Vigil v. Rhoades

Decision Date28 August 1990
Docket NumberCiv. No. 86-1182-JB.
Citation746 F. Supp. 1471
PartiesGrover VIGIL and Charlene Vigil as General Guardians and Next Friends for Ashley Vigil, a Minor Person, and Kee Sandoval and Judy Sandoval as General Guardians and Next Friends for Kristofferson Sandoval, a Minor Person, and Angela C. Allen, as General Guardian and Next Friend for Angelo Allen, a Minor Person, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. Everett R. RHOADES, M.D., Director of the Indian Health Service, His Agents, Employees, and Successors, Otis R. Bowen, Secretary of the Department of Health and Human Services, His Agents, Employees, and Successors, the Department of Health and Human Services, Donald O. Hodel, Secretary of the Department of the Interior, His Agents, Employees, and Successors, Ross Swimmer, Assistant Secretary of the Interior-Indian Affairs, Bureau of Indian Affairs, United States Department of the Interior, His Agents, Employees, and Successors, the Department of the Interior, and the United States of America, Defendants.
CourtU.S. District Court — District of New Mexico

Joel R. Jasperse, Helen Avalos, Gallup, N.M., for plaintiffs.

William L. Lutz, U.S. Atty., Ron F. Ross, Raymond Hamilton, Asst. U.S. Attys., Albuquerque, N.M., for defendants.


BURCIAGA, Chief Judge.

THIS MATTER is before the Court on the Motion for Partial Summary Judgment filed December 30, 1987 by Plaintiffs, the Motion to Dismiss and in the Alternative for Summary Judgment Based on Lack of Jurisdiction filed December 30, 1987 by "federal" defendants and joined and supplemented February 3, 1988 by "interior" defendants, all responses thereto, and all replies to the responses. Having reviewed the pleadings, the evidence of record and the relevant law, the Court finds that Defendants' motions are not well taken and will be denied, and that Plaintiffs' motion is well taken and will be granted with relief limited to that set forth herein.

Over the extended history of this litigation, virtually no operative fact has escaped dispute by the parties. The Court's careful scrutiny of the record places at least this much beyond controversy: Using funds appropriated pursuant to the Snyder Act1, 25 U.S.C. § 13, the Bureau of Indian Affairs "BIA" and the Indian Health Service "IHS" jointly established and, for a time, operated, the Indian Children's Program "Program". This was an undertaking that directly provided a variety of health care support services to certain handicapped Indian children. The array of services included identification and diagnosis of the children and their handicaps, development and monitoring of treatment plans, "consultative visits" in children's home communities, training, and some clinical services such as physical therapy. Memorandum in Support of Plaintiffs' Motion for Summary Judgment at 1-3; Memorandum in Support of Defendants' Motion to Dismiss at 15-18. The Program was in place at least in preliminary form as early as 1979. See, e.g., Memorandum in Support of Defendants' Motion to Dismiss, Exhibit "G" Hearings Before the House Subcommittee on Appropriations, Department of the Interior and Related Agencies Appropriations for 1980, 96th Cong., 1st Sess., pt. 8, at 245-52. The evolving contours and exact details of the Program and its manner of operation are intricate and will be discussed only as relevant to the Court's individual rulings infra.

Over a period of several months beginning in July 1985, the Program was terminated,2 apparently at the immediate instance of IHS officials Kreuzberg and Vanderwagen. The termination was effected in a manner that Defendants concede did not comport with the requirements of the Administrative Procedure Act "APA", see Memorandum in Support of Defendants' Motion to Dismiss at 46, the applicability of which is one of the questions now before the Court. As of the termination of direct Program services in 1985, it was "currently following" some 426 children. Deposition of Sanchez at 44-46. According to Defendants, the decision to terminate the Program involved "redirecting staff efforts into a national data gathering and technical assistance role for the benefit of all IHS Areas and Service Units throughout the country." Memorandum in Support of Defendants' Motion to Dismiss at 2.

Plaintiffs thereafter commenced this action for declaratory and injunctive relief against the United States; the Department of the Interior, of which the Bureau of Indian Affairs is an agent; the Department of Health and Human Services, of which the Indian Health Service is an agent; and various officials of these entities. In particular, Plaintiffs seek a judicial declaration that the termination violated the federal trust responsibility to Indians, the Administrative Procedure Act, the Fifth Amendment, the Snyder Act, the Indian Health Care Improvement Act, and various other "rules and regulations;" and that the termination was arbitrary and capricious, an abuse of agency discretion, and contrary to law. Plaintiffs accordingly request an injunction compelling Defendants to provide essential health care support services to Plaintiffs and compelling Defendants to withdraw their termination of the Program. Plaintiffs also request "mandamus relief" compelling Defendants to: 1) undertake public notice and comment procedures before again terminating the Program; 2) implement a system to ensure optimum health for handicapped Indian children at service units in the Southwest; and 3) "develop and implement a national level policy with respect to their obligation to provide health and medical services to handicapped Indian children." Plaintiffs are a stipulated class consisting of:

all handicapped Indian children who in the past received, or who presently are, have been, or will be eligible to receive health services from the Indian Health Service in the Albuquerque area, Navajo area, and Hopi reservation portion of the Phoenix area, including health services formerly available through the Indian Children's Program.

Vigil v. Rhoades, Civil No. 86-1182-JB, Order certifying class pursuant to Fed.R. Civ.P. 23(b) (D.N.M. June 22, 1987).

Plaintiffs develop two theories in their bid to have the Court set aside the termination of the Program under the judicial review powers afforded by the Administrative Procedure Act "APA". They are, broadly: 1) that the termination violated the federal government's trust duty to Indians as expressed generally and in a number of statutory schemes, particularly the Snyder Act, the Education for All Handicapped Children Act, and the Indian Health Care Improvement Act; and, 2) that the manner of the termination violated the "notice and comment" provisions of the APA. Plaintiffs also claim that the termination violated their Fifth Amendment right to due process.3 Plaintiffs move for summary judgment as to certain of their requests for relief and on all but their constitutional claims.4 Defendants move for dismissal, arguing that Plaintiffs lack standing; that Plaintiffs fail to state a claim for relief because they lack specific substantive entitlement to Program services and hence assert no deprivation of any legally protected right; and that Plaintiffs are not entitled to the judicial review they seek. Alternatively, Defendants seek summary judgment upholding the termination as having a rational basis and as not being contrary to law, 5 U.S.C. § 706(2)(A), and determining that Plaintiffs' constitutional claims must fail for lack of any legitimate claim of entitlement to the services or procedure Plaintiffs seek.

The parties have framed substantial questions respecting Plaintiffs' standing to sue and the availability of judicial review of the administrative action terminating the Program. The Court resolves the standing issues in Part I of this Opinion and the reviewability issues in Part II. In Part III, the Court proceeds to the determination whether the termination of the Program violated the Administrative Procedure Act.


Of threshold significance are the Interior Defendants' tardily advanced arguments that the Plaintiff class is without standing to sue them. The arguments of these Defendants implicitly fuse the standing inquiry with the assessment of legal sufficiency of a claim under Federal Rule of Civil Procedure 12(b)(6). They must therefore be assessed with respect to both standards.

In general, "questions of standing in federal courts are to be considered in the framework of Article III which restricts judicial power to `cases' and `controversies.'" Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). In assessing questions of standing to bring suit challenging administrative action, the applicable analysis is twofold. The first inquiry is whether Plaintiffs have alleged that the challenged action has caused them "injury in fact, economic or otherwise." Id. at 152, 90 S.Ct. at 829. Then, the Court must determine whether "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. at 153, 90 S.Ct. at 830.

In contrast, a motion to dismiss under Rule 12(b)(6) focuses on the legal cognizability of a claim of injury. When considering a motion to dismiss, the material allegations of the Complaint must be accepted as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir.1967). The complaint is not to be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (emphasis added). The Court shall construe the pleadings liberally, and if there is any possibility of relief the case should not be dismissed. Gas-a-Car, Inc. v....

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4 cases
  • Lincoln v. Vigil
    • United States
    • U.S. Supreme Court
    • 24 Mayo 1993
    ...regulations, and the Fifth Amendment's Due Process Clause. The District Court granted summary judgment for respondents. Vigil v. Rhoades, 746 F.Supp. 1471 (NM 1990). The District Court held that the Service's decision to discontinue the Program was subject to judicial review, rejecting the ......
  • Serrato v. Clark
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 9 Mayo 2007
    ...The district court held IHS's decision was subject to judicial review and ordered the program reinstated. Id. (citing Vigil v. Rhoades, 746 F.Supp. 1471 (D.N.M.1990)). The Court of Appeals for the Tenth Circuit affirmed. Id. (citing Vigil v. Rhoades, 953 F.2d 1225 (10th Cir.1992)). A unanim......
  • Vigil v. Rhoades, 90-2235
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 15 Enero 1992
    ...and, as a legislative rule, was subject to the APA's notice and comment procedures as set forth at 5 U.S.C. § 553. Vigil v. Rhoades, 746 F.Supp. 1471 (D.N.M.1990). Given the IHS's concession that it did not provide notice and comment, the district court employed a traditional equitable anal......
  • Benten v. Kessler
    • United States
    • U.S. District Court — Eastern District of New York
    • 14 Julio 1992
    ...authorization ... has no effect on the applicability of the notice and comment requirement" to its termination. Vigil v. Rhoades, 746 F.Supp. 1471, 1481 (D.N.M.1990) (issuing injunction that terminated program be reinstated), aff'd, 953 F.2d 1225 (5th Cir.1992), pet. for cert. filed, 60 U.S......

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