SAC & FOX NATION OF OKLAHOMA; the Housing Authority of the Sac & Fox Nation of Oklahoma; Citizen Potawatomi Nation; Citizen Potawatomi Nation Housing Authority; Kickapoo Tribe of Oklahoma; Housing Authority of the Kickapoo Tribe of Oklahoma, Plaintiffs-Appellants, v. Andrew CUOMO, as Secretary of the United States Department of Housing and Urban Development; Dom Nessi, as Deputy Assistant Secretary for Native American Programs; Wayne Sims, Administrator of Southern Plains Office of Native American Programs; The Housing Authority of the Absentee Shawnee Tribe of Oklahoma, Defendants-Appellees.
Nos. 97-6317, 98-6212.
United States Court of Appeals, Tenth Circuit.
Oct. 12, 1999.
193 F.3d 1162
The judgment of the United States District Court for the Western District of Oklahoma is REVERSED and the case REMANDED for new trial.
Michael Minnis, Michael Minnis & Associates, P.C., Oklahoma City, Oklahoma, and Nathan H. Young, III, Tahlequah, Oklahoma (David McCullough of Michael Minnis & Associates, P.C., Oklahoma City, Oklahoma, with them on the briefs), for Appellants.
F. Browning Pipestem (Dena L. Silliman with him on the briefs), F. Browning Pipestem & Associates, Norman, Oklahoma, for Appellee Absentee Shawnee Housing Authority.
STEPHEN H. ANDERSON, Circuit Judge.
This case involves a jurisdictional dispute between, on the one side, three Indian Tribes in Oklahoma (the “Three Tribes“)1 and, on the other, the Housing Authority of a fourth tribe, and the officials in the Department of Housing and Urban Development (“HUD“) who allocate Indian-housing funds in Oklahoma. The Three Tribes sued, seeking declaratory and injunctive relief against HUD and the Absentee Shawnee Housing Authority (ASHA). They complained that HUD has been funding ASHA housing projects that are outside ASHA‘s proper area of operation, and instead in theirs. They asked the district court to enjoin ASHA from conducting, and HUD from funding, activities outside its legal area of operation, and to order defendants to transfer to the Three Tribes all HUD projects in each of their respective jurisdictions.
The Three Tribes moved unsuccessfully for a preliminary injunction and immediately appealed its denial to this court. They also moved unsuccessfully to have the assigned district judge disqualify herself. Before we heard the interlocutory appeal, the district court dismissed the complaint on the alternative grounds of lack of federal-question jurisdiction and inability to join an indispensable party, the Absentee Shawnee Tribe (“AST“). The Three Tribes appealed that dismissal, and this court consolidated the two appeals. We have jurisdiction under
Plaintiffs alleged four claims in their complaint, each seeking slightly different injunctive relief: (1) that against ASHA; (2) that requiring HUD to transfer existing projects to the Three Tribes; (3) that barring HUD from allocating future operating funds to ASHA for existing projects; and (4) that barring HUD from allocating future funds to ASHA to develop new housing. Because none of these claims pose a substantial federal question, we affirm the dismissal of the complaint. We also dismiss as moot the preliminary injunction appeal, vacate the dismissal for failure to join an indispensable party, and affirm the denial of the motion to disqualify the assigned judge.
BACKGROUND
The district court dismissed this case before any discovery, and the facts are thus scantily developed. We take all factual allegations in the complaint as true. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).
The Three Tribes each have trust lands and former reservation areas in parts of four counties in central Oklahoma. The AST has no former reservation in Oklahoma, but the United States holds some land in one of the counties in trust for it. The AST sponsors and controls ASHA, but ASHA is technically an agency of the State of Oklahoma, created by the Oklahoma Housing Authorities Act (“OHAA“). See
Over the Three Tribes’ protests, HUD has been, for years, funding ASHA‘s construction and operation of housing projects on lands located in the Three Tribes’ former reservation areas and not held in trust
The Three Tribes filed a complaint for injunctive and declaratory relief in May 1997. They also moved for a preliminary injunction barring ASHA from continuing, and HUD from funding, operations outside ASHA‘s legal area of operation. The court set a hearing on the preliminary injunction motion, but later struck the hearing “to be re-set ... after June 26, 1997.” ASHA then moved to dismiss. It argued that the court lacked subject matter jurisdiction, as the case turned not on any federal question but on the state-law question of how to define ASHA‘s area of operation, and that the AST was a necessary party, unable to be joined because of its sovereign immunity.
The court denied the preliminary injunction on July 7, without having rescheduled the stricken hearing. It also sua sponte stayed all further proceedings pending resolution of ASHA‘s motion to dismiss. The Three Tribes, complaining of their inability to conduct discovery, moved the court to lift the stay or, in the alternative, to lift it for the limited purpose of considering a motion to disqualify the assigned judge. The court did the latter, considered the motion, and denied it.
In September 1997, the Three Tribes appealed the denial of the preliminary injunction. After this court denied their motions to expedite the appeal and to enter an injunction pending appeal, the parties filed their briefs.
The district court, meanwhile, had not acted on ASHA‘s motion to dismiss. In February 1998 the Three Tribes notified the court that it had been pending for over 90 days. Three weeks later, they petitioned this court for a writ of mandamus directing the district court to lift the stay, recuse the assigned judge, and require the new judge to rule on the motion to dismiss. Six days later, the district court granted the motion to dismiss. This court then denied the mandamus petition as moot. After a dispute over whether the order granting ASHA‘s motion to dismiss had been final, the Three Tribes appealed that order. We consolidated the two appeals.
DISCUSSION
I. Subject-Matter Jurisdiction
We review de novo a dismissal under
The only asserted basis for subject-matter jurisdiction is the presence of a federal question.3 A plaintiff creates federal-question jurisdiction by means of a “well-pleaded complaint establish[ing] either that federal law creates the cause of action or that the plaintiff‘s right to relief depends on resolution of a substantial question of federal law.” Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for So. California, 463 U.S. 1, 27-28 (1983). “[T]he party invoking federal jurisdiction bears the burden of proof.” Marcus v. Kansas, 170 F.3d 1305, 1309 (10th Cir.1999) (quoting Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991)). Moreover, federal question jurisdiction must appear on the face of the complaint and “[t]he complaint must
In dismissing the complaint for lack of jurisdiction, the district court held:
plaintiffs do not plead any constitutional provision, federal law or treaty upon which federal question jurisdiction could rest. To the contrary, the only law at issue appears to be the [OHAA], since the gist of plaintiffs’ complaint is that ASHA is allegedly developing low income homes outside its “area of operation” as set out in the [OHAA].
Order at 9-10, Appellants’ App. (No. 98-6212) at 40-41. We agree.
We first affirm the dismissal of the claims against ASHA, as those claims clearly present no federal question. The Three Tribes suggest no cause of action against ASHA that arises under or depends on the construction of any federal law. The Three Tribes’ brief on appeal virtually concedes that only their claims against the federal defendants could conceivably pose a federal question.
We also hold that plaintiffs’ complaint fails to articulate a substantial federal question with respect to those federal defendants. Only two paragraphs in the complaint even mention HUD‘s conduct:
- Every housing unit operated by the ASHA must be approved and funded by HUD.
- Defendant Secretary of HUD and Defendant Southern Plains Office of Native American Programs by and through Defendant Sims have been continually advised of the ASHA‘s illegal encroachments on other tribes’ areas, but have refused to halt the encroachments, and if not enjoined, will continue to allow these encroachments and allocate federal funding to the ASHA based thereon.
Complaint at ¶¶ 24, 25, Appellants’ App. (No. 97-6317) at 5. Noticeably absent from those paragraphs are any references to federal laws, regulations, treaties, etc. which plaintiffs claim HUD has violated, or even any general description of how HUD is allegedly responsible for the “encroachments,” not to mention how any claimed violation of any law or regulation could confer federal question jurisdiction.4
In response to ASHA‘s motion to dismiss in the district court, grounded in part on the lack of a federal question, plaintiffs only specifically referred to those two paragraphs in the complaint. See Pls.’ Br. in Opp‘n to the ASHA Mot. to Dismiss at 5 n.13, Appellants’ App. at 5. They supplemented that reference with general statements such as “[a]llocation of federal funding by the Federal Defendants is certainly a federal question” and “[t]he proper administration of a federal program is obviously a controversy arising under federal law.” Id. at 5. Again, plaintiffs directed the district court to no specific federal law or regulation which they claimed was violated or which conferred federal question jurisdiction, nor did they articulate even in general terms how HUD could be liable for the claimed illegal activities of ASHA.
While plaintiffs’ brief to this court on appeal attempts, for the first time, to explain how paragraphs 12 through 27 of the complaint also allege violations of federal regulations, in fact the clear, and only, focus of those paragraphs is on ASHA‘s “operational/jurisdictional areas” as defined by state law, and on ASHA‘s claimed “encroachments” on plaintiffs’ “operational/jurisdictional areas,” also as defined by state law. It is therefore entirely under-
We acknowledge that, in general, we apply liberal rules of pleading, particularly where a party proceeds pro se. Additionally, pleadings may be amended, including on appeal, to cure defective allegations of jurisdiction. See
We decline to construe plaintiffs’ appellate brief as an amendment of their complaint. While we have permitted such appellate amendment in one prior case, Martinez, that case is readily distinguishable from this one. In Martinez, plaintiff‘s complaint alleged that “federal questions are involved,” but failed to particularly allege any issue regarding the validity, construction or application of any federal statute. Martinez, 802 F.2d at 1280. However, in oral argument before the district court on a motion to dismiss, plaintiff argued that a specific federal statute created a private cause of action supporting her complaint. Defendants, thus, were on notice of the jurisdictional allegations and had an opportunity to respond both before the district court and in their appellate brief. After noting that “these allegations should have appeared in [plaintiff‘s] complaint,” we treated the complaint, for purposes of the appeal, as “having been amended to include them.” Id. In Martinez, therefore, the specific federal cause of action was identified and argued to the district court, as well as on appeal. Here, the specifics of plaintiffs’ asserted federal cause of action were not argued until on appeal and, even then, only in the most vague and opaque fashion and for the very first time in a footnote in their reply brief.
Accordingly, Martinez does not establish any general rule about appellate amendment of pleadings to satisfy jurisdictional requirements; rather, it represents a narrow, case-specific, exception to our general rules of pleading.5 To interpret Martinez any other way would unfairly prejudice the federal defendants because they would have no practical opportunity to respond to the jurisdictional allegations
In sum, the district court in this case correctly dismissed plaintiffs’ complaint for failing to establish the existence of federal-question jurisdiction. “[W]hen the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). No such affirmative showing was made here.
II. Preliminary Injunction
This consolidated appeal includes the Three Tribes’ interlocutory appeal from the order declining to preliminarily enjoin ASHA and HUD from conducting or funding operations in the disputed area. Our disposition of this case renders that appeal moot.
III. Motion to Disqualify
The Three Tribes also appeal the denial of their motion to disqualify the assigned judge on the grounds of an “appearance of bias.” See
A federal judge must recuse herself “in any proceeding in which [her] impartiality might be reasonably questioned.”
We reject the first argument, since the Three Tribes expressly disavow any knowledge that the district court judge personally participated in any way in the particular prior case. See United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir.1988). We reject their second asserted ground for recusal, noting that, as the Tribes concede, merely adverse rulings can almost never constitute grounds for disqualification, see Cooley, 1 F.3d at 993-94, and the Tribes cite no authority for their claim that the time and manner of her rulings creates a reasonable doubt about impartiality, absent any other indicia of bias or partiality. Nothing in the district court‘s rulings in this case provides a reasonable basis from which to infer partiality. The assigned judge properly denied the motion to disqualify.
CONCLUSION
For the foregoing reasons, we AFFIRM the dismissal of the complaint for lack of federal-question jurisdiction, we DISMISS AS MOOT the appeal from the order denying a preliminary injunction, we AFFIRM the denial of the motion to disqualify, and we VACATE the district court‘s dismissal for failure to join an indispensable party.