Historic Eastern Pequots v. Salazar, Civil Action No. 12–58 (EGS).

934 F.Supp.2d 272

HISTORIC EASTERN PEQUOTS, Plaintiff,

v.Kenneth SALAZAR, Secretary of the Interior, and Larry Echohawk, Assistant Secretary for Indian Affairs, United States Department of the Interior, Defendants.

Civil Action No. 12–58 (EGS).

United States District Court, District of Columbia.

March 31, 2013.

James Benny Jones, Washington, DC, for Plaintiff.

Barbara M.R. Marvin, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Pending before the Court is a motion to dismiss or, in the alternative, to transfer, filed by defendants Kenneth Salazar, Secretary of the Interior, and Larry Echohawk, Assistant Secretary for Indian Affairs.¹ Upon consideration of the motion, the response and reply thereto, a brief filed by the State of Connecticut as Amicus Curiae, the entire record, and for the reasons stated below, defendants' motion to dismiss is GRANTED.

I. BACKGROUND

In 1978, the Eastern Pequot Indians of Connecticut filed a letter of intent seeking federal acknowledgment as an Indian tribe pursuant to 25 C.F.R. Part 83. See65 Fed.Reg. 17299 (Mar. 31, 2000).² On June 24, 2002, the Assistant Secretary issued a Final Determination (“FD”) concluding that the “historical Eastern Pequot tribe, represented by two petitioners, the Eastern Pequot Indians of Connecticut and the Paucatuck Eastern Pequot Indians of Connecticut,” satisfied the regulatory criteria for federal acknowledgment. See67 Fed.Reg. 44,234–02 (Jul. 1, 2002). A request for reconsideration of that decision was filed with the Interior Board of Indian Appeals (“IBIA”) within 90 days by the State of Connecticut and the towns of North Stonington, Ledyard and Preston. In re Fed. Acknowledgment of the Historical E. Pequot Tribe, 41 IBIA 1; 67 Fed.Reg. 44,240 (Jul. 1, 2002). On May 12, 2005, the IBIA issued an Order Vacating and Remanding the determination. 41 IBIA 1. On October 14, 2005, the IBIA issued and published a Reconsidered Final Decision (“RFD”) in the Federal Register denying federal recognition to the tribe. 70 Fed.Reg. 60,099–01 (Oct. 14, 2005). The RFD stated that it was “final and effective upon the date of publication.” Id.

On January 12, 2006, the IBIA received a request from the “Historic Eastern Pequot Tribe” for reconsideration of the RFD. 42 IBIA 133. The IBIA dismissed the request for lack of jurisdiction. Id. Specifically, the IBIA explained that it only has jurisdiction to review timely requests for reconsideration of a Final Determination, not a Reconsidered Final Determination. In this case, the Final Determination was issued on July 1, 2002. The Reconsidered Final Decision, issued October 14, 2005, was final and effective upon its publication.

Plaintiff filed the initial complaint in this action on January 13, 2012. ECF No. 1. At that time, plaintiff was proceeding as the “Eastern Pequot Tribal Nation.” The Court subsequently received a letter dated January 20, 2012 from James A. Cunha, Jr., Tribal Chairman of the Eastern Pequot Tribal Nation. ECF No. 2. Mr. Cunha explained that the complaint had not been reviewed or authorized by the Eastern Pequot Tribal Nation and he requested information as to how to withdraw the complaint.

On February 3, 2013, the Court directed plaintiff to respond to Mr. Cunha's letter. On February 18, 2012, plaintiff moved to substitute the “Historic Eastern Pequots” for the Eastern Pequot Tribal Nation. ECF No. 3. The Court granted that motion on February 22, 2012, and directed plaintiff to file an amended complaint. The Amended Complaint was filed on March 7, 2012. ECF No. 5.

On April 11, 2012, defendants moved to dismiss or, in the alternative, to transfer venue. ECF No. 8. Defendants argue that the Court lacks subject matter jurisdiction over plaintiff's claims because they fall outside of the applicable statutes of limitations. Defendant also argues that Counts VIII and IX fail to state a claim. The motion is now ripe for the Court's decision.

II. STANDARD OF REVIEW

a. Rule 12(b)(1)

Federal district courts are courts of limited jurisdiction and “possess only that power conferred by [the] Constitution and [by] statute.” Logan v. Dep't of Veterans Affairs, 357 F.Supp.2d 149, 152 (D.D.C.2004) ( quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). “There is a presumption against federal court jurisdiction and the burden is on the party asserting the jurisdiction, the plaintiff in this case, to establish that the Court has subject matter jurisdiction over the action.” Id. at 153 (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182–83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)).

In assessing whether a complaint sufficiently alleges subject matter jurisdiction, the Court accepts as true the allegations of the complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and liberally construes the pleadings such that the plaintiff benefits from all inferences derived from the facts alleged, Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004). However, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal citations, quotation marks and brackets omitted). When the inquiry focuses on the Court's power to hear the claim, “the Court may give the plaintiff's factual allegations closer scrutiny and may consider materials outside the pleadings.” Logan, 357 F.Supp.2d at 153 (citing Fed.R.Civ.P. 12(b)(1); Herbert v. Nat'l Academy of Scis., 974 F.2d 192, 197 (D.C.Cir.1992); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001)).

b. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citations omitted). While detailed factual allegations are not necessary, plaintiff must plead enough facts “to raise a right to relief above the speculative level.” Id.

When ruling on a Rule 12(b)(6) motion, the Court may consider “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). The Court must construe the complaint liberally in plaintiff's favor and grant plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court must not accept plaintiff's inferences that are “unsupported by the facts set out in the complaint.” Id. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. DISCUSSION

a. Standing

As an initial matter, it does not appear that plaintiff has standing to bring its claims. Lack of standing is a defect in subject matter jurisdiction. See Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). To establish Article III standing at the pleading stage, a plaintiff bears the burden of pleading that: “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “This triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103–04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Plaintiff's claims face a fundamental threshold problem: it is entirely unclear whether the plaintiff entity the “Historic Eastern Pequots” was affected in any way whatsoever by the RFD. Plaintiff initially brought its claims as the “Eastern Pequot Tribal Nation” but substituted the “Historic Eastern Pequots” as plaintiff after the Chief of the Eastern Pequot Tribal Nation disclaimed the lawsuit. In its motion to substitute, counsel for the Historic Eastern Pequots set forth a detailed history of intra-tribal disputes regarding federal recognition but those allegations shed no light on whether the “Historic Eastern Pequots” is a separate entity or can stand in the shoes of the entities subject to the RFD. ECF No. 3. Defendants argue, predominantly in a footnote, that the Historic Eastern Pequots lack standing to challenge the RFD because plaintiff's relationship to the Eastern Pequot Tribal Nation is unclear. Defs.' Mot. at 2, n. 1–3 (citing Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130). The State of Connecticut, participating as Amicus Curiae, suggests that the lawsuit appears to arise out of an intra-tribal dispute over the appropriate response of the tribe to the RFD. See Brief of the State of Conn. at 8 (discussing allegations regarding the Tribal Council's reluctance to challenge the denial of the RFD). In its opposition, plaintiff wholly fails to address the standing issue. On reply, defen...