298 F. Supp. 3d 136
D.C. Cir.2018Background
- Plaintiffs challenged a January 19, 2017 Record of Decision (fee-to-trust) signed by Michael Roberts (Principal Deputy Assistant Secretary–Indian Affairs), alleging it was ultra vires because Roberts was not Secretary or AS‑IA and FVRA/Appointments Clause violations followed.
- 25 C.F.R. § 151.12(c) (2013) treats decisions by the Secretary or the AS‑IA as final agency action; § 151.12(d) treats Bureau-level decisions as non‑final until administrative remedies are exhausted.
- The Department Manual (209 DM 8) delegates broad AS‑IA authority to the AS‑IA and authorizes the Principal Deputy Assistant Secretary to exercise AS‑IA authority in the AS‑IA’s absence.
- Roberts served as Acting AS‑IA under the FVRA for 210 days (Jan 1–July 29, 2016); after that he reverted to Principal Deputy AS‑IA and the AS‑IA position remained vacant when Roberts signed the ROD.
- Secretary Jewell issued a temporary redelegation order (Jan 19, 2017) delegating non‑exclusive AS‑IA functions to BIA official Mr. Black, who later acted to acquire title in trust and handled an appeal.
- The court denied Plaintiffs’ summary judgment and granted defendants’ and intervenor’s motions, holding the decisions were validly delegated and did not violate the FVRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 25 C.F.R. § 151.12(c) exclusively reserves final fee‑to‑trust decisions to the Secretary or AS‑IA (i.e., precludes subdelegation) | § 151.12(c) names only Secretary and AS‑IA; that wording shows exclusivity and excludes subdelegation (expressio unius) | Regulation is procedural, lacks explicit anti‑delegation language; presumption favors subdelegation; §151.12(c)/(d) clarify finality, not internal delegation limits | Not exclusive. §151.12(c) does not preclude delegation; authority is presumptively delegable and no affirmative evidence to forbid it |
| Whether Roberts’ ROD was ultra vires because he was not a PAS officer or Acting AS‑IA at time of decision (Appointments Clause / FVRA) | Roberts was neither Secretary, AS‑IA, nor Acting AS‑IA when ROD issued; FVRA limits acting authority; decision void | Authority to make non‑exclusive AS‑IA decisions can be exercised by Principal Deputy under Department Manual; FVRA permitted Roberts to exercise non‑exclusive duties after acting period by redelegation | Roberts validly exercised non‑exclusive AS‑IA authority pursuant to Department Manual; ROD not ultra vires and did not violate FVRA |
| Whether Mr. Black’s acquisition of title and handling/dismissal of the appeal were ultra vires | Black lacked authority under FVRA/regulations to acquire trust title or assume/dismiss the appeal | Secretary’s temporary redelegation (Jan 19, 2017) delegated non‑exclusive AS‑IA functions to Black; taking land into trust is delegable/non‑exclusive under §151.12 | Black’s actions were authorized by the redelegation and §151.12; not ultra vires (and moot in part because Roberts’ ROD already final) |
| Whether decisions by BIA officials vs. AS‑IA are final (administrative exhaustion / reviewability) | Plaintiffs emphasize finality to contest who may issue final decisions | The 2013 amendments to §151.12 distinguish final AS‑IA decisions (immediately reviewable) from BIA decisions (require exhaustion); intent of rulemaking was external clarification | Court reads §151.12 as clarifying finality and exhaustion rules; that scheme does not bar proper delegations to AS‑IA office deputies |
Key Cases Cited
- SW General, Inc. v. N.L.R.B., 796 F.3d 67 (D.C. Cir. 2015) (discusses FVRA and acting‑official authority)
- U.S. Telecom Ass'n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) (subdelegation presumptively permissible absent contrary evidence)
- United States v. Giordano, 416 U.S. 505 (1974) (statute construed to forbid subdelegation where Congress manifested clear intent)
- Ethicon Endo‑Surgery, Inc. v. Covidien LP, 812 F.3d 1023 (Fed. Cir. 2016) (distinguishing delegation provisions and recognizing that naming an official does not necessarily bar subdelegation)
- United States v. Mango, 199 F.3d 85 (2d Cir. 1999) (permitting delegation where statutory language and history do not indicate prohibition)
- Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389 (D. Conn. 2008) (upholding intra‑agency redelegation of non‑exclusive duties)
- Sokaogon Chippewa Cmty. v. Babbitt, 929 F. Supp. 1165 (W.D. Wis. 1996) (AS‑IA delegation to deputy upheld for final decision)
- Holy Trinity Church v. United States, 143 U.S. 457 (1892) (avoid absurd literal readings in statutory/regulatory interpretation)