103 F. Supp. 3d 113
D.D.C.2015Background
- In April 2009 the Fort Sill Apache Tribe opened the Apache Homelands Casino on trust land in New Mexico. The NIGC Chairman issued Notice of Violation (NOV) No. 00-35 on July 21, 2009 ordering cessation of gaming and threatening civil fines.
- The Tribe timely appealed the NOV to the full Commission; NIGC proposed an expedited appeals process and the Tribe waived a hearing. New Mexico was permitted to intervene as a full party.
- Briefing on the administrative appeal was completed by August 2011 (the Tribe informed NIGC in January 2012 it would not seek a stay). The Commission has not issued a decision; the Tribe closed the casino in 2009 after agreeing to NIGC’s proposal to stay fines if it ceased gaming pending appeal.
- The Tribe sued in June 2014 under the Administrative Procedure Act (APA), seeking (Count 1) an order compelling agency action unlawfully withheld or unreasonably delayed (5 U.S.C. § 706(1)) and (Count 2) review and vacatur of the NOV as arbitrary and capricious (5 U.S.C. § 706(2)).
- NIGC moved to dismiss for lack of jurisdiction and failure to state a claim, arguing sovereign immunity, nonfinal agency action, and failure to exhaust administrative remedies.
- The Court held that the APA waives sovereign immunity for nonmonetary suits alleging agency failure to act; it retained jurisdiction over Count 1 (compel delayed action) but dismissed Count 2 for lack of final agency action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the Tribe’s APA suit | APA §702 waives sovereign immunity for non‑monetary suits alleging agency failure to act | NIGC: APA waiver requires final agency action; absent that waiver doesn’t apply | Court: APA §702 waives immunity for non‑monetary failure‑to‑act suits; sovereign immunity does not bar suit |
| Jurisdiction to compel delayed agency action (§706(1)) | NIGC unreasonably delayed a discrete, nondiscretionary duty to decide the appeal within regulatory deadlines | NIGC: IGRA/regulatory scheme and circumstances justify delay; process ongoing | Court: IGRA does not preclude review; NIGC had mandatory deadlines and delay is reviewable — Count 1 survives |
| Whether the NOV is final agency action permitting §706(2) review | NOV and NIGC’s inaction are functionally equivalent to a denial of relief and thus final | NIGC: appeal is pending before Commission; no final decision has been issued | Court: No — closure resulted from Tribe’s choice to avoid fines, not an NIGC order; no final agency action; Count 2 dismissed |
| Whether failure to exhaust or lack of finality defeat Count 1 | Tribe: Delay claim is ripe; lack of final order does not bar mandamus/APA relief when agency fails to act | NIGC: finality and exhaustion are prerequisites to APA review | Court: Finality/exhaustion do not bar §706(1) claim about unreasonable delay; court has jurisdiction over Count 1 |
Key Cases Cited
- Block v. North Dakota, 461 U.S. 273 (1983) (sovereign immunity bars suit against the United States unless waived)
- FDIC v. Meyer, 510 U.S. 471 (1994) (sovereign immunity principles apply to federal agencies and officers sued in official capacity)
- Lane v. Pena, 518 U.S. 187 (1996) (statutory waivers of sovereign immunity are strictly construed)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (§706(1) relief requires a claim that agency failed to take a discrete, nondiscretionary action)
- Bennett v. Spear, 520 U.S. 154 (1997) (test for final agency action: consummation and legal consequences)
- Sierra Club v. Thomas, 828 F.2d 784 (D.C. Cir. 1987) (agency inaction can be functionally equivalent to final agency action in some circumstances)
- Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (court may compel delayed agency action under §555(b) and §706(1))
- Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) (APA’s sovereign‑immunity waiver applies regardless of whether agency action is final)