Mashpee Wampanoag Tribal Council, Inc. v. Norton

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

–————

No. 02–5139 September Term, 2002

01cv00111

Filed On: August 1, 2003

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

–————

BEFORE: GINSBURG, Chief Judge, and EDWARDS and

GARLAND, Circuit Judges.

ORDER

It is ORDERED, by the court, that the opinion filed

August 1, 2003, be amended as follows:

Page 11, delete the last sentence and insert in lieu thereof,

The judgment of the district court is reversed, and the case

is remanded to the district court for further proceedings not

inconsistent with this opinion.

PER CURIAM

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2003 Decided August 1, 2003

No. 02-5139

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

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

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Elizabeth A. Peterson and Silvia Sepulveda–Hambor, Attor-

neys, 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 bureau-

cratic 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)

3

(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 gla-

cial. 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 Re-

search & 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

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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 speci-

fied 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. Exclud-

ing 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 Decem-

ber 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

5

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 sug-

gested 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 Fed-

eral 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

6

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 relies. See, e.g., Talano v.

Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 760–

61 (7th Cir. 2001) (argument that district court ‘‘misapplied

fundamental principles of contract law’’ provides ‘‘no greater

specificity than saying nothing at all’’).

In sum, because we conclude that the Secretary’s motion

for reconsideration was both timely and sufficiently particu-

lar, the time for the Secretary to notice this appeal began to

run, pursuant to FRAP 6(a), only when the district court

denied the motion. The Secretary’s appeal is therefore time-

ly.

B. Unreasonable delay

We turn now to the district court’s conclusion that the BIA

failed to act upon Mashpee’s petition within a reasonable

time. But first a word about the district court’s jurisdiction.

The Secretary argues that because the BIA did not in its

regulations impose upon itself a ‘‘mandatory, nondiscretionary

duty to begin to consider the Mashpee petition’’ by a time

certain, the district court ‘‘lacked jurisdiction to exercise

7

mandamus to compel Interior to place the Mashpee petition

on active consideration.’’ That argument reflects a misunder-

standing of the nature of Mashpee’s claim.

Mashpee did not seek an order directing the BIA to comply

with its own regulations. Rather, Mashpee’s claim arose

under the Administrative Procedure Act, which imposes a

general but nondiscretionary duty upon an administrative

agency to pass upon a matter presented to it ‘‘within a

reasonable time,’’ 5 U.S.C. § 555(b), and authorizes a review-

ing court to ‘‘compel agency action unlawfully withheld or

unreasonably delayed,’’ id. § 706(1). Because no statute re-

stricts judicial review of the BIA’s recognition determinations

to the Courts of Appeals, compare TRAC, 750 F.2d at 77–78,

the district court had jurisdiction under 28 U.S.C. § 1331

(‘‘federal question’’) to determine whether the BIA was in

violation of § 555(b), and, if it was, to issue an appropriate

order pursuant to § 706. See Cutler v. Hayes, 818 F.2d 879,

887 n.61 (D.C. Cir. 1987); cf. TRAC, 750 F.3d at 79. See also

Costle v. Pacific Legal Foundation, 445 U.S. 198, 220 n.14

(1980).

Resolution of a claim of unreasonable delay is ordinarily a

complicated and nuanced task requiring consideration of the

particular facts and circumstances before the court. In

TRAC, we drew from our previous cases some factors usually

relevant to the inquiry. 750 F.2d at 80. They include: any

statutory timetable ‘‘or other indication of the speed with

which [the Congress] expects the agency to proceed’’; ‘‘the

nature and extent of the interests prejudiced by delay,’’ with

particular concern for matters of ‘‘human health and welfare’’;

and ‘‘the effect of expediting delayed action on agency activi-

ties of a competing or higher priority.’’ Id. We stated that

‘‘the time agencies take to make decisions must be governed

by a ‘rule of reason,’ ’’ and that ‘‘the court need not find any

impropriety lurking behind agency lassitude in order to hold

that agency action is unreasonably delayed.’’ Id. (citations

omitted); see also Cobell v. Norton, 240 F.3d 1081, 1096 (D.C.

Cir. 2001).

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The parties agree that the delay experienced by Mashpee

and other groups seeking recognition as a tribe is attribut-

able, at least for the most part, to a shortage of resources

addressed to an extremely complex and labor-intensive task.

Each petition is evaluated against a demanding set of regula-

tory criteria by a three-person team comprising an historian,

a cultural anthropologist, and a genealogist. At the time of

the GAO Report, there were 13 petitions under active consid-

eration and 10 more on the ‘‘ready’’ list. GAO Report, above,

at 15. Yet in the previous five years, the number of BIA staff

assigned to evaluate petitions had been on average fewer than

11. Id. at 16. The rise of the Indian gaming industry over

the last 15 or so years, see id. at 32–38, California v. Cobazon

Band of Mission Indians, 480 U.S. 202 (1987) (confirming

authority of tribes to establish gambling operations without

regard to state regulation), has only exacerbated the problem.

GAO Report at 29. In recent years, interested parties have

turned repeatedly to the Congress to request additional re-

sources, but to no avail. Id. at 2.

Thus is it that under the present system a petitioner waits

for years in the queue for active consideration. By the time

Mashpee filed this lawsuit, its petition had been on the

‘‘ready’’ list for five years and it was still only third in line.

Of course, other petitioners had been waiting longer for a

decision, and the Secretary claimed that because of the

agency’s limited resources any relief to Mashpee would neces-

sarily come at the expense of those applicants.

We have noted before the importance of ‘‘competing priori-

ties’’ in assessing the reasonableness of an administrative

delay. In re Barr Laboratories, Inc., 930 F.2d 72, 75 (1991),

we refused to grant relief, even though all the other factors

considered in TRAC favored it, where ‘‘a judicial order put-

ting [the petitioner] at the head of the queue [would] simply

move[ ] all others back one space and produce[ ] no net gain.’’

There the petitioner was one of many firms waiting for the

FDA to pass upon their applications to produce generic

drugs. There was no evidence the agency had treated the

petitioner differently from anyone else, or that ‘‘officials not

working on Barr’s matters TTT [were just] twiddling their

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thumbs.’’ Id. The problem stemmed from a lack of re-

sources; that, the court held, was ‘‘a problem for the political

branches to work out.’’ Id. The court also noted that

[t]he agency is in a unique — and authoritative —

position to view its projects as a whole, estimate the

prospects for each, and allocate its resources in the

optimal way. Such budget flexibility as Congress has

allowed the agency is not for us to hijack.

Id. at 76.

The district court recognized the force of Barr in this case:

‘‘Not only must BIA juggle competing duties under the

Acknowledgment Regulations and increasing collateral duties

with relatively limited resources, but the injury claimed by

Mashpee is applicable to all groups petitioning for acknowl-

edgment.’’ 180 F. Supp. 2d at 136 (citations omitted). In-

deed, the district court believed full ‘‘application of the TRAC

factors would TTT have dictated the denial of relief to the

Mashpee in this case: Congress knows about the situation

but has not yet taken definitive action to correct it, and BIA

is plugging along with its limited resources, business as usual,

doing the best it can.’’ Id.

Nevertheless, the district court declined to apply the ‘‘com-

peting priorities’’ factor because it believed that, by failing to

appeal a district court order in another case, Muwekma Tribe

v. Babbitt, 133 F. Supp. 2d 30 (D.D.C. 2000), in which a

petitioner was allowed to vault to the head of the queue, the

Secretary ‘‘essentially conceded that [this] otherwise disposi-

tive TTT factor TTT is of no weight at all.’’ Id.

The Secretary argues, as she argued in her motion for

reconsideration by the district court, that the court was

wrong to attach such significance to her predecessor’s failure

to appeal an adverse decision in another case. She points out

that the plaintiffs in Muwekma had a claim to expedited

review on the ground that their putative tribe previously had

been recognized. See 25 C.F.R. § 83.8 (exempting from all

other regulatory criteria petitioner that ‘‘provides substantial

evidence of unambiguous previous Federal acknowledg-

10

ment’’). Furthermore, the Secretary argues that there is no

legal basis — for example, in any estoppel doctrine — for

prohibiting her from pleading competing priorities and rely-

ing upon Barr in the present case.

Mashpee does not directly dispute the Secretary’s points.

It argues instead that the district court found as a fact the

BIA was ‘‘willing[ ] to allow one tribe to be moved ahead of

others,’’ and that finding is entitled to deference.

We agree with the Secretary that the district court erred

by disregarding the importance of there being ‘‘competing

priorities’’ for limited resources. The district court offered

no legal justification for precluding the Secretary from rely-

ing upon her ‘‘first-come’’ procedure, and we can conjure

none. If, as Mashpee suggests, the district court inferred

from the Secretary’s failure to appeal the Muwekma decision

that, as a matter of fact, the Department had abandoned its

interest in that procedure as a means of ordering its priori-

ties, then that finding was clearly erroneous. It should have

been clear to the district court from the different circum-

stances of the putative tribes in the two cases — as explained

by the Secretary in her motion for reconsideration — that

such an inference was unwarranted, especially on a motion for

summary judgment, in which the court may not rely upon any

but undisputed facts. In any event, the district court’s

approach was inconsistent with its obligation, in a case of

allegedly unreasonable delay, to examine ‘‘the facts of [the]

particular case’’ before it, Midwest Gas Users Ass’n v. FERC,

833 F.2d 341, 359 (D.C. Cir. 1987), and cannot be counte-

nanced in light of Barr and of the obvious significance of

competing priorities on the present record.

We shall therefore send the case back to the district court

for a full and fresh evaluation of whether the delay Mashpee

is encountering should be deemed ‘‘unreasonable.’’ The ulti-

mate issue, as in all such cases, will be whether the time the

BIA is taking to act upon the Mashpee’s petition satisfies the

‘‘rule of reason.’’ That issue cannot be decided in the ab-

stract, by reference to some number of months or years

beyond which agency inaction is presumed to be unlawful, but

11

will depend in large part, as we have said, upon the complexi-

ty of the task at hand, the significance (and permanence) of

the outcome, and the resources available to the agency.

Because we conclude that the district court’s finding of

unreasonable delay cannot stand, we need not address the

Secretary’s claim that the district court erred by requiring

the BIA to decide the petition within one year. We note,

however, that the requirement of a reviewing court under the

APA to ‘‘compel agency action unreasonably delayed’’ leaves

room for the district court to exercise discretion in determin-

ing how soon the agency must act. We also note that, if the

district court is unable to conclude that the delay to date has

been unreasonable, then it may nevertheless retain jurisdic-

tion over the case in order to monitor the agency’s assurances

that it is proceeding as diligently as possible with the re-

sources available to it. See TRAC, 750 F.2d at 80.

III. Conclusion

The Secretary’s appeal is timely. The district court erred

by holding the decision of the Secretary had been unreason-

ably delayed without first considering the BIA’s limited re-

sources and the effect of granting relief upon other equally-

deserving petitioners for recognition. The case is remanded

to the district court for further proceedings not inconsistent

with this opinion.

So ordered.