Alegre v. United States

CINDY ALEGRE, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.

Case No.: 16-cv-2442-AJB-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

August 12, 2020

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

(Doc. No. 110)

Presently before the Court is Defendants United States of America, Department of the Interior, and Individual Defendants Michael Black, Weldon Loudermilk, Amy Dutschke, and Javin Moore's (sued in their official capacities) (collectively, "Federal Defendants") motion to dismiss for lack of jurisdiction Plaintiffs' third cause of action in Plaintiffs' Fourth Amended Complaint. (Doc. No. 110.) The Court held a hearing on Federal Defendants' motion on January 9, 2020. (Doc. No. 120.) For the reasons set forth below, the Court GRANTS Federal Defendants' motion to dismiss, and DISMISSES Plaintiffs' third cause of action from the Fourth Amended Complaint WITHOUT LEAVE TO AMEND.

I. BACKGROUND

The following facts are taken from the Fourth Amended Complaint and construed as true for the limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). The facts of this case have been thoroughly detailed in previous documents, including this Court's previous order granting in part and denying in part Federal Defendants' motion to dismiss. (See Doc. No. 68.) Although the complaint has been amended several times, the core facts remain the same. Plaintiffs are the descendants of Jose Juan Martinez, Guadalupe Martinez, and their daughter Modesta Martinez Contreras (collectively, "Martinez Ancestors"). (Fourth Amended Complaint ¶¶ 12-19.) Plaintiffs are split into Groups A and B. (Id.) Group A Plaintiffs include Plaintiffs who are: residents of San Diego County, "direct lineal descendants of Jose Juan Martinez and Guadalupe Martinez," and "direct lineal descendants of Modesta Contreras." (Id. ¶ 15.) Group A Plaintiffs are enrolled in the San Pasqual Band of Mission Indians ("the Band") but are not federally recognized as Band members by the Bureau of Indian Affairs ("BIA"). (Id.) Group B Plaintiffs are also San Diego County residents, are enrolled in the Band, and are federally recognized by the BIA as Band members. (Id. ¶ 18.)

Group A Plaintiffs assert each of the Martinez Ancestors were full blood San Pasqual Indians. (Id. ¶ 28.) In 2005, Group A Plaintiffs submitted their applications to the Enrollment Committee for enrollment with the Band. (Id. ¶ 29.) The Enrollment Committee unanimously voted that Plaintiffs had established they were qualified for enrollment. (Id.) This determination "was predicated on a finding that Plaintiffs' ancestor Modesta's blood degree should be increased from ¾ to 4/4" because "both of Modesta's parents were full blood San Pasqual Indians, based upon the totality of the documentary evidence." (Id. ¶ 30.) The Band's General Council then unanimously agreed with the Enrollment Committee on April 10, 2005. (Id. ¶ 30.) Later, on September 12, 2005, the Band's Business Committee concurred with both the General Council and the Enrollment Committee and sent its findings to former Superintendent of the Southern California Agency, James Fletcher ("Fletcher"). (Id. ¶ 31.) Group A Plaintiffs allege that under federal law and the Tribal Constitution, they were eligible to be enrolled and federal recognized as San Pasqual Indians, and that Federal Defendants were required to accept the Tribal recommendations unless the recommendation was "clearly erroneous." (Id.)

On September 22, 2005, the Enrollment Committee—in a separate proceeding—requested the BIA increase Modesta's blood degree from 3/4 to 4/4-degree San Pasqual blood. (Id. ¶ 32.) Three months later, on December 8, 2005, Fletcher sent Individual Defendant Amy Dutschke ("Dutschke") a letter, stating "the preponderance of the evidence does not sufficiently demonstrate that Modesta [] is full blood[,]" (id. ¶ 33) to which Dutschke concurred in a letter on April 7, 2006, (id. ¶¶ 34-35). However, Plaintiffs were never given written notice of either Fletcher or Dutschke's findings. (Id. ¶ 35.) Plaintiffs eventually submitted FOIA requests to determine the status of their applications, to which they received responses on October 1, 2014, and May 27, 2015. (Id. ¶ 44). It was at this time Plaintiffs learned of Dutschke's April 7, 2006 negative determination of Plaintiffs' enrollment requests. (Id.)

Plaintiffs filed their appeal with Dutschke in January and April 2015. (Id. ¶ 45.) Around July 25, 2015, Defendant Moore issued a letter stating that the BIA no longer had the original applications to adjudicate the enrollment, and the April 7, 2006 letter was final for the Department, exhausting Plaintiffs' administrative remedies. (Id. ¶ 45.) On May 6, 2016, Plaintiffs resubmitted their appeal, but did not receive a response from Federal Defendants. (Id. ¶¶ 46-47.)

Plaintiffs filed suit, alleging that Federal Defendants' failure to add the Group A Plaintiffs to the Band and instead enrolling non-San Pasqual individuals into the Tribe constituted a violation of Group A Plaintiffs' Fifth Amendment right to equal protection under the law. (Id. ¶ 49.) In addition, Plaintiffs' FAC alleges "ten specific acts" which demonstrate Defendants violated the Equal Protection Clause of the Fifth Amendment by:

• enrolling non-San Pasqual persons into the Band;

• enrolling Group A Plaintiffs' cousins into the Band, but not Plaintiffs;

• holding Plaintiffs to a higher blood quantity standard than other members of the Band;

• denying Group A Plaintiffs notice of BIA's conclusions and an opportunity to submit additional documents to support their application for membership;

• targeting and discriminating Plaintiffs;• using the wrong standard of review when considering Modesta's blood degree;

• failing to consider Plaintiffs' total Indian Blood when determining whether to approve enrollment applications into the Band, as they had for others;

• enacting former 25 C.F.R. § 48.5(f);

• manipulating facts and documents in order to allow certain persons to inappropriately enroll in the Band, including inserting the words "blood of the Band" into clauses of 25 C.F.R. Part 45, and then misinterpreting that phrase to allow total Indian Blood to be used to enroll certain persons into the Band; and

• ignoring the Band's Enrollment Committee's objections to the enrollment of certain persons into the Band.

(Id. ¶¶ 125-38.)

II. PROCEDURAL HISTORY

Plaintiffs' Complaint was first filed in September 28, 2016. (Doc. No. 1.) After several rounds of amendments, Plaintiffs are now on their Fourth Amended Complaint. (Doc. No. 105.) The remaining claims in the Fourth Amended Complaint are: (1) an Administrative Procedures Act claim, (2) a claim seeking declaratory relief or a writ of mandate, and (3) a claim alleging violation of Plaintiffs' Fifth Amendment equal protection rights. (Doc. No. 105.) On October 7, 2019, Federal Defendants filed a motion to dismiss Plaintiffs' third claim for relief for lack of jurisdiction. (Doc. No. 110.) Plaintiffs opposed, (Doc. No. 116) and Federal Defendants replied, (Doc. No. 119). This order follows.

III. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1) Dismissal for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Accordingly, "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). In civil cases, federal courts have subject matter jurisdiction over only those cases where either diversity jurisdiction or federal question jurisdiction exists. See Peralta v. HispanicBus., Inc., 419 F.3d 1064, 1068-69 (9th Cir. 2005). Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332. Federal question jurisdiction exists in cases that arise under federal law. Id. § 1331.

Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the party asserts a facial challenge, the court limits its inquiry to the allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the party asserts a factual challenge, the court may consider extrinsic evidence demonstrating or refuting the existence of jurisdiction without converting the motion to dismiss into a motion for summary judgment. Id. The party asserting subject matter jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010).

B. Sovereign Immunity

Generally, the United States and its agencies may not be sued in federal court unless Congress has waived sovereign immunity. If Congress has not waived the federal government's immunity for a particular claim, courts lack jurisdiction over that claim and must dismiss it. United States v. Dalm, 494 U.S. 596, 608 (1990). "A mere assertion that jurisdictional statutes apply does not suffice to confer jurisdiction when, as in this case, the government did not waive its immunity." Hughes v. United States, 953 F.2d 531, 539 n.5 (9th Cir. 1992). Sections 1331, 1353, 1361, and 1362 of Title 28 do not contain waivers of sovereign immunity. See 28 U.S.C. § 1353. Sections 28 U.S.C. §§ 1331 and 1337 are statutes of general jurisdiction, but they do not waive the United States' sovereign immunity. Any waiver "must be construed strictly in favor of the sovereign" and "not enlarged beyond what the language requires." United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992).

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IV. DISCUSSION

Federal Defendants move to dismiss the third cause of action in Plaintiffs'...