Hanic v. Bureau of Indian Affairs et al
Filing
24
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 19 in full; granting 11 Motion to Dismiss. Signed by Judge Dana L. Christensen on 4/23/2015. Mailed to Hanic. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
APR 2 3 2015
Clerk, l:J.S. District Court
D1stnct Of Montana
Missoula
CV 14-216-M-DLC-JCL
DANIEL HANIC, and all others
similarly situated, et al.,
ORDER
Plaintiff,
vs.
BUREAU OF INDIAN AFFAIRS; and
DEPARTMENT OF THE INTERIOR,
Defendants.
United States Magistrate Judge Jeremiah C. Lynch entered his findings and
recommendations in this case on February 18, 2015, recommending that the
government's motion to dismiss pursuant to Rule 12(b)(l) of the Federal Rules of
Civil Procedure be granted and Plaintiff Hanic' s action be dismissed. Hanic
moved for an extension of time in which to file objections to the findings and
recommendations, and the Court granted him an additional forty-five days. Hanic
filed objections on March 26, 2015, within the extended time period, and so the
Court will conduct a de novo review of the record. 28 U.S.C. § 636(b)(l). The
portions of the findings and recommendations not specifically objected to will be
reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
-1-
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). "Where a [plaintiffs] objections
constitute perfunctory responses argued in an attempt to engage the district court
in a rehashing of the same arguments set forth in the original [complaint], the
applicable portions of the findings and recommendations will be reviewed for
clear error." Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(citations omitted). For the reasons listed below, the Court adopts Judge Lynch's
findings and recommendations in full.
Judge Lynch found that sovereign immunity did not preclude Hanic's
mandamus action regarding probate of his mother's estate. However, given the
Bureau of Indian Affairs' commencement of the probate process in March 2010,
Judge Lynch found that Hanic's claim is moot because the federal statutes and
regulations governing the Secretary of Interior's probate of an Indian person's
estate simply require that the Bureau of Indian Affairs begin the process and
prepare the probate file. 25 U.S.C. § 372; 25 C.F.R. § 15.11. The record reflects
that the Bureau of Indian Affairs has commenced the process, began preparing the
probate file, and, as ofNovember 2014, is attempting to track down Hanic's
mother's husband. Thus, Hanic's mandamus claim is moot because the very
action he seeks to compel through the federal mandamus statute, 28 U.S.C. §
1361, is already underway. See Heily v. US. Dept. ofDef, 896 F. Supp. 2d 25,
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35-36 (D.D.C. 2012).
In his first objection, Hanic contends that the mere commencement of the
process is insufficient - he seeks, of course, completion of the process and the
determination of his mother's heirs. However, as Judge Lynch noted, "there exists
no federal statutory or regulatory provision requiring that the [Bureau of Indian
Affairs] complete the probate process within a prescribed time frame," and thus no
way to compel the Bureau of Indian Affairs to complete the probate process
sooner. (Doc. 19 at 12 n.4.) The Court agrees with Judge Lynch and similarly
finds no authority to force the Bureau of Indian Affairs' hand here.
Furthermore, though conscious of its obligation to construe pro se filings
liberally, Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010), the Court finds no
reason to credit Hanic's second objection and permit him to amend his Complaint.
Adding Hanic' s proposed additional forms of relief - Court monitoring of, or an
injunction forcing, the probate process - would not cure the underlying defect, i.e.
that the Court has no statutory means for granting such relief and speeding up the
process. "A district court may deny leave to amend when amendment would be
futile." Hartmann v. Cal. Dept. of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir.
2013). Such is the case here.
Accordingly, IT IS ORDERED that Judge Lynch's findings and
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recommendations (Doc. 19) are ADOPTED IN FULL. The government's motion
to dismiss (Doc. 11) is GRANTED. This action is DISMISSED for lack of subject
matter jurisdiction, pursuant to 28 U.S.C. § 1361.
DATED this
23
yJ,
day of April, 201
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