Hou 1778 Hawaiians et al v. United States Department of Justice
Filing
40
ORDER GRANTING MOTION TO DISMISS; ORDER DENYING AS MOOT MOTION SEEKING TO SEVER LANGUAGE FROM THE ADMISSION ACT re 13 , 31 - Signed by JUDGE SUSAN OKI MOLLWAY on 1/27/2016. "The court dismisses the Amended Complaint. Th e court allows Maui Loa to file a motion seeking leave to file a proposed Second Amended Complaint no later than February 29, 2016." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Chief Maui Loa served by first class mail at the address of record on January 27, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HOU 1778 HAWAIIANS; CHIEF
MAUI LOA,
)
)
)
Plaintiffs,
)
)
VS.
)
)
UNITED STATES DEPARTMENT OF
)
JUSTICE,
)
)
Defendant.
)
_____________________________ )
CIVIL NO. 15-00320 SOM/BMK
ORDER GRANTING MOTION TO
DISMISS; ORDER DENYING AS
MOOT MOTION SEEKING TO SEVER
LANGUAGE FROM THE ADMISSION
ACT
ORDER GRANTING MOTION TO DISMISS
I.
INTRODUCTION.
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires complaints to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
The
Amended Complaint, filed on October 19, 2015, is neither short
nor plain.
The court has attempted to discern what claim is
being asserted.
The Amended Complaint says that it is asserting
a single claim for a negligent breach of trust duties under the
Federal Indian Trust.
It alleges that Defendant the United
States Department of Justice breached those trust duties by
allowing benefits under the Indian Self-Determination and
Education Assistance Act of 1975 to lapse.
The Department of
Justice moves to dismiss the Amended Complaint, challenging this
court’s subject matter jurisdiction and also arguing that the
Amended Complaint fails to state a claim upon which relief can be
granted.
The court grants the motion based on lack of
jurisdiction.
Accordingly, the court denies as moot Plaintiffs’
Motion Asking Court to Order Specific Unconstitutional Language
in Hawaii Admission Act be Severed.
The court decides the
motions without a hearing pursuant to Local Rule 7.2(d).
II.
BACKGROUND.
The Hou 1778 Hawaiians are a group of native Hawaiians
who claim 50% or more native Hawaiian ancestry.
See Hou
Hawaiians v. Cayetano, 996 F. Supp. 989, 992 (D. Haw. 1998).
Chief Maui Loa, also known as Dr. Nui Loa Price, claims to be the
“hereditary, traditional government-style chief” of the Hou 1778
Hawaiians.
ECF No. 34, PageID # 176.
As chief, Maui Loa claims
title to all of the property that was allegedly taken from the
Hou 1778 Hawaiians by the United States.
See id.
The Amended Complaint alleges a solitary negligent
breach of trust claim.
The Amended Complaint states,
With respect to specific Indian land use of
the Hou and/or its Chief, the action alleges
negligence of specific responsibilities and
duties of defendant, US DoJ, as settlor of
the Federal Indian Trust (“the trust”), for
all Indians who are beneficiaries of the
trust, through being born as Indians in the
states of the United States. Including
states not in “the lower forty eight” and not
“continental” states, meaning the 49th and
50th states, Alaska and Hawaii, where Indians
are born.
See ECF No. 27, PageID # 106.
The Amended Complaint alleges that “[t]here are many
streams of the trust,” noting that this “action is not intended
2
to involve itself with any other stream of the trust.”
PageID # 107.
Id.,
According to the Amended Complaint, the “stream”
at issue here “originates in the Indian Self Determination Act
and flows directly to the Hou.”
Id., PageID # 108.
The Amended
Complaint alleges:
The trust was directed . . . to flow directly
to the Hou using the Indian Self
Determination Act (“Indian 638 grants”). The
Hou used the trust funds according to the
statute. The DoJ did not protect this use
against being used as an excuse for takings.
Id.
Plaintiffs have previously instituted numerous actions
in federal court, all unsuccessful.
See, e.g., Hou Hawaiians v.
Cayetano, 183 F.3d 945 (9th Cir. 1999); Price v. Akaka, 3 F.3d
1220 (9th Cir. 1993); Price v. State of Hawaii, 939 F.2d 702 (9th
Cir. 1991); Price v. State of Hawaii, 921 F.2d 950 (9th Cir.
1990); and Price v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985).
III.
STANDARD.
A.
Rule 12(b)(1).
Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a complaint may be dismissed for lack of subject
matter jurisdiction.
An attack on subject matter jurisdiction
“may be facial or factual.”
Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004).
A facial attack asserts that
“the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”
3
Id.
A factual
attack, on the other hand, “disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.”
Id.
If the moving party makes a facial challenge, the
court’s inquiry is “confin[ed] . . . to allegations in the
complaint.”
Savage, 343 F.3d at 1040.
taken by the court as true.
Those allegations are
Courthouse News Serv. v. Planet, 750
F.3d 776, 780 (9th Cir. 2014).
On the other hand, if the moving
party makes a factual challenge, the court may consider evidence
beyond the complaint and “need not presume the truthfulness of
the plaintiff’s allegations.”
Id.
“Once the moving party has
converted the motion to dismiss into a factual motion by
presenting affidavits or other evidence properly brought before
the court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of establishing
subject matter jurisdiction.”
Id. (quoting Savage v. Glendale
Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003))
(internal quotation marks omitted).
B.
Rule 12(b)(6).
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of the complaint.
Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).
If matters outside the
4
pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc.,
110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
Courts may “consider certain
materials–-documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice–-without converting the motion to dismiss into a
motion for summary judgment.”
United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
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factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555.
The complaint must “state a
claim to relief that is plausible on its face.”
Id. at 570.
“A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal,
556 U.S. at 678.
IV.
ANALYSIS.
A.
Maui Loa May Not Represent the Hou 1778 Hawaiians.
The Department of Justice argues that Maui Loa, a
nonlawyer proceeding pro se, cannot represent anyone but himself.
Thus, the Department of Justice says, Maui Loa may not represent
6
what he says is his tribe, the Hou 1778 Hawaiians (the “Hou”).
See ECF No. 31, PageID # 134.
In all courts of the United States, “parties may plead
and conduct their own cases personally or by counsel.”
U.S.C. § 1654.
See 28
However, the right to proceed pro se in civil
cases is a personal right.
See C.E. Pope Equity Trust v. United
States, 818 F.2d 696, 697 (9th Cir. 1987) (“Although a
non-attorney may appear in propria persona in his own behalf,
that privilege is personal to him. . . . He has no authority to
appear as an attorney for others than himself.” (citation
omitted)).
Maui Loa, as a pro se plaintiff, cannot represent the
Hou in this action.
See Simon v. Hartford Life, Inc., 546 F.3d
661, 664–64 (9th Cir. 2008) (applying the “general rule
prohibiting pro se plaintiffs from pursuing claims on behalf of
others in a representative capacity”).
This court considers only
claims relating to injuries personal to Maui Loa.
B.
The Court Dismisses the Amended Complaint.
The United States is immune from suit unless it
consents to waive sovereign immunity.
Lehman v. Nakshian, 453
U.S. 156, 160 (1981); United States v. Sherwood, 312 U.S. 584,
586 (1941); Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir.
2011).
The doctrine of sovereign immunity extends to agencies of
the federal government and federal employees acting within their
official capacities.
See Hodge v. Dalton, 107 F.3d 705, 707 (9th
7
Cir. 1997).
The Department of Justice, as an agency of the
United States, is protected from private lawsuits unless
sovereign immunity has been waived.
See Balser v. Dep’t of
Justice, Office of U.S. Tr., 327 F.3d 903, 907 (9th Cir. 2003)
(“[T]he district court properly construed the [plaintiffs’]
action against ‘The Department of Justice, Office of United
States Trustee’ as one against the United States.
As such, the
doctrine of sovereign immunity would apply unless waived by the
United States.”).
Any waiver of sovereign immunity must be unequivocally
expressed in statutory text and will not be implied.
Lane v.
Pena, 518 U.S. 187, 192 (1996); Tobar, 639 F.3d at 1195.
Morever, “statutes waiving the sovereign immunity of the United
States must be ‘construed strictly in favor of the sovereign.’”
Gasho v. United States, 39 F.3d 1420, 1433 (9th Cir. 1994).
The
party asserting federal subject matter jurisdiction bears the
burden of demonstrating “the source of the substantive law he
relies upon can fairly be interpreted as mandating compensation
by the Federal Government for the damages sustained.”
United
States v. Mitchell, 463 U.S. 206, 216–17 (1983) (citation and
internal quotations omitted).
Absent a waiver of sovereign
immunity, dismissal is required for lack of subject matter
jurisdiction over a claim against the United States.
Tobar, 639
F.3d at 1195; Orff v. United States, 358 F.3d 1137, 1142 (9th
8
Cir. 2004); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th
Cir. 1982).
It is Maui Loa’s burden to establish a waiver of
sovereign immunity with respect to his claim.
See Thompson v.
McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“A party invoking the
federal court's jurisdiction has the burden of proving the actual
existence of subject matter jurisdiction.”).
meet this burden.
Maui Loa does not
He does not clearly articulate the basis or
bases for any claimed waiver of sovereign immunity in any
document filed with this court.
At most, the Amended Complaint
attaches a memorandum that mentions a waiver of sovereign
immunity under the Tucker Act, the Indian Tucker Act, and the
Little Tucker Act.
See ECF No. 27-1, PageID #s 113-14.
The
court examines each of these acts.
The “Big Tucker Act,” codified as 28 U.S.C. § 1491,
confers jurisdiction on the Court of Federal Claims over certain
actions brought against the United States, waiving the
Government’s sovereign immunity for those actions.
U.S. v. Mitchell, 463 U.S. 206, 212–18 (1983).
See, e.g.,
Unless another
statute independently confers jurisdiction on another court,
jurisdiction over Tucker Act claims rests exclusively in the
Court of Federal Claims.
McGuire v. United States, 550 F.3d 903,
911 (9th Cir. 2008).
The “Indian Tucker Act,” codified as 28 U.S.C. § 1505,
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provides:
The United States Court of Federal Claims
shall have jurisdiction of any claim against
the United States accruing after August 13,
1946, in favor of any tribe . . . whenever
such claim is one arising under the
Constitution, laws or treaties of the United
States, or Executive orders of the President,
or is one which otherwise would be cognizable
in the Court of Federal Claims if the
claimant were not an Indian tribe, band, or
group.
28 U.S.C. § 1505.
The Indian Tucker Act is the counterpart to
the Tucker Act “for Indian claims.”
Skokomish Indian Tribe v.
United States, 410 F.3d 506, 511 (9th Cir. 2005).
As with the
Tucker Act, jurisdiction for claims arising under the Indian
Tucker Act rests exclusively in the Court of Federal Claims.
See
id. (transferring Indian Tucker Act claims on appeal to Court of
Federal Claims because Ninth Circuit lacked subject matter
jurisdiction over them).
The “Little Tucker Act,” codified as 28 U.S.C. § 1346,
provides a waiver of sovereign immunity with respect to claims
against the Government that are under $10,000:
The district courts shall have original
jurisdiction . . . of . . . any other civil
action or claim against the United States,
not exceeding $10,000 in amount, founded
either upon the Constitution, or any Act of
Congress, or any regulation of an executive
department, or upon any express or implied
contract with the United States.
28. U.S.C. § 1346 a(2) (emphasis added).
To qualify for a Little
Tucker Act waiver, a plaintiff’s claim “must be for money damages
10
against the United States,” and a plaintiff must show that the
“source of substantive law he relies upon can fairly be
interpreted as mandating compensation by the Federal Government
for the damages sustained.”
Supp. 2d 982 (D. Haw. 2006).
Matsuo v. United States, 416 F.
To determine whether this court has
jurisdiction over Maui Loa’s claims under the Little Tucker Act,
the court must first determine what claims are being asserted.
The Amended Complaint grounds its sole claim in the Federal
Indian Trust, which the Supreme Court has characterized as the
“obligation” that is
incumbent upon the Government in its dealings
with these dependent and sometimes exploited
people. In carrying out its treaty
obligations with the Indian tribes the
Government is something more than a mere
contracting party. Under a humane and self
imposed policy which has found expression in
many acts of Congress and numerous decisions
of this Court, it has charged itself with
moral obligations of the highest
responsibility and trust. Its conduct, as
disclosed in the acts of those who represent
it in dealings with the Indians, should
therefore be judged by the most exacting
fiduciary standards.
Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942)
(citations omitted).
The Amended Complaint alleges that the Department of
Justice breached this Federal Indian Trust with respect to its
actions under the Indian Self-Determination and Education
Assistance Act of 1975, Public Law 93-638.
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Maui Loa says that
the Hou used to receive “Indian 638 grants” under the Indian
Self-Determination and Education Assistance Act of 1975 and
alleges that the Department of Justice allowed those grants to
lapse, thereby breaching the United States’ moral obligation to
the Hou.
See ECF No. 27, PageID # 108.
Maui Loa’s claim
therefore appears to exceed the $10,000 limit in the Little
Tucker Act.
But even if the claim does not exceed the
jurisdictional limit, it is not viable.
The 1975 Indian Self-Determination and Education
Assistance Act, Public Law 93-638, authorizes Indian Tribes to
contract with the federal government to provide services.
See
Snyder v. Navajo Nation, 382 F.3d 892, 896 (9th Cir. 2004).
The
act was designed to reduce federal domination of Indian services.
Los Coyotes Band of Cahuilla & Cupeno Indians v. Jewell, 729 F.3d
1025, 1033 (9th Cir. 2013).
To that end, tribes may take over
the administration of programs offered by the Bureau of Indian
Affairs by submitting a contract proposal to operate a program as
a contractor, receiving the money that the bureau would have
otherwise spent on the program.
If approved by the Secretary of
the Interior, these contracts are known as “638 contracts.”
Id.
The Hou could not have received an “Indian 638 grant,”
or a “638 contract” as Maui Loa calls it, because no indigenous
groups from the State of Hawaii have been recognized as either a
“tribal organization” or “Indian tribe.”
12
See Kahawaiolaa v.
Norton, 386 F.3d 1271, 1274 (9th Cir. 2004); see also Price v.
Hawaii, 764 F.2d 623, 626-28 (9th Cir. 1985) (holding that the
Hou are not a federally recognized tribe that has
government-to-government relations with the United States).
Under the Federally Recognized Indian Tribe List Act of
1994, “the Secretary of the Interior is charged with the
responsibility of keeping a list of all federally recognized
tribes.”
Federally Recognized Indian Tribe List Act of 1994,
Pub.L. No. 103–454, § 103(6), 108 Stat 4791.
Section 479a–1 of
the List Act requires the Secretary to “publish in the Federal
Register a list of all Indian tribes which the Secretary
recognizes to be eligible for the special programs and services
provided by the United States to Indians because of their status
as Indians.”
25 U.S.C. § 479a–1 (emphasis added).
This court
takes judicial notice of the absence of the Hou from any list of
tribal entities recognized by the Secretary in the Federal
Register.
See Indian Entities Recognized and Eligible To Receive
Services From the United States Bureau of Indian Affairs, 80 Fed.
Reg. 1942 (Jan. 14, 2015); see also 44 U.S.C. § 1507 (“The
contents of the Federal Register shall be judicially noticed and
without prejudice to any other mode of citation, may be cited by
volume and page number.”); Friends of Amador Cty. v. Salazar, 554
F. App’x 562, 565 (9th Cir. 2014) (“But the court cannot simply
turn a blind eye to the Tribe’s status as a federally recognized
13
tribe in the Federal Register.” (citing 44 U.S.C. § 1507)); Crimm
v. Mo. Pac. R. Co., 750 F.2d 703, 710 (8th Cir. 1984) (“[a]
district court may take judicial notice of the Federal Register
and the Code of Federal Regulations”).
Although Maui Loa alleges that the Hou used to receive
“Indian 638 grants,” this court need not accept that allegation
as true because publicly published information establishes that
the Hou were never recognized as an Indian Tribe eligible for
such grants.
See Sprewell, 266 F.3d at 988 (“The court need not,
however, accept as true allegations that contradict matters
properly subject to judicial notice or by exhibit.”).
Nor is it clear that Maui Loa has a personal injury,
separate and apart of any alleged injury to the Hou, concerning
any grant.
Even if Maui Loa can be said to be seeking less than
$10,000 from the Department of Justice such that this court might
potentially have jurisdiction under the Little Tucker Act, the
Amended Complaint does not assert a plausible, viable claim.
Accordingly, it is dismissed.
V.
CONCLUSION.
The court dismisses the Amended Complaint.
The court
allows Maui Loa to file a motion seeking leave to file a proposed
Second Amended Complaint no later than February 29, 2016.
Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)
See
(“Dismissal of a pro se complaint without leave to amend is
14
proper only if it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.”) (quotation marks
and citation omitted).
Any proposed Second Amended Complaint
must be attached to any motion seeking leave to file it.
If Maui
Loa fails to timely file a motion for leave to file a Second
Amended Complaint, this action will be automatically terminated.
The court provides Maui Loa with some guidance with
respect to any motion seeking leave to file a Second Amended
Complaint.
First, any proposed Second Amended Complaint must be
complete in itself; it may not simply incorporate by reference
anything previously filed with this court or any other court.
Second, pursuant to Rule 8(a) of the Federal Rules of
Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
With respect to each claim, Maui Loa should describe
what the Department of Justice allegedly did in separate,
numbered paragraphs, including sufficient facts and references to
legal claims to put the Department of Justice on notice of why it
is being sued.
claim.
Complaints are the road map to a plaintiff’s
Accordingly, any proposed Second Amended Complaint should
clearly and concisely articulate the claim being asserted and the
basis or bases of this court’s jurisdiction, and should be
supported by sufficient factual detail to make the claim
15
plausible.
Third, Maui Loa may not represent anyone other than
himself.
This means that Maui Loa may not file claims belonging
to the Hou and claim that an attorney will later make an
appearance on the Hou’s behalf.
If the Hou’s claims are to be
before this court, the Hou’s claims must be presented by an
attorney in the first instance.
Because the court is dismissing the Amended Complaint,
the court denies Plaintiffs’ motion seeking to sever language
from the Admission Act as moot.
The court notes, in any event,
that this motion was unrelated to the sole claim asserted in the
Amended Complaint.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 27, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Hou 1778 Hawaiians, et al. v. United States Department of Justice, Civ. No.
15-00320 SOM/BMK; ORDER GRANTING MOTION TO DISMISS; ORDER DENYING AS MOOT
MOTION SEEKING TO SEVER LANGUAGE FROM THE ADMISSION ACT
16
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