Nevertheless, the Court need not accept inferences drawn by
the plaintiff if those inferences are unsupported by facts
alleged in the complaint, nor must the Court accept
plaintiffs' legal conclusions. See id.; see also
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
In ruling upon a motion to dismiss for failure to state a
claim, a court may ordinarily 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.”
Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196
(D.D.C. 2002), citing EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).
The Court lacks subject matter jurisdiction over Counts II
Counts II and III, plaintiff alleges that it was injured by
defendants' failure to issue a formal denial of the 1935
Petition for recognition. Am. Compl. ¶¶ 170, 173.
It contends that this is a violation of its constitutional
rights under the Due Process Clause and the Equal Protection
Clause of the Fifth Amendment. Id. ¶¶
move to dismiss these counts for lack of subject matter
jurisdiction under Rule 12(b)(1) on the grounds that the
claims are barred by the statute of limitations. Defs.'
Mot. at 13- 17. They invoke 28 U.S.C. § 2401(a), which
provides that “every civil action commenced against the
United States shall be barred unless the complaint is filed
within six ...