Nakai v. Jewell, Civil Action No. 2016-1500

Heather McMillan Nakai applied (Mar. 2013) for Verification of Indian Preference with BIA/IHS under 25 C.F.R. § 5.1, asserting Croatan and Cherokee descent.
BIA denied her request, citing that Lumbee Indians are not a federally recognized tribe and that the Lumbee Act precluded extending benefits; Nakai appealed and IBIA affirmed based on the Department’s prior interpretation of the Lumbee Act.
Nakai argued she sought preference based on one-half or more Indian blood under §5.1(c), not Lumbee tribal membership; IBIA treated her Lumbee status as dispositive.
In Dec. 2016 the Solicitor issued M-Opinion M-37040, concluding the prior interpretation was incorrect and that Lumbee persons may seek Part 83 acknowledgment and be considered for benefits if acknowledged; the agency remanded Nakai’s application for reconsideration consistent with the Solicitor’s opinion.
Defendants moved to dismiss the lawsuit as moot based on the remand; Nakai opposed, claiming the remand was pretextual and moved to complete the administrative record and to strike new arguments in defendants’ reply.
The court concluded the agency’s voluntary change mooted the case, denied Nakai’s motions as moot, and granted dismissal under Rule 12(b)(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness / jurisdiction	Nakai: agency remand is pretext; case remains live and the court should adjudicate plaintiff’s APA challenge	DOI: Solicitor’s M-Opinion + remand eliminated the legal basis for denial, leaving nothing for the court to review	Court: Dismiss for mootness — agency’s voluntary change eradicated the challenged conduct
Scope of review / administrative record	Nakai: court should order supplementation of the administrative record with her descent evidence	DOI: review is limited to agency record; remand directs agency to consider her descent; supplementation unnecessary	Court: Denied motion to complete record as moot — court cannot grant relief beyond remand outcome
Voluntary cessation standard / risk of recurrence	Nakai: possibility of future denial and entitlement to fees keeps case live	DOI: no reasonable expectation of recurrence; M-Opinion is a substantive change	Court: DOI met stringent standard; no reasonable expectation of repeated conduct; effects eradicated
Attorney’s fees (EAJA)	Nakai: potential fees/costs mean case is not moot and court can provide equitable relief	DOI: EAJA relief requires prevailing-party status and showing government not substantially justified; remand alone cannot produce prevailing-party status	Court: EAJA does not defeat mootness; agency position was substantially justified at time of denial, so fees unlikely even if Nakai later prevailed

Maynor v. Morton, 510 F.2d 1254 (D.C. Cir. 1975) (Lumbee Act interpretation and prior D.C. Circuit guidance)
Honig v. Doe, 484 U.S. 305 (1988) (Article III case-or-controversy requirement)
County of Los Angeles v. Davis, 440 U.S. 625 (1979) (voluntary cessation and mootness)
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (stringent standard for mootness after voluntary cessation)
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (danger that defendants could evade review by voluntary cessation)
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (scope of APA review limited to agency record)
W. T. Grant Co. v. United States, 345 U.S. 629 (1953) (no reasonable expectation that challenged activity will recur)
Cooper v. U.S. R.R. Retirement Bd., 24 F.3d 1414 (D.C. Cir. 1994) (prevailing-party status and remand implications for EAJA relief)
Pierce v. Underwood, 487 U.S. 552 (1988) (EAJA standard: government position must be not substantially justified)