317 F. Supp. 3d 504
D.C. Cir.2018Background
- Fort Sill Apache Tribe (federally recognized) relocated to Akela Flats, NM under a 2007 settlement (Comanche Nation Settlement Agreement) and sought to operate a casino there.
- NIGC issued a series of adverse determinations (2008 opinion, Notice of Violation 09-35) leading the Tribe to close its casino; NIGC issued a 2015 Decision upholding the NOV.
- Parties pursued extended settlement talks; by joint proposal and court order, Interior would send a letter to NIGC and NIGC would reconsider and issue a "Decision and Order."
- Interior sent a letter and NIGC issued a 2017 Decision (a letter signed by three Commissioners) declining reconsideration and reaffirming the 2015 Decision; the Tribe challenged that 2017 Decision in an amended complaint.
- Defendants moved to dismiss Counts 2 (closure claim), 3 (breach of settlement agreement), and 4 (challenge to 2017 Decision); Court ruled on jurisdiction, final agency action, and compelled the administrative record for the 2017 Decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count 2 (claim that NIGC forced closure) states a separate APA claim | Closure was caused by NIGC actions and is reviewable | Tribe closed voluntarily under threat of fines; no separate final action beyond 2015 Decision | Dismissed: harms alleged in Count 2 are subsumed in Count 1 (challenge to 2015 Decision) |
| Whether Court has jurisdiction over Count 3 (breach of Comanche Settlement Agreement) | Court can assert ancillary/enforcement jurisdiction tied to IGRA/APA claims and prior settlement | No waiver of sovereign immunity; Kokkonen does not permit one district to enforce a settlement retained by another district | Dismissed for lack of subject-matter jurisdiction |
| Whether the 2017 Decision is reviewable final agency action (permitting Count 4) | The parties’ agreement and court-ordered process produced a new ‘‘Decision and Order’’; agencies can reopen and issue new final orders | 2017 letter is non-final, procedural, or noncompliant with IGRA/federal procedures and therefore not reviewable | Denied dismissal as to Count 4: 2017 Decision pled sufficiently as final agency action; leave to amend upheld |
| Whether the administrative record for the 2017 Decision must be produced | Tribe seeks the record to review agency decision-making | Defendants delayed in designating the record | Court ordered Defendants to file the administrative record (and privilege log) within 14 days; motion to compel otherwise denied as premature |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (district court retains jurisdiction to enforce settlements only if order incorporates or expressly retains jurisdiction)
- Sendra Corp. v. Magaw, 111 F.3d 162 (D.C. Cir. 1997) (agency may reopen and, after reconsideration, issue a new final order subject to judicial review)
- Interstate Commerce Comm’n v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (reaffirming reviewability of agency reconsideration producing final action)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action requirement for APA review)
- Harris v. FAA, 353 F.3d 1006 (D.C. Cir. 2004) (discussing final agency action in the reconsideration context)