Wopsock v. Natchees, 05-1494.

• Citation: 454 F.3d 1327
• Decision Date: 11 July 2006
• Docket Number: No. 05-1494.,05-1494.
• Parties: Ronald J. WOPSOCK, Luke J. Duncan, and Cassandra Kochamp, Plaintiffs-Appellants, v. Millicent Maxine NATCHEES, in her individual capacity and in her official capacity as Chairperson of the Tribal Business Committee of the Ute Indian Tribe of the Uintah and Ouray Indian Reservation, T. Smiley Arrowchis, in his individual capacity and in his official capacity as Vice-Chairman of the Tribal Business Committee, O. Roland McCook, Sr., in his individual capacity and in his official capacity as a member of the Tribal Business Committee, Richard Jenks, Jr., in his individual capacity and in his official capacity as a member of the Tribal Business Committee, John P. Jurris, and Susan Hammer, Defendants-Appellees, and Dirk Kempthorne, Secretary of the Interior, James Cason, Associate Deputy Secretary, Department of the Interior, Allen Anspach, in his official capacity as Acting Regional Director, Western Regional Office, Bureau of Indian Affairs, Chester D. Mills, in his individual capacity and in his official capacity as Superintendent, Uintah and Ouray Agency, Bureau of Indian Affairs, and Wayne Nordwall, in his individual capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

454 F.3d 1327

Ronald J. WOPSOCK, Luke J. Duncan, and Cassandra Kochamp, Plaintiffs-Appellants, v. Millicent Maxine NATCHEES, in her individual capacity and in her official capacity as Chairperson of the Tribal Business Committee of the Ute Indian Tribe of the Uintah and Ouray Indian Reservation, T. Smiley Arrowchis, in his individual capacity and in his official capacity as Vice-Chairman of the Tribal Business Committee, O. Roland McCook, Sr., in his individual capacity and in his official capacity as a member of the Tribal Business Committee, Richard Jenks, Jr., in his individual capacity and in his official capacity as a member of the Tribal Business Committee, John P. Jurris, and Susan Hammer, Defendants-Appellees, and Dirk Kempthorne, Secretary of the Interior, James Cason, Associate Deputy Secretary, Department of the Interior, Allen Anspach, in his official capacity as Acting Regional Director, Western Regional Office, Bureau of Indian Affairs, Chester D. Mills, in his individual capacity and in his official capacity as Superintendent, Uintah and Ouray Agency, Bureau of Indian Affairs, and Wayne Nordwall, in his individual capacity, Defendants-Appellees.

No. 05-1494.

United States Court of Appeals, Federal Circuit.

July 11, 2006.

David W. Scofield, Peters Scofield Price, P.C., of Salt Lake City, Utah, argued for plaintiffs-appellants.

Charles L. Kaiser, Davis Graham & Stubbs LLP, of Denver, Colorado, argued for defendants-appellees, Millicent Maxine Natchees, et al. With him on the brief was Charles A. Breer.

John A. Bryson, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees, Dirk Kempthorne, Secretary of the Interior, et al. With him on the brief were Matthew J. McKeown, Deputy Assistant Attorney General, and William B. Lazarus, Attorney.

Before RADER, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Ronald Wopsock, Luke Duncan, and Cassandra Kochamp brought this action in the United States District Court for the District of Utah against several officials of the Ute Indian Tribe and others associated with them ("the tribal defendants"), and against several federal officials, including the Secretary of the Interior ("the federal defendants"). The district court granted the tribal defendants' motion to dismiss the complaint and the federal defendants' motion for summary judgment. The plaintiffs appealed to this court. Because we conclude that this court lacks jurisdiction over the plaintiffs' appeal, we transfer the case to the United States Court of Appeals for the Tenth Circuit.

I

This case arises from a dispute within the Ute Indian Tribe concerning membership on the Tribe's Business Committee (the Tribe's governing body) and the rules and procedures for election to the Business Committee. Mr. Wopsock and Mr. Duncan are members of the Tribe who previously served as elected members of the Business Committee. Ms. Kochamp is a member of the Tribe who initiated a petition to recall certain members of the Business Committee.

While Mr. Wopsock and Mr. Duncan were serving on the Business Committee, the Tribe entered into a financial consulting agreement with defendant John Jurrius. Concerned about Mr. Jurrius's subsequent management of the Tribe's assets, Mr. Wopsock and Mr. Duncan filed an action in the district court against the Bureau of Indian Affairs ("BIA") and several BIA officials, charging them with breach of their fiduciary obligations to the Tribe.¹ Shortly thereafter, the Business Committee passed two resolutions to expel Mr. Wopsock and Mr. Duncan from the Committee. The Business Committee then enacted Ordinance 03-002, which barred any member who had been expelled from the Business Committee from running as a candidate for election to the Committee for a period of four years. Meanwhile, Mary Carol Jenkins began circulating a petition to recall defendant Millicent Maxine Natchees, the Chairperson of the Business Committee. The Business Committee then enacted Ordinance 03-004, which imposed additional requirements on recall petitions. Ms. Jenkins's recall petition was rejected for failing to comply with the new requirements.

On October 30, 2003, local BIA Superintendent Chester D. Mills approved Ordinances 03-002 and 03-004. In letters to both Superintendent Mills and BIA Western Division Director Wayne Nordwall, the plaintiffs appealed that approval. Superintendent Mills subsequently vacated his approval, explaining that "my approval of these two ordinances was not required by law, and in fact might be seen as an intrusion on the sovereignty of the Tribe." Director Nordwall similarly concluded that "the Superintendent's approval action was not needed and had no effect on the validity or invalidity of the resolution." Director Nordwall thus dismissed the plaintiffs' appeals. The plaintiffs appealed those decisions to the Interior Board of Indian Appeals ("IBIA").²

On August 3, 2004, the plaintiffs filed their first amended complaint, which included a total of eight counts. Count 5, of particular relevance here, alleged that the tribal defendants violated the Indian Civil Rights Act ("ICRA") by abridging the plaintiffs' rights to due process, equal protection, and freedom of speech. Count 5 also alleged that the federal defendants had breached their fiduciary duties by "fail[ing] to decline to recognize" the tribal defendants' actions, in violation of the Indian Reorganization Act ("IRA"), the ICRA, and the Administrative Procedure Act ("APA"). Under count 5, the plaintiffs sought declaratory and injunctive relief, as well as an award of money damages, pursuant to 28 U.S.C. § 1346(a)(2) ("the Little Tucker Act"), in the amount of $10,000 to each plaintiff.

Before the district court, the plaintiffs sought a temporary restraining order or a preliminary injunction that would prevent the tribal defendants from enforcing or recognizing Ordinance 03-002. The plaintiffs expressed their concern that, in the absence of the requested relief, Mr. Wopsock and Mr. Duncan would be precluded from seeking office in the Tribe's April 2005 election. The district court denied the request, and the plaintiffs appealed. The Tenth Circuit concluded that it lacked jurisdiction over the plaintiffs' interlocutory appeal because 28 U.S.C. § 1295 "provides the Federal Circuit with exclusive jurisdiction in appeals from final decisions if the district court's jurisdiction `was based, in whole or in part, on 28 U.S.C. section 1346.'" Wopsock v. Natchees, No. 05-4033 (10th Cir. Mar. 22, 2005) (transfer order). The Tenth Circuit therefore transferred the plaintiffs' interlocutory appeal to this court.

On April 7, 2005, this court issued an order denying the plaintiffs' motion for an injunction pending appeal. On May 17, 2005, both parties stipulated to dismissal of the plaintiffs' appeal of the district court's order, explaining that the Tribe's April 2005 election had occurred and that the plaintiffs' request for injunctive relief was therefore moot. On May 22, 2005, we granted the joint motion and dismissed the plaintiffs' interlocutory appeal. Wopsock v. Natchees, 134 Fed.Appx. 438 (Fed.Cir. 2005).

Thereafter, the district court dismissed all eight counts of the first amended complaint. The district court reasoned that it lacked jurisdiction over counts 1 through 7 because it "cannot reach plaintiffs' claims without first interpreting tribal law over which it lacks jurisdiction." Citing Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993), and Brown v. Reardon, 770 F.2d 896, 905-06 (10th Cir.1985), the court also explained that it failed "to find any allegation that any harm suffered by plaintiffs was motivated by invidious, class-based animus," as is required to maintain a claim under 42 U.S.C. § 1985(3).

The district court then provided additional reasons for dismissing the plaintiffs' claims. The court concluded that the plaintiffs' claims were not properly within the scope of the IRA because that statute is "not triggered by the mere fact a tribal election is being held or a purported change in the tribal constitution is alleged by individual tribal members." Rather, the court held, the IRA is only triggered "by an appropriate request by a tribe for federal involvement." The court further noted that the IRA does not impose upon the federal defendants the affirmative duties asserted by the plaintiffs. The district court observed that the plaintiffs "point to no aspect of tribal or federal law that requires the federal government to act but rather attempt to extend the law to create such duties."

The district court also noted that neither the tribal defendants nor the federal defendants had waived their sovereign immunity. Furthermore, the court observed that the plaintiffs had failed to exhaust both their federal remedies and their tribal remedies. The court explained that the plaintiffs' administrative claims were still pending before the IBIA and that the plaintiffs had failed to appeal their challenge against Ordinance 03-002 to the tribal appellate court and had never challenged Ordinance 03-004 in any tribal court. In those circumstances, the court ruled, dismissal was appropriate.

Finally, the district court addressed the plaintiffs' motion for leave to amend. The court explained that "[v]irtually contemporaneously with this Court's hearing on the motions to dismiss and for summary judgment, plaintiffs moved ... to file a second amended complaint." The court found that the "facts and claims sought to be asserted ... were known to plaintiffs when they filed their earlier complaints" and that "[p]laintiffs' amendments appear to be an attempt to avoid both this Court's prior rulings and arguments raised by defendants." The court therefore denied leave to amend the complaint.

II

This court has "exclusive jurisdiction... of an appeal from a final decision of a district court of...