Loa v. Lynch et al
Filing
27
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS re 16 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 12/6/2016. "Plaintiff is further GRANTED leave to file an Amended Complaint as to any claims relating to the reque sted relief. An Amended Complaint must be filed by January 6, 2017. If an Amended Complaint is not timely filed, the court will instruct the Clerk to close the action." (emt, )CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Maui Loa served by first class mail at the address of record on December 7, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Civ. No. 16-00446 JMS-KSC
MAUI LOA, individually and in his
capacity as Chief of the Hou 1778
Hawaiians, a native Hawaiian tribal
Indian band,
ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS
Plaintiff,
vs.
LORETTA LYNCH, in her official
capacity as ATTORNEY GENERAL of
the United States of America; SALLY
JEWELL, in her official capacity as the
Secretary of the Department of the
Interior of the United States of America,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
Pro se Plaintiff Maui Loa (“Maui Loa” or “Plaintiff”), who identifies
himself as a native Hawaiian and representative of the Hou 1778 Hawaiians (the
“Hou”), brings this action against Defendants Loretta Lynch and Sally Jewell in
their official capacities as Attorney General of the United States and Secretary of
the Department of the Interior of the United States, respectively. Plaintiff cites
many seemingly random statutes throughout the Complaint -- and, as a result, it is
1
difficult to understand exactly what Plaintiff seeks. In liberally construing the
Complaint, the court’s best interpretation is that Plaintiff is arguing that
Defendants failed to intervene when the state of Hawaii foreclosed on lands
belonging to him or the Hou.
Currently before the court is Defendants’ Motion to Dismiss, ECF No.
16. For the reasons that follow, the court GRANTS Defendants’ Motion.
II. BACKGROUND
A.
Factual Background
Plaintiff Maui Loa -- a native Hawaiian Indian and Chief of the Hou --
claims that the Hou received federal grants to purchase three plots of land on the
north shore of Oahu: 59-059 Pupukea Road, 59-254 Kamehameha Highway, and
59-051 Pupukea Road. Compl. ¶¶ 1, 16-3, 16-5, ECF No. 1. The federal grants
“identify the Hou as a federal Indian agency.” Id. ¶ 16-3.
The local government, “in collusion with hostile neighbors and
mortgage lenders,” fined and then foreclosed on the Hou’s properties. Id. ¶ 16-5.
The Hou sought relief from the Hawaii Homes Commission and Defendants, to no
avail. Id. ¶ 16-6.
The court notes that Plaintiff has brought many related cases in
federal court, none of which was successful. Hou 1778 Hawaiians v. U.S. Dep’t of
Justice, 2016 WL 335851, at *1 (D. Haw. Jan. 27, 2016); see, e.g., Hou Hawaiians
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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); Price v. State of Hawaii, 764 F.2d 623 (9th
Cir. 1985).
B.
Procedural Background
Plaintiff filed a Complaint on August 9, 2016, asserting ambiguous
claims against Defendants. Compl. ¶¶ 5-10, ECF No. 1. On October 12, 2016,
Defendants filed a Motion to Dismiss. Defs.’ Mot., ECF No. 16. On October 31,
2016, Plaintiff filed his Opposition brief, and on November 17, 2016, Defendants
filed their Reply brief. Pl.’s Opp’n, ECF No. 23; Defs.’ Reply, ECF No. 24. The
court decides the motion without a hearing pursuant to Local Rule 7.2(d). 1
III. STANDARD OF REVIEW
A.
Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss
claims over which it lacks proper subject matter jurisdiction. The court may
determine jurisdiction under Rule 12(b)(1) so long as “the jurisdictional issue is
[not] inextricable from the merits of a case.” Kingman Reef Atoll Invs., L.L.C. v.
1
On December 6, 2016, Plaintiff filed a Reply to Defendants’ Reply. ECF No. 26. But,
“Plaintiff[] did not seek leave of court to file what was effectively a sur-reply and neither the
Local Rules nor the Federal Rules of Civil Procedure permit sur-replies.” Seascape Dev. v.
Fairway Capital, 737 F. Supp. 2d 1207, 1213 n.6 (D. Haw. 2010). As a result, “[t]he court finds
that this filing is improper and does not consider it.” Id.
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United States, 541 F.3d 1189, 1195 (9th Cir. 2008). The moving party “should
prevail [on a motion to dismiss] only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter of law.” Casumpang
v. Int’l Longshoremen’s & Warehousemen’s Union, 269 F.3d 1042, 1060-61 (9th
Cir. 2001) (citation and quotation marks omitted); Tosco Corp. v. Cmtys. for a
Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001).
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack
such as the case here, the court may dismiss a complaint when its allegations are
insufficient to confer subject matter jurisdiction. When the allegations of a
complaint are examined to determine whether they are sufficient to confer subject
matter jurisdiction, 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). In such a
facial attack on jurisdiction, the court limits its analysis to the allegations of and
the documents attached to the complaint. See Savage v. Glendale Union High Sch.
Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
B.
Pro Se Pleadings
Because Plaintiff is proceeding pro se, the court liberally construes his
Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block,
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832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court also recognizes that
“[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint's deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir.
2013). A court may, however, deny leave to amend where further amendment
would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532
(9th Cir. 2008) (reiterating that a district court may deny leave to amend for,
among other reasons “repeated failure to cure deficiencies by amendments
previously allowed . . . [and] futility of amendment”).
IV. DISCUSSION
A.
Maui Loa Cannot Represent the Hou
Plaintiff recently brought a similar suit before Judge Susan Oki
Mollway. See Hou 1778 Hawaiian, 2016 WL 335851 (D. Haw. Jan. 27, 2016).
The court agrees with, and reiterates, Judge Mollway’s holding:
In all courts of the United States, “parties may plead and
conduct their own cases personally or by counsel.” See 28
U.S.C. § 1654. 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 nonattorney 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
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(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.
Id. at *3 (emphasis omitted).
And because the court will only consider claims relating to injuries
personal to Maui Loa, the court need not reach Plaintiff’s claim concerning the
Trade and Intercourse Act, 25 U.S.C. § 177 (the “Nonintercourse Act”). Compl.
¶¶ 104-06. Maui Loa admits that the title of the relevant land belongs to the Hou,
Compl. ¶¶ 16-1 to -8, and individual Indians cannot bring suit under the
Nonintercourse Act for land belonging to a tribe:
The common view of aboriginal title is that it is held by tribes.
Among the most important protections of aboriginal title were
the Trade and Intercourse Acts, which invalidated transfers of
title from tribes without the approval of the United States. Thus
individual Indians do not even have standing to contest a
transfer of tribal lands on the ground that the transfer violated
that statute.
United States v. Dann, 873 F.2d 1189, 1195-96 (9th Cir. 1989) (internal citations
and emphasis omitted). 2
B.
Lack of Subject Matter Jurisdiction
Defendants argue that “Plaintiff has not met his burden to establish
the subject matter jurisdiction of the Court” because “the Complaint in this case
2
The court makes no finding whatsoever as to whether the Hou constitutes an Indian
tribe under the Nonintercourse Act.
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does not state a basis for the waiver of the sovereign immunity of the Defendants.”
Defs.’ Mot. at 16. The court agrees.
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510 US 471, 475 (1994);
see also United States v. Navajo Nation, 556 U.S. 287, 289 (2009) (“The Federal
Government cannot be sued without its consent.”). This is a jurisdictional
question. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic
that the United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.”). The burden is on the party asserting
subject matter jurisdiction to “demonstrate that the source of substantive law he
relies upon can fairly be interpreted as mandating compensation by the Federal
Government for the damages sustained.” Id. at 216-17 (internal citations and
quotation marks omitted).
It is Plaintiff’s burden to establish that the federal government has
waived sovereign immunity, permitting this court to exercise jurisdiction over
Plaintiff’s case. 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.”). In conclusory fashion, Plaintiff argues:
The Federal Tort Claims Act and the Hawaiian Homes
Commission Act, 1921, and the Indian Self Determination Act
were designed to remedy hardship and suffering so [sic]
indicate that Congress did not intend that beneficiaries of these
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statutes would sustain injury in the course of federally approved
programs be barred from recovery under Sovereign Immunity.
Pl.’s Opp’n ¶ 17, ECF No. 23. The court liberally construes Plaintiff’s argument
as suggesting that the three named statutes waive the federal government’s
sovereign immunity here.
First, the waiver of sovereign immunity in the Indian SelfDetermination and Education Assistance Act (“ISDEAA”), Pub. L. 93-638, is
inapplicable here. See Demontiney v. United States, 255 F.3d 801, 805 (9th Cir.
2001) (“The ISDEAA’s waiver of federal sovereign immunity is limited to ‘selfdetermination contracts’ entered into by Indian tribes or tribal organizations and
the government.”). The ISDEAA does not apply to indigenous groups from
Hawaii, as they are not recognized by the federal government as either a “tribal
organization” or “Indian tribe.” Kahawaiolaa v. Norton, 386 F.3d 1271, 1281 (9th
Cir. 2004) (“[T]he ISDEA[A] excludes Hawaiian Native Americans . . . .
Congress has evidenced an intent to treat Hawaiian natives differently from other
indigenous groups.”); see also Indian Entities Recognized and Eligible to Receive
Services From the United States Bureau of Indian Affairs, 80 Fed. Reg. 1942 (Jan.
14, 2015) (listing recognized Indian entities and failing to mention the Hou); Price,
764 F.2d at 626 (“[N]either the Hou nor their governing body have been ‘duly
recognized’ by the Secretary[.]”).
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Second, the court does not have federal subject matter jurisdiction
over the Hawaiian Homes Commission Act (“HHCA”), 42 Stat. 108 (1921), claim
because it does not “arise under” the laws of the United States. KeaukahaPanaewa Cmty. Ass’n v. Hawaiian Homes Comm’n, 588 F.2d 1216, 1227 (9th Cir.
1978) (“We therefore conclude that the Commission Act claims do not arise under
federal law.”). Although the HHCA began as federal law, it became state law
when the Hawaii Admission Act (“Admission Act”), Pub. L. No. 86-3, 73 Stat. 5
(1959), adopted it into the Hawaii state constitution and Congress subsequently
deleted it from the United States Code. Id. § 4; see also Han v. U.S. Dep’t of
Justice, 45 F.3d 333, 339 (9th Cir. 1995); Keaukaha-Panaewa Cmty. Ass’n, 588
F.2d at 1219, 1226-27. Because claims under the HHCA arise solely under state
law, this claim doesn’t “arise under” federal law.
Third, Plaintiff briefly mentions the Federal Tort Claims Act
(“FTCA”), which “authorizes suits against the United States for damages for
personal injuries in situations where a private person would be liable under the law
where the act or omission causing the injuries occurred.” Richardson v. United
States, 943 F.2d 1107, 1110 (9th Cir. 1991) (citing 28 U.S.C. §§ 1346(b), 2674).
The FTCA’s waiver of sovereign immunity “is not available, however, when the
act or omission complained of is ‘based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a
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federal agency or an employee of the Government.’” Id. (quoting 28 U.S.C.
§ 2680(a)).
Plaintiff “has the burden of proving the actual existence of subject
matter jurisdiction,” Thompson, 99 F.3d at 353, and fails to meet that burden.
Plaintiff in no way explains how the FTCA applies to this case. The most the court
can infer is an argument that the FTCA applies because “the preventable injury by
Hawaii and Hawaiian law is primarily caused by [Defendants] through negligence
in not enforcing applicable existing federal Indian law actually protecting native
Hawaiian land use from takings by Hawaii.” Compl. ¶ 13, at 6. Even so, Plaintiff
does not show how “existing federal Indian law” imposes a non-discretionary duty
on Defendants, as required for a waiver of sovereign immunity under the FTCA.
Although not clear, it is possible Plaintiff is arguing that the FTCA’s
waiver of sovereign immunity applies because Defendants were negligent in not
enforcing the HHCA. See Pl.’s Opp’n ¶ 17 (grouping together the FTCA and
HHCA when discussing sovereign immunity). As discussed above, “the entire
[HHCA] program was turned over to the State of Hawaii” after Hawaii became a
state through the Admission Act. Keaukaha-Panaewa Cmty. Ass’n, 588 F.2d at
1226. The HHCA, as state law, cannot impose a non-discretionary duty on the
federal government.
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If Plaintiff mentioned the HHCA in an attempt to reference section
five of the related Admission Act,3 the Ninth Circuit has already rejected Plaintiff
on this point:
Section 5 of the Hawaii Admission Act, Pub. L. No. 86-3, 73
Stat. 4 (1959), granted to the State of Hawaii most of the lands
there held by the United States and declared that the lands
should be held as a public trust. The Act specified five
purposes of the trust and stated that the lands should be held for
one or more of the five specified purposes as the constitution
and laws of Hawaii should provide. The Act added: “their use
for any other object shall constitute a breach of trust for which
suit may be bought by the United States.” Pub. L. No. 86-3, 73
Stat. 4 § 5(f) (1959).
The Hou contend that this final phrase imposed a duty upon the
United States to sue the State of Hawaii if the state breached the
trust. The Hou contend that federal failure to act amounts to
such an abuse of discretion and such a failure to carry out the
policy of the statute that mandamus lies to compel the United
States to bring suit.
The immediate obstacle to this contention is the sovereign
immunity of the United States. That immunity has not been
waived by section 5. That immunity has not been waived by
the mandamus statute, 28 U.S.C. § 1361. See Washington
Legal Found. v. United States Sentencing Commission, 89 F.3d
897, 901 (D.C. Cir. 1996). The Administrative Procedure Act,
5 U.S.C. § 702, waives immunity only for claims alleging that
an official’s actions “were unconstitutional or beyond statutory
authority.” Swan v. Clinton, 100 F.3d 973, 981 (D.C.Cir.1996).
Under section 5, the United States has no duty to prosecute the
3
Plaintiff discusses the Admission Act under requested relief, Compl. ¶ 99, suggesting
that it is unconstitutional, id. ¶ 100. The court recognizes that section 5(f) of the Admission Act
creates an individual right enforceable through 42 U.S.C. § 1983, Day v. Apoliona, 496 F.3d
1027, 1039 (9th Cir. 2007), but that right is inapplicable here because it is limited to suits against
actors operating under the color of state law.
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State of Hawaii. See Han, 45 F.3d at 337. The federal
enforcement policy is not “so inadequate as to be beyond the
limits of [the federal defendants’] discretion.” Id. at 338. The
bar is absolute and fatal to the claim against the federal
defendants.
Hou Hawaiians v. Cayetano, 183 F.3d 945, 947 (9th Cir. 1999) (alteration in
original). Although the Ninth Circuit’s analysis was not specifically related to the
FTCA, its reasoning is applicable here. There is no non-discretionary duty that
permits application of the FTCA’s waiver of sovereign immunity.
In sum, Plaintiff has not met his burden to establish a waiver of
sovereign immunity and thus, he has not shown how the court has subject matter
jurisdiction to hear this case.
C.
Leave to Amend
The court has liberally construed the Complaint as bringing a claim
against Defendants for failure to intervene in the state’s foreclosure on the Hou’s
land. However, the court recognizes that, under the section titled “Relief” in the
Complaint, Plaintiff requests that the court “sever or otherwise correct language”
in the Admission Act and the Native American Programs Act (“Programs Act”),
Pub. L. 93-644, 88 Stat. 2291 (1975), and compel Defendant Sally Jewell to
approve a list of HEARTH Act 4 leases for the Hou. Compl. ¶¶ 99-109. The court
4
Plaintiff does not specify, but the court assumes Plaintiff is referring to the Helping
Expedite and Advance Responsible Tribal Home Ownership Act, Pub. L. 112-151, 126 Stat.
1150 (2012).
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treats these two possible categories of claims -- first, failure to intervene claims,
and second, possible claims related to Plaintiff’s requested relief -- separately.
1.
Failure to Intervene Claims
This is not the first time Plaintiff has brought these claims against
officials of the federal government. In Hou 1778 Hawaiians, Plaintiff sued the
Department of Justice (“DOJ”), claiming that the DOJ wrongfully took land from
the Hou under the ISDEAA, in addition to other related claims. 2016 WL 335851
at *1. Earlier this year, Judge Mollway dismissed Plaintiff’s Complaint with leave
to amend, and specifically provided Plaintiff with three instructions. First, to make
sure the Complaint is “complete in itself; it may not simply incorporate by
reference anything previously filed with this court or any other court.” Id. at *6.
Second, to make sure the Complaint “clearly and concisely articulate[d]” the claim
and basis of the court’s jurisdiction. Id. Third, to not file any further pro se claims
attempting to represent the Hou, as “the Hou’s claims must be presented by an
attorney in the first instance.” Id.
Here, Plaintiff brings another ISDEAA claim, despite Judge
Mollway’s earlier ruling that Maui Loa cannot bring such a claim because the Hou
are not a federally recognized Indian tribe. Id. at *5. Further, Plaintiff still tries to
allege facts by referencing past actions -- the action in front of Judge Mollway, in
fact -- instead of ensuring the Complaint is complete in itself. Moreover, Plaintiff
13
fails yet again to clearly articulate a basis for the waiver of sovereign immunity,
despite Judge Mollway’s earlier instruction that such a showing was necessary.
Finally, Plaintiff again attempts -- pro se -- to bring claims on behalf of the Hou,
despite Judge Mollway’s earlier ruling that he could not. Id. at *3.
A district court may deny leave for, among other reasons, “repeated
failure to cure deficiencies by amendments previously allowed.” Leadsinger, Inc.,
512 F.3d at 532. This court cannot ignore Plaintiff’s repeated failure to properly
state this claim. Consequently, the court GRANTS Defendants’ Motion to Dismiss
without leave to amend any claims relating to the federal government’s failure to
intervene.
2.
Remedies Listed in “Relief” Section
In Plaintiff’s “Relief” section, he requests three separate remedies:
1) “sever or otherwise correct language” in the Admission Act; 2) “sever or
otherwise correct language” in the Programs Act; and 3) compel the Secretary of
the Department of the Interior to “approve a list of HEARTH Act leases” for the
Hou. Compl. ¶¶ 99-109. Outside of this “Relief” section of the Complaint,
Plaintiff makes no mention of the Admission Act or the Programs Act. Although
Plaintiff does mention the HEARTH Act once outside of this section, that mention
merely mirrors Plaintiff’s requested relief. Compl. ¶ 15.
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Because there is no support for any of Plaintiff’s three requested
remedies, but the court is unaware of any previous claims requesting similar relief,
the court GRANTS Defendants’ Motion to Dismiss with leave to amend any
claims relating to the relief requested in Plaintiff’s Complaint.
V. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss, ECF
No. 16, is GRANTED. Plaintiff is further GRANTED leave to file an Amended
Complaint as to any claims relating to the requested relief. An Amended
Complaint must be filed by January 6, 2017. If an Amended Complaint is not
timely filed, the court will instruct the Clerk to close the action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 6, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Loa v. Lynch, Civ. No. 16-00446 JMS-KSC, Order Granting Defendants’ Motion to Dismiss,
ECF No. 16.
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