United States District Court, D. South Dakota, Southern Division
KEVIN WRIGHT, acting Chairman, Lower Brule Sioux Tribal Council Member; SONNY ZIEGLER, Lower Brule Sioux Tribal Council Member; and DESIREE LAROCHE, Lower Brule Sioux Tribal Council Member, Plaintiffs,
ORVILLE RED LANGDEAU, Lower Brule Sioux Tribal Council Member; JOHN MCCAULEY, SR., Lower Brule Sioux Tribal Council Member; SALLY JEWELL, Secretary of United States Department of the Interior, JAMES TWO BULLS, Bureau of Indian Affairs Lower Brule Agency Superintendent, in his official capacity, and TIM LAPOINTE, Aberdeen Area BIA Director, in his official capacity Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS PLAINTFFS' COMPLAINT
DAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
Defendants, two Lower Brule Sioux Tribal Council members (tribal Defendants) and three United States government officials (government Defendants) (all Defendants collectively, "Defendants"), filed motions to dismiss Plaintiffs' Complaint pursuant to Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule of Civil Procedure 12(b)(6) for failure to state a claim, Doc. 15 and 18. For the following reasons, the motions are granted.
In December of 2014, the Lower Brule Sioux Tribal Council held a meeting wherein Plaintiffs attempted to ascertain the whereabouts of roughly $24 million in federal funding and how it could be that the current chief tribal judge was seated after allegedly being defeated during the election process. Plaintiffs allege that Defendants McCauley and Langdeau departed from the council meeting when such issues arose, refusing to answer. The Council was thereafter recessed and the current conflict arose.
Defendants herein (tribal court Plaintiffs) thereafter filed an action in tribal court on May 1, 2015 in order to remove Plaintiffs herein (tribal court Defendants) from their positions as tribal council members. The tribal court action was allegedly brought by Defendants in order "to stop the acting tribal chairman Kevin Wright from trying to inquiry (sic) or find out about the missing or unaccountable federal funds in amount over 24 million dollars." Complaint at 2. In addition, it is alleged that the tribal Defendants' attorney was supposed to provide legal services to each member of the tribal council, including Plaintiffs, but instead indicated in her court filings that she represented the "Tribe" without specifying any further. To rectify the perceived defect, presiding Tribal Judge, B.J. Jones, allowed the tribal Defendants herein to intervene as Plaintiffs in the tribal action. Plaintiffs herein further allege that the tribal Defendants have failed to remit court fees in accordance with tribal court procedure.
Plaintiffs allege that the issue revolving around the whereabouts of the federal funds was raised in both a petition for extraordinary writ of mandamus requesting the tribal appellate court judges to order Defendants to account for the funds and an interlocutory appeal arguing that the tribal court special judge abused his discretion by granting a request by the tribal Defendants for a TRO. According to Plaintiffs, the TRO was issued to prevent them from pursuing an affirmative defense of determining what happened to the federal funds and has an allegedly indefinite termination date. It is alleged in the Complaint that on February 16, 2015 special Tribal Judge, B.J. Jones, filed a judgment and order wherein it was determined that Plaintiffs had attempted to remove the tribal Defendants in violation of the tribal constitution.
Shortly after the May 1 st lawsuit was initiated, Plaintiffs filed a petition for extraordinary writ of mandamus and interlocutory appeal with the Lower Brule tribal appellate court. Plaintiff Wright received a remand order from the appellate court on May 22, 2015. On remand, the tribal court was instructed to examine the jurisdictional basis of the suit "in light of the Court's dismissal of the Tribe as a proper Plaintiff in the original case." Langdeau v. Wright, Lower Brule Sioux Tribal Court, CIV-14-12-0119 (May 27, 2015). This action followed on May 27, 2015.
In this federal action, Plaintiffs are alleging tribal Defendants Landeau and McCauley, Sr. allowed $24 million in federal funds to remain "missing or unaccountable." Plaintiffs assert this Court has jurisdiction pursuant to 28 U.S.C. § 1331, the Administrative Procedure Act (APA), and 28 U.S.C. § 1367. The Complaint contains three claims for relief: (1) an accounting from the Defendants regarding the $24 million in federal funds, (2) an order from the Court to compel government Defendants James Two Bulls and Tim LaPointe "to enforce their fiduciary duties to hold . . . [D]efendant[s]  Langdeau and  McCauley  to account for the missing federal funds, " and (3) an order from the Court compelling tribal Defendants Langdeau and McCauley to "open up the Lower Brule Tribal farm operations' financial records and all other documents that comprise the farms (sic) operation . . ." Currently before the Court are Defendants' motions to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction or, alternatively, failure to state a claim.
STANDARD OF REVIEW
"Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Craw Creek Sioux Tribe v. Bureau of Indian Affairs, 463 F.Supp.2d 964. 966 (D.S.D. 2006). "The party claiming federal subject matter jurisdiction has the burden of proving it exists.'" M.J. Farms, Ltd. v. U.S. Fish and Wildlife Service, 593 F.Supp.2d 907, 910 (W.D. La. 2008) (quoting People's Natl Bank v. Office of Comptroller of Currency, 362 F.3d 333, 336 (5th Cir. 2004)). "A party challenging subject matter jurisdiction under Rule 12(b)(1) must attack either the facial or factual basis for jurisdiction." Middlebrooks v. U.S., 8 F.Supp.3d 1169, 1173 (D.S.D. 2014) (citing Osborn v. U.S., 918 F.2d 724, 729 n. 6 (8th Cir. 1990)). Under a facial challenge, the reviewing court examines the complaint to determine if the plaintiff has satisfactorily alleged grounds for subject matter jurisdiction. Id. The nonmoving party is afforded the same protections she would receive were she defending against a Rule 12(b)(6) motion. Id. A factual challenge, on the other hand, tests the factual basis the nonmoving party has asserted for subject matter jurisdiction. Matters outside of the pleadings may be considered by the reviewing court and the nonmoving party is afforded no Rule 12(b)(6)-type protections. Id.
Under Rule 12(b)(6), the factual allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if it strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007), cited in Data Mfg., Inc. v. United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir. 2009). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). The complaint must allege facts, which, when taken as true, raise more than a speculative right to relief. Id. (internal citations omitted); Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). Although a plaintiff in defending a motion under Rule 12(b)(6) need not provide specific facts in support of its allegations, see Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), it must include sufficient factual information to provide the grounds on which her claim rests, and to raise a right to relief above a speculative level. Twombly, 550 U.S. at 555-556 & n. 3. Although Federal Rule of Civil Procedure 8 may not require "detailed factual allegations, " it "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim must have facial plausibility to survive a motion to dismiss. Id. Determining whether a claim has facial plausibility is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
I. Sovereign Immunity
"Under the doctrine of sovereign immunity, the United States cannot be sued without its consent." Middlebrooks, 8 F.Supp.3d at 1173 (citing U.S. v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). "The plaintiff has the burden of showing both a waiver of sovereign immunity and a grant of subject matter jurisdiction." Id. (citing V S Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000)). When the United States consents to suit, the boundaries of the court's jurisdiction are set by the terms of the sovereign immunity waiver. Id. (quoting U.S. v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986)). Plaintiffs did not respond to the United States' motion to dismiss. The Complaint, however, alleges three separate grounds for jurisdiction: (1) 28 U.S.C. § 1331, (2) ...