Mashpee Wampanoag Tribal Council, Inc. v. Norton

• Decision Date: 01 August 2003
• Docket Number: No. 02-5139.,02-5139.
• Citation: 336 F.3d 1094
• Parties: THE MASHPEE WAMPANOAG TRIBAL COUNCIL, INC., Appellee, v. Gale A. NORTON, Secretary, United States Department of the Interior, and Neal A. McCaleb, Assistant Secretary for Indian Affairs, United States Department of the Interior, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

336 F.3d 1094

THE MASHPEE WAMPANOAG TRIBAL COUNCIL, INC., Appellee, v. Gale A. NORTON, Secretary, United States Department of the Interior, and Neal A. McCaleb, Assistant Secretary for Indian Affairs, United States Department of the Interior, Appellants.

No. 02-5139.

United States Court of Appeals, District of Columbia Circuit.

Argued March 21, 2003.

Decided August 1, 2003.

As Amended August 1, 2003.

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Appeal from the United States District Court for the District of Columbia (No. 01cv00111).

Katherine J. Barton, Attorney, U.S. Department of Justice, argued the cause for appellants. With her on the briefs were Elizabeth A. Peterson and Silvia Sepulveda-Hambor, Attorneys, and Scott Keep, Attorney, U.S. Department of Interior.

Robert E. Jordan III argued the cause for appellee. With him on the brief was Cynthia Taub.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

This case involves a petition by Mashpee Wampanoag Tribal Council, Inc., for recognition by the United States as an Indian tribe. The Secretary of the Interior appeals an order of the district court finding the Bureau of Indian Affairs (BIA) unreasonably delayed acting upon the petition, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1), and requiring the Bureau to decide the matter within one year. Because we believe the district court misapplied the law of agency delay, we send the case back to the district court for further proceedings.

I. Background

A federally-recognized American Indian tribe is entitled to significant privileges, including exemption from state and local jurisdiction — including laws regulating gambling — and the right of its members to participate in an array of welfare programs. Although the Congress has recognized tribes through legislation in recent years, it is ordinarily up to the Secretary of the Interior, through a painstaking bureaucratic process, to determine whether the United States will recognize the sovereignty of a putative tribe. See generally 25 C.F.R. Part 83.

Mashpee is a corporation that represents the interests of some 1,500 residents of Cape Cod, Massachusetts. Its quest for federal recognition began in the 1970s, when it first notified the BIA of its intent to seek recognition. It filed a formal letter of intent, however, only in 1980. See 25 C.F.R. § 83.4. Then, perhaps because it was distracted by its efforts to gain recognition through litigation, see, e.g., Mashpee Tribe v. Sec'y of the Interior, 820 F.2d 480, 482 (1st Cir.1987) (seeking recognition and title to certain lands pursuant to Indian Nonintercourse Act, 25 U.S.C. § 177), Mashpee did not file its petition with the BIA for another decade (in September 1990). After an initial review, the BIA's Branch of Acknowledgment and Recognition (BAR) in July 1991 sent Mashpee a "letter of obvious deficiency" requesting additional information. See 25 C.F.R. § 83.10(b). Mashpee took four and a half years to respond. Upon receipt of the response in January 1996, the BAR notified Mashpee that it was placing the petition on its list of applications "ready, waiting for active consideration."

The "ready" list is a queue, with priority established on a first-come basis. No statute or regulation specifies how quickly the queue must move along — in contrast to the timeframe for processing a petition once it is under active consideration, see id. §§ 83.10(h)-(l) — and the pace is glacial. As of August 2001 there were 10 petitions on the list, six of which had been waiting there for at least five years. U.S. Gen. Accounting Office, Indian Issues: Improvements Needed in Tribal Recognition Process 15 (2001). The GAO estimated that it could take 15 years to resolve all the petitions then awaiting active consideration. Id. at 16.

Frustrated by that prospect, Mashpee sued the Secretary, claiming unreasonable delay in violation of the APA and seeking an order compelling the BIA to act upon the petition. The district court, after weighing the considerations relevant to such a claim, as summarized in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) (TRAC), granted summary judgment for Mashpee, ordered the BIA immediately to place Mashpee's petition on active consideration, and required the Secretary to issue a final decision within one year. Mashpee Wampanoag Tribal Council, Inc. v. Norton, 180 F.Supp.2d 130, 136-37 (D.D.C.2001). The Secretary appeals.

II. Analysis

The Secretary disputes the district court's jurisdiction to hear Mashpee's claim of unreasonable delay, its conclusion that the BIA had not acted upon Mashpee's petition within a reasonable time, and its order compelling the BIA to take a decision within one year. Before we consider those issues, however, we must consider Mashpee's claim that this appeal is untimely.

A. Timeliness

The Secretary filed a notice of appeal 55 days after the district court denied her motion for reconsideration of the summary judgment order. Ordinarily that would satisfy the appellate filing deadline. See Fed. R.App. P. 4(a)(4)(A)(iv) (60-day time period in which to file appeal runs from entry of order disposing of motion to alter or amend judgment). In this case, however, Mashpee argues the Secretary may not invoke the tolling provision of FRAP 4 because her motion for reconsideration was both untimely, see Fed.R.Civ.P. 59(e) (setting 10-day deadline), and defective in that it did not "state with particularity the grounds therefor," see Fed.R.Civ.P. 7(b)(1).

A motion under Rule 59(e) must be filed within 10 days of the challenged order, not including weekends, certain specified national holidays (including Christmas Day and New Year's Day), or "any other day appointed as a holiday by the President." Fed.R.Civ.P. 6(a). In this case, the district court granted summary judgment on December 21, 2001. The Secretary filed her motion on January 9, 2002. Excluding weekends, Christmas Day, and New Year's Day, that was 11 days after the court issued its order.

Whether the Secretary's motion for reconsideration was timely, therefore, depends upon whether Christmas Eve should also be excluded from the computation as a "day appointed as a holiday by the President." As the Secretary points out, President Bush directed that "all executive branch departments and agencies of the Federal Government shall be closed and their employees excused from duty" on December 24, 2001, with exceptions for national security. Exec. Order No. 13,238, 66 Fed.Reg. 63,903 (Dec. 5, 2001). The President's order also provided that December 24 would fall within the scope of various laws governing holiday pay and leave for federal workers. Id. By virtue of the executive order, the Secretary maintains, Christmas Eve was a "day appointed as a holiday by the President."

We have not previously had occasion to consider whether a day has been "appointed as a holiday" within the meaning of Rule 6(a), and the parties have been unable to cite any particularly helpful authority, albeit not for want of trying. True, as Mashpee points out, the Seventh Circuit has suggested that for the President to declare a "holiday" he must use that word. See Latham v. Dominick's Finer Foods, 149 F.3d 673, 674 (1998). But the actual holding in that case was that the disputed motion was timely because the courthouse was closed on the day in question — as it was in this case. On the precise issue before us, whether a day on which the President closes the offices of the Executive Branch qualifies as a "legal holiday" under Rule 6(a), neither Latham nor any other case cited by the parties provides much guidance.

The purpose of the rule, however, is guidance enough. Rule 6 generally is intended to provide "reasonable flexibility concerning the measurement of time periods under the Federal Rules of Civil Procedure," 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1161 (3d ed.2002); Rule 6(a) specifically is intended to alleviate the "hardship" of allowing days of rest to shorten already tight deadlines, Fed. R.Civ.P. 6 advisory committee's note. When the President gives all employees in the Executive Branch a day off, we believe Rule 6(a) contemplates a break for federal litigators. To penalize the Secretary (rather drastically, by dismissing her appeal) because the President did not use the word "holiday" in the executive order would quite plainly run counter to the purpose of the Rule. We conclude that Christmas Eve, 2001 should be excluded in calculating the 10-day period within which the Secretary had to file her motion; hence, the motion was timely.

We also find the Secretary's motion for reconsideration sufficiently particular to toll the deadline for filing an appeal. Because of the tolling function of certain motions, there is good reason to ensure they not be devoid of content, filed only to stop the clock. Here, as Mashpee argues, the bulk of the Secretary's motion for reconsideration was dedicated to explaining why the Secretary needed another week to file her supporting memorandum.

The motion was not so devoid of detail, however, as to fall below the standard of specificity set by Rule 7, namely, that a motion shall "state with particularity the grounds therefor." The Secretary objected, on the ground that the issue was not briefed, to

the Court's conclusion that "[b]y failing to appeal from Judge Urbina's order [in another recognition case], BIA essentially conceded that the otherwise dispositive fourth TRAC factor — the effect of expediting delayed action on agency activities of a higher or competing priority — is of no weigh [sic] at all."

By claiming that a specific holding of the district court was erroneous, and stating at least one basis for its claim of error, the Secretary provided more detail than was held insufficient in the cases upon which Mashpee...