MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Plaintiffs
allege that they are Native Americans who have been illegally
stripped of their tribal membership by their Tribe, the
Saginaw Chippewa Indian Tribe of Michigan, in violation of
the Judgment Funds Act (“JFA”). Compl., ECF No.
1, ¶¶ 1-3. Plaintiffs petitioned Defendants to
enforce the JFA and to reestablish their tribal membership.
Id. at ¶ 6. After Defendants failed to
adequately respond, Plaintiffs brought this action to compel
Defendants to respond to Plaintiffs' petition and to
enforce the requirements of the JFA. Defendants have moved
for dismissal of Plaintiffs' Complaint, arguing that
Plaintiffs failed to exhaust their administrative remedies.
Upon
consideration of the pleadings, [1] the relevant legal
authorities, and the record as a whole, the Court GRANTS
Defendants' motion. The Court concludes that
Plaintiffs' Complaint fails to state a claim because,
absent the completion of the administrative appeal process,
Defendants' inaction does not constitute a final agency
action subject to judicial review under the Administrative
Procedures Act (“APA”). 5 U.S.C. § 704
(requiring “final agency action” prior to
judicial review).
I.
BACKGROUND
For the
purposes of the motion before the Court, the Court accepts as
true the well-pleaded allegations in Plaintiffs'
Complaint. The Court does “not accept as true, however,
the [P]laintiffs['] legal conclusions or inferences that
are unsupported by the facts alleged.” Ralls Corp.
v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315
(D.C. Cir. 2014).
Plaintiffs
allege that they were unlawfully disenrolled from membership
in the Saginaw Chippewa Indian Tribe of Michigan (“the
Tribe”) in violation of the JFA. Compl., ECF No. 1,
¶ 60. The JFA was passed by Congress in 1986.
Id. at ¶ 39. As is relevant here, the Act
required the Tribe to eliminate reservation residency
requirements for membership and to open enrollment for an
eighteen-month period to allow a certain segment of Native
Americans to become official members of the Tribe.
Id. at ¶ 40. Plaintiffs are among those who
properly applied for, and received membership in, the Tribe
during the JFA's open enrollment period. Id. at
¶ 47. But, beginning in 2011 and culminating in 2015,
Plaintiffs contend that the Tribe's leadership initiated
a series of proceedings disenrolling those individuals whose
tribal membership had been mandated by the JFA. Id.
at ¶ 58.
Under
the JFA, the Secretary of the Interior is tasked with
enforcing the requirements of the JFA when tribal leadership
fails to perform in accordance with the Act. Id. at
¶ 71 (citing Pub. L. No. 99-346, 100 Stat 674 §
5(b)(2) (1986)). In 2015, Plaintiffs allege that their
counsel contacted Bureau of Indian Affairs
(“BIA”) officials and urged them to enforce the
JFA and to compel the Tribe to cease its disenrollment
proceedings. Id. at ¶ 61. Plaintiffs contend
that the BIA did not take action in response to their
request. Id. at ¶ 62. To force a response, in
2016, Plaintiffs claim that they filed a formal petition with
the Department of the Interior (“DOI”) asking
agency officials, including those at the BIA, to enforce the
JFA and to compel the Tribe to cease its unlawful
disenrollment proceedings. Id. at ¶ 63.
Following their formal petition, Plaintiffs allege that they
have repeatedly communicated with DOI officials, including
Defendants, in an effort to force a response to their
petition. Id. at ¶ 64. Despite these efforts,
Plaintiffs contend that Defendants have taken no action on
their petition. Id. Plaintiffs claim that
Defendants' failure to enforce the JFA and to compel the
Tribe to reenroll Plaintiffs has caused Plaintiffs stigmatic
injuries by denying them their Tribal identity as well as
financial injuries by denying them Tribal resources.
Id. at ¶ 65.
In
response to Defendants' alleged inaction, Plaintiffs now
bring this case under the APA to compel Defendants to respond
to Plaintiffs' petition and to enforce the JFA. In
response, Defendants have filed a motion to dismiss
Plaintiffs' Complaint, arguing that judicial review is
not appropriate under the APA as Defendants never reached a
final agency action because Plaintiffs failed to exhaust the
administrative appeal process.
II.
LEGAL STANDARD
Plaintiffs'
cause of action arises under Section 702 of the APA which
allows individuals who have been harmed by an agency action
to challenge that agency action in court. 5 U.S.C. §
702. However, in order to challenge an agency action under
the APA, that agency action must be a “final agency
action.” Id. at § 704. Defendants contend
that Plaintiffs do not have a “final agency
action” to challenge and ask this Court to dismiss
Plaintiffs' Complaint.
Defendants
ask this Court to dismiss Plaintiffs' Complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) based
on Plaintiffs' failure to administratively exhaust their
claim. Under Rule 12(b)(1), a Court must dismiss a
plaintiff's complaint if the court lacks subject-matter
jurisdiction. Fed. R. Civ. Pro. 12(b)(1). And, under Rule
12(b)(6), a Court must dismiss a plaintiff's complaint if
the plaintiff fails “to state a claim upon which relief
can be granted.” Id. at 12(b)(6). For the
reasons given below, the Court concludes that Defendants'
motion to dismiss for exhaustion is properly treated as a
motion to dismiss for failure to state a claim under Rule
12(b)(6).
Defendants'
motion is best dealt with under Rule 12(b)(6) because the
United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has clarified that
“the APA's final agency action requirement is not
jurisdictional.” Trudeau v. Fed. Trade
Comm'n, 456 F.3d 178, 184 (D.C. Cir. 2006); see
also M2Z Networks, Inc. v. Fed. Commc'n Comm'n,
558 F.3d 554, 558 (D.C. Cir. 2009) (“The Administrative
Procedure Act (APA) does not pose a barrier to jurisdiction
because judicial exhaustion requirements under the APA are
prudential only.”). Because the APA's requirement
of a final agency action is not jurisdictional, even if
Plaintiffs failed to exhaust their administrative remedies,
this Court would still have subject matter jurisdiction over
Plaintiffs' claim. Accordingly, Rule 12(b)(1) is
inapplicable, and the Court will evaluate Defendants'
motion to dismiss under Rule 12(b)(6).
Rule
12(b)(6) provides that a party may challenge the sufficiency
of a complaint on the grounds it “fail[s] to state a
claim upon which relief can be granted.” Fed. R. Civ.
Pro. 12(b)(6). When evaluating a motion to dismiss for
failure to state a claim, the district court must accept as
true the well-pleaded factual allegations contained in the
complaint. Atherton v. D.C. Off. of Mayor, 567 F.3d
672, 681 (D.C. Cir. 2009), cert. denied, 559 U.S.
1039 (2010). “[A] complaint [does not] suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
Failure
to exhaust administrative remedies is an affirmative defense
which the defendant bears the burden of pleading and proving.
See Mondy v. Sec'y of the Army, 845 F.2d 1051,
1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring);
see also Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997) (“Because untimely exhaustion of
administrative remedies is an affirmative defense, the
defendant bears the burden of pleading and proving
it.”). If the defendant meets that burden, the
plaintiff bears the burden of pleading and proving the
equitable avoidance of that affirmative defense. See
Bowden, 106 F.3d at 437.
III.
EXHAUSTION OF PLAINTIFFS' ...