Opinion

Jones v. United States

122 Fed. Cl. 490
2015 U.S. Claims LEXIS 975
2015 WL 4598343

Court: United States Court of Federal Claims
Filed: Jul 30, 2015
Status: Published
Author: Horn
On the bench: Marian Blank Horn
Cited by: 9 cases
Authority: More cited than 62.9%

"The court, however, cannot infer from the absence of prosecutions that all the FBI and BIA actions were taken permissibly.”

How later courts described this case

"The court, however, cannot infer from the absence of prosecutions that all the FBI and BIA actions were taken permissibly.”
“The court also notes, however, that defendant is correct that the ‘bad men’ provision does not include, as plaintiffs[ ] suggest[,] the universe of off-reservation activities that would have occurred but for the initial conduct on the reservation.”
overturned on other grounds

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 13-227L

July 30, 2015

* * * * * * * * * * * * *

DEBRA JONES, et al., *

* Motion to Dismiss; Lack of

Plaintiffs, * Subject Matter Jurisdiction;

v. * Failure to State a Claim;

* Exhaustion of Administrative

UNITED STATES, * Remedies; Issue Preclusion;

* 1868 Ute Treaty; “Bad Men”

Defendant. * Provision.

* * * * * * * * * * * * * *

Frances C. Bassett, Fredericks Peebles & Morgan LLP, Louisville, CO, for

plaintiffs. With her were Sandra L. Denton and Todd K. Gravelle, Fredericks Peebles &

Morgan LLP, Louisville, CO.

Jody H. Schwartz, Trial Attorney, Environment and Natural Resources Division,

Department of Justice, Washington D.C., for defendant. With her were Kenneth D.

Rooney, Trial Attorney, Environment and Natural Resources Division, and John C.

Cruden, Assistant Attorney General, Environment and Natural Resources Division,

Department of Justice.

OPINION

HORN, J.

FINDINGS OF FACT

On April 1, 2013, plaintiffs filed their complaint in the United States Court of Federal

Claims.1 Plaintiffs allege that on April 1, 2007, “Utah State Trooper Dave Swenson sent

1 The plaintiffs are “Debra Jones and Arden C. Post, individually and as the natural

parents of Todd R. Murray; Debra Jones, as personal representative of the Estate of Todd

R. Murray, deceased, for and on behalf of the heirs of Todd R. Murray, and the Ute Indian

Tribe of the Uintah and Ouray Reservation.” Plaintiffs Jones and Post are the biological

parents of Todd R. Murray, a 21-year old member of the Ute Indian Tribe, whose death

is the basis for the above captioned case, filed against the United States for violation of

a radio dispatch from his patrol car advising the Utah central Police Dispatch that he was

pursuing a car containing ‘two tribal males’ for a speeding violation.” Trooper Swenson

later testified2 that the vehicle was traveling 74 miles per hour in a 65 mile an hour zone.

The driver of the vehicle was 17-year-old Uriah Kurip, and his lone passenger was the

decedent, 21-year-old Todd Murray. The alleged speeding violation occurred just outside

the boundary of the Ute Tribe’s Uncompaghre Reservation in Utah. In what Trooper

Swenson later testified he viewed as an attempt to evade police pursuit, Mr. Kurip turned

off U.S. Highway 40, onto State Road 88, an intersection located more than two miles

outside the boundary of the Uncompahgre Reservation. Although Trooper Swenson

began his pursuit off the Uncompaghre Reservation, the pursuit carried into the

Uncompaghre Reservation, land held by the Ute Indians, and ended 25 miles south of

the intersection of U.S. 40 and State Road 8 at the intersection of Seep Ridge Road and

Turkey Track Road, an intersection also inside the boundary of the Uncompaghre

Reservation. Once stopped, Mr. Kurip and Mr. Murray exited their vehicle and stood on

either side of the vehicle. The amended complaint reflects that Trooper Swenson testified

that he exited his vehicle with his gun drawn and ordered the two to the ground. Mr. Kurip

and Mr. Murray exchanged looks and Trooper Swenson repeated the command two or

three times, after which Mr. Kurip and Mr. Murray ran from their vehicle in opposite

directions. Trooper Swenson pursued Mr. Kurip on foot and quickly apprehended him.

Responding to Trooper Swenson’s earlier radio dispatch requests for help, off-duty

Vernal City police officer Vance Norton was next to arrive on the scene, dressed in street

clothes and driving his personal vehicle. Officer Norton set off on foot in pursuit of Mr.

Murray. Utah Highway Patrol Trooper Craig Young and Uintah County Deputy Anthoney

Byron subsequently joined in the search. Officer Norton later testified he eventually

encountered Mr. Murray as Mr. Murray was rounding a hill. According to the amended

complaint, Officer Norton testified he saw Mr. Murray before Mr. Murray saw him. Officer

Norton allegedly raised his gun and shouted, “POLICE—GET TO THE GROUND.”

(capitalization in original). Also, according to the amended complaint, Officer Norton

recalled seeing something in Mr. Murray’s hand, but admitted that he could not tell what

was in Mr. Murray’s hand. Defendant indicates in its motion to dismiss that it was later

determined Mr. Murray was carrying an illegally purchased .380 caliber handgun. Further,

according to plaintiffs’ amended complaint, Officer Norton indicated Mr. Murray raised his

hand and fired shots, and Officer Norton, in turn, fired two rounds at Mr. Murray. The

amended complaint states that “Norton alleges that Murray then turned the gun on himself

and pulled the trigger. Officer Norton contacted dispatch, advised that shots had been

fired and that Murray had shot himself.” “At the time of the shooting, Officers Byron and

Young state they were approaching from the south with their firearms drawn. Officers

Byron and Young worked together to handcuff Murray.” Plaintiffs contend that Trooper

the Ute treaties and federal statutes and breach of trust in violation of the Ute treaties

federal statutes.

2 Although the amended complaint repeatedly refers to “testimony” by multiple individuals,

the amended complaint does not indicate how or under what circumstances the

“testimony” was taken.

Swenson, Officer Norton, “Defendant” Byron, and “Defendant” Young3 are not cross-

deputized by the federal government or the Ute Tribe to exercise law enforcement powers

over Native Americans inside the Ute Tribe’s Reservation.4

After the shooting, a number of other officers arrived at the scene, including

Special Agents Rex Ashdown and David Ryan with the Federal Bureau of Investigation

(FBI) and various officials from the Bureau of Indian Affairs (BIA). In their amended

complaint, plaintiffs allege that the FBI and BIA officers “ostensibly assumed jurisdiction

of the scene” because “the shooting scene was in Indian Country,” yet “[t]he FBI and BIA

officers on the scene were complicit in the State officers’ improper assertion of

jurisdictional authority over the shooting site.” Plaintiffs further allege that Raymond

3 Although plaintiffs refer to Officers Young and Bryon as “defendants” in the amended

complaint, the only proper defendant in the United States Court of Federal Claims is the

United States. See Rule 10(a) of the Rules of the United States Court of Federal Claims

(RCFC) (2014) (“The title of the complaint must name all the parties . . . , with the United

States designated as the party defendant.”). The United States Supreme Court has

indicated that for suits filed in the United States Court of Federal Claims and its

predecessors, “[i]f the relief sought is against others than the United States the suit as to

them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood,

312 U.S. 584, 588 (1941) (citation omitted) Slattery v. United States, 635 F.3d 1298, 1321

n.1 (Fed. Cir.), aff’d, 710 F.3d 1336 (Fed. Cir.), cert. denied, 134 S. Ct. 1276 (2014); May

v. United States, 80 Fed. Cl. 442, 444 (“Jurisdiction, then, is limited to suits against the

United States.”), aff’d, 293 F. App’x 775 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.

Cir. 2008). Stated differently, “the only proper defendant for any matter before this court

is the United States, not its officers, nor any other individual.” Stephenson v. United

States, 58 Fed. Cl. 186, 190 (2003) (emphasis in original); see also United States v.

Sherwood, 312 U.S. at 588; Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.), reh’g

denied (Fed. Cir. 1997); Hover v. United States, 113 Fed. Cl. 295, 296 (2013) (“As an

initial matter, it is well settled that the United States is the only proper defendant in the

United States Court of Federal Claims.”); Warren v. United States, 106 Fed. Cl. 507, 510-

11 (2012) (“It is well settled that the United States is the only proper defendant in the

Court of Federal Claims.”). Therefore, the court only refers to the United States as the

defendant in the above captioned case.

4Plaintiffs amended the complaint after defendant filed a motion to dismiss the complaint.

Plaintiffs allege in the amended complaint:

Murray was shot after being pursued at gun-point by two Utah state

Highway Troopers, a Uintah County Sheriff’s Deputy, and an off-duty Vernal

City, Utah, police officer. The pursuit took place over tribal trust lands more

than 25 miles inside the northern boundary of the U&O Reservation. The

four shooting-involved officers had no criminal jurisdiction over Indians

inside the U&O Reservation. The officers also had no probable cause to

believe that Todd Murray had committed any crime.

(internal citation omitted).

Wissiup, a member of the Ute Tribe and a certified law enforcement officer was excluded

from the scene. In addition, plaintiffs contend that the law enforcement officers did not

segregate, question, or search the officers involved in Mr. Murray’s shooting, nor properly

process their firearms.

At 11:30 a.m., immediately following the shooting, “Officer Norton contacted

dispatch, advised that shots had been fired and that Murray had shot himself.” Plaintiffs

allege that an ambulance did not arrive on the scene until 12:02 p.m., and further allege

that prior to its arrival, Mr. Murray was alive, but no state or federal officer provided him

medical aid. According to the amended complaint, when the ambulance arrived on the

scene, Mr. Murray’s “breathing was labored, his limbs were twitching, and he was

unconscious. There was a copious amount of blood around his head.” The ambulance

transported Mr. Murray to Ashely Valley Medical Center, where he was pronounced dead

at 1:19 p.m. According to the amended complaint, the “FBI and the BIA officers then

allowed the Utah state, county and municipal officers to transport Murray’s body to the

Thomson-Blackburn Vernal Mortuary (Mortuary) in Vernal, Utah, for holding overnight

until the body could be transported to the Utah State Medical Examiner’s office for an

autopsy the next day.”

Plaintiffs contend that the FBI and BIA officers “took no action to secure Todd

Murray’s remains or the crime scene itself.” Plaintiffs also assert that “municipal officers

present at the medical center proceeded to violate Murray’s dignity and to tamper with

the physical evidence.” While at the hospital, plaintiffs allege that Mr. Murray’s body was

unnecessarily and inappropriately disrobed, manipulated, and photographed. Officer

Byron was allegedly photographed with his finger inserted in Mr. Murray’s head wound.

Plaintiffs assert that BIA Officer Kevin Myore was present at the medical center and

“condoned and participated in, or failed to prevent, the illegal and unethical desecration

of Mr. Murray’s remains and the spoliation of critical evidence.” Plaintiffs also claim that

“Special Agent Ashdown took no action to secure and preserve Mr. Murray’s body at the

Mortuary” and instead was “complicit in the additional acts of horrific desecration and

evidence tampering that took place at the Mortuary.” Further, plaintiffs claim that the

Vernal City Police Chief Gary Jensen “admits” to inserting a needle into Mr. Murray to

draw blood, and allege that “Chief Jensen then allegedly directed a mortuary employee

to make an unauthorized incision to Murray’s jugular vein, from which two vials of blood

were purportedly drawn, although neither the Utah state nor the federal law enforcement

officers have ever accounted for the blood vials drawn from Murray’s body at the

Mortuary.” Plaintiffs also contend, “[n]either the Mortuary, nor any law enforcement

officers, obtained the permission of Mr. Murray's next of kin to desecrate Todd Murray’s

remains in this manner.”

The amended complaint states that Mr. Murray’s body was next transported to the

Utah Office of the Medical Examiner. The Utah Office of the Medical Examiner allegedly

“elected to forego an autopsy and to perform only a simple external examination of Mr.

Murray’s body.” Plaintiffs indicate that:

OME’s [Utah Office of the Medical Examiner’s] final pathological diagnosis

was that the entrance wound on Mr. Murray's head was on the lateral left

scalp and the exit wound was on the upper posterior right scalp. Thus, the

gunshot wound that killed Todd R. Murray entered on the left side of Mr.

Murray's head and exited on the right side of Mr. Murray's head.

(emphasis in original). Plaintiffs further note that the Utah Office of the Medical Examiner

reported that Mr. Murray arrived with his hands “bagged” and that no soot was found on

either of Mr. Murray’s hands, his left hand was clean and free of any debris or blood, and

his right hand was bloody. Moreover, plaintiffs allege that “the FBI officers and the BIA

officers allowed the Utah Medical Examiner’s Office to list the cause of Todd Murray’s

death as a suicide, when the Medical Examiner himself later testified that he could not

rule out the possibility that Todd Murray was shot in the back of his head execution style.”

Plaintiffs, therefore, challenge Officer’s Norton version of events and state that “Todd

Murray did not shoot himself execution-style in the back of his head.” (emphasis in

original).

In addition, plaintiffs contend that “all of the evidence the FBI and BIA officers were

responsible for—and that would have been of a dispositive nature in this case—has been

destroyed or altered,” and that, throughout, the FBI and BIA officers disregarded proper

investigatory procedure and preservation of evidence. Specifically, plaintiffs contend that

the firearm that Mr. Murray allegedly fired during his encounter with Officer Norton was

destroyed by the FBI and not forensically tested and that Mr. Murray’s person or clothing

were never forensically tested. Plaintiffs contend the same regarding preservation and

forensic testing of Officer Norton’s firearm, personal vehicle, person, and clothing.

Plaintiffs further contend that Officer Norton was not sequestered, but was allowed free

access to the scene of the shooting, thereby giving Officer Norton the “opportunity to

tamper with the physical evidence.” Plaintiffs also allege other failures, including lack of

documentation of the scene, failure to administer medical aid to Mr. Murray, improper

handling of, and tampering with, Mr. Murray’s body at the medical center, mortuary, and

Utah Office of the Medical Examiner, resulting in “significantly altered and potentially

destroyed critical evidence,” and failure by the Utah Office of the Medical Examiner to

perform an autopsy of Mr. Murray’s body.

According to the complaint, “[t]hree weeks after the shooting, members of Todd

Murray’s family met with FBI Agent Ashdown.” Plaintiffs allege that “[t]he family members

explained to Agent Ashdown that Todd Murray was a right-handed individual; they told

Ashdown it would have been impossible for Murray to shoot himself in the back of the

head, above and behind his left ear.”5 Mr. Murray’s family urged Special Agent Ashdown

to investigate and revisit the circumstances of Mr. Murray’s death. According to plaintiffs,

Special Agent Ashdown “promised the family members that the FBI would conduct a full

investigation” yet despite this promise, the United States has never conducted a civil or

5 According to the amended complaint, “Agent Ashdown admitted to the family members

that it would be impossible for a right-handed individual to shoot himself in the back of the

head, above and behind his left ear.”

criminal investigation into “the actions of any single individual” involved in the

circumstances surrounding Mr. Murray’s death, nor of the investigatory and preservation

procedures immediately following. Plaintiffs contend that Special Agent Ashdown later

admitted under oath that he conducted no investigation into the shooting of Mr. Murray

largely because of his long-standing relationship with Officer Norton.

On July 17, 2009, Debra Jones, individually, as the natural parent of Todd Murray,

and as personal representative of the Estate of Todd R. Murray for and on behalf of Mr.

Murray’s heirs, and Arden Post, individually and as the natural parent of Todd Murray,

filed suit in the Uintah County Court regarding the death of Mr. Murray. See Jones et al.

v. Norton et al., 3 F. Supp. 3d 1170 (D. Utah 2014).6 The plaintiffs brought suit in the

District Court and asserted civil rights claims under 42 U.S.C. § 1983 (2006) and 42

U.S.C. § 1985 (2006) against Uintah County and the City of Vernal, and against law

enforcement officers, in their individual, as well as in their official, capacities. Plaintiffs

sought upwards of $3,000,000.00 in damages. “In their § 1983 claims against the

Individual Defendants, the Plaintiffs allege illegal seizure, excessive force, and failure to

intervene to prevent the officers' unconstitutional acts. Under § 1985, they allege

conspiracy to obstruct justice and conspiracy to violate Mr. Murray's civil rights based on

racial animus.” Jones et al. v. Norton et al., 3 F. Supp. 3d. at 1177. Plaintiffs alleged

additional numerous causes of action, including illegal seizure, use of excessive force,

assault/battery, and wrongful death. Subsequently, the suit was removed to the United

States District Court for the District of Utah on August 20, 2009.

On March 12, 2013, while the District Court case was pending, plaintiffs mailed a

letter to senior officials at the United States Department of the Interior, giving notice of

their intent to file suit against the United States. The letter was titled “Notice of Claim

concerning the April 1, 2007 Shooting Death of Todd Murray, Ute Indian tribal member.”

The letter states:

Dear Messrs. Toulou, Smith, and Washburn and Secretary of the Interior:

Our law firm represents the Ute Indian Tribe of the Uintah and Ouray

Reservation (“Tribe” or “Ute Tribe”). We also represent tribal members

Debra Jones and Arden Post who are the parents of Todd Murray, a tribal

member who was shot to death in an encounter with Utah state and local

police on the Uintah and Ouray Indian Reservation in Utah (“U&O

Reservation”) in 2007. Please accept this letter as our notice of claim to

your respective agencies of our intent to file a complaint against the United

States based on breaches of the 1863 and 1868 Ute Treaties and the United

States’ violation of its trust obligations to the Ute Tribe and its members.

We plan to file suit in the Federal Court of Claims and allege that the Federal

Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and

through their employees, committed wrongs upon the person or property of

6 The Ute Indian Tribe was not a party to the District Court litigation.

the Indians, namely decedent Todd Murray his family and the Ute Indian

Tribe as a whole. Included with our letter are the Plaintiffs’ (i) Third

Amended Complaint, (ii) motion for default judgment on liability based on

tampering [sic] destruction of critical evidence, and (iii) motion for summary

judgment under Counts 1, 3 and 5 filed in the parents’ private cause of

action, DEBRA JONES, et al., v, VANCE NORTON, et al., Civil Case No.

2:09-cv-00730, U.S. District Court, District of Utah, Central Division.

The attached filings give an overview of the sequence of events that

transpired on April 1, 2007 as well as a clear indication of the egregious

actions of the law enforcement officers who participated in this

“investigation.” The FBI and the BIA representatives who were present on

April 1, 2007 and who participated in the “investigation” contributed to the

travesties by (1) failing to protect the Ute Tribe’s interests as a sovereign in

the crime scene, (2) failing to properly preserve and protect evidence from

being tampered with and destroyed, and (3) failing to conduct their own

independent investigation into the death of Todd Murray. As a result of the

aforementioned failures, the Murray family and the Ute Indian Tribe are

seeking damages from the United States in the amount of $10 million, as

well as reimbursement of litigation costs and attorney fees.

Attached to this letter is a summary of the relevant Treaty obligations that

have been violated by the actions and inactions of the United States in this

case. Under Article 6 of the 1863 Treaty, the Ute Indian bands agreed to

forego "private revenge or retaliation" for injuries suffered by the Tribe and

individual tribal members as the result of the “misconduct of individuals.” In

return the United States guaranteed the Tribe and individual tribal members

a right to legal redress for "any robbery violence, or murder" committed "on

an Indian or Indians" belonging to the Ute Indian bands. Article 6 of the 1868

Treaty promised that any person violating the territorial integrity of the

Reservation and causing harm to the Tribe or its tribal members would be

"punished according to the laws of the United States." In violation of these

treaty obligations, the United States has failed to investigate or to prosecute

the individuals involved in the shooting death of 21 year-old Todd Murray in

April 2007, and the subsequent conspiracy to suppress, alter, and destroy

critical evidence.

Please feel free to contact our office should you require any additional

information regarding this forthcoming claim.

Sincerely,

Sandra L. Denton

(footnote omitted). The March 12, 2013 letter attached almost four hundred pages of

exhibits, including filings in the District Court such as the plaintiffs’ third amended

complaint, the motion for summary judgment, and plaintiffs’ motion for allegedly the

tampering and destruction of critical evidence.

On March 7, 2014, the District Court granted the defendant’s motion for summary

judgment, and denied plaintiffs’ cross motion. See Jones et al. v. Norton et al., 3 F. Supp.

3d 1170. On April 1, 2014, plaintiffs appealed the District Court’s decision to the United

States Court of Appeals for the Tenth Circuit. See Jones et al. v. Norton et al., No. 14-

4040 (10th Cir. appeal docketed Apr. 1, 2014). On November 18, 2014, plaintiffs filed

another appeal to the United States Court of Appeals for the Tenth Circuit, appealing the

Distric Court’s amended judgment. See Jones et al. v. Norton et al., No. 14-4144 (10th

Cir. appeal docketed Nov. 18, 2014).7 To date, the Tenth Circuit has not issued a decision

on plaintiffs’ appeal.

In the District Court case, the Court considered whether Mr. Murray was “seized”

for 4th Amendment purposes.8 Most relevant to the above captioned case, “[t]he Plaintiffs

contend that Detective Norton seized Mr. Murray when he (1) fired shots at Mr. Murray;

and (2) according to Plaintiffs, shot Mr. Murray in the head.” Jones et al. v. Norton et al.,

3 F. Supp. 3d at 1189. The District Court determined that “[t]he record does not support

their claim and no reasonable jury could find against Detective Norton,” and that “[t]he

evidence clearly shows that Mr. Murray shot himself.” Id. at 1189, 1190. The District Court

also determined:

[T]he Plaintiffs' evidence is sparse, circumstantial, subject to more than one

interpretation, and, at times, very speculative. Moreover, evidence to the

contrary is strong and is consistent with a self-inflicted gunshot wound.

Deputy Byron testified that he did not see Detective Norton next to Mr.

7On October 15, 2014, the District Court amended its judgement “to reflect the award of

costs” to the defendants. See Jones et al. v. Norton et al., No. 2: 09–CV–730–TC, 2014

WL 909569 (D. Utah Oct, 15, 2014).

8 As indicated by the District Court:

The Plaintiffs contend that officers Norton, Young, Byron, and Swenson

seized Mr. Murray on the Reservation and so a violation of Mr. Murray's

Fourth Amendment rights necessarily occurred. They focus on the following

events: (1) Trooper Swenson's order to Mr. Kurip and Mr. Murray to stop

after the car chase ended and the men got out of the car; (2) the forming of

a police perimeter to entrap Mr. Murray; (3) Detective Norton firing at Mr.

Murray twice; (4) when Detective Norton's bullet allegedly entered Mr.

Murray's head; and (5) Deputy Byron handcuffing Mr. Murray while Trooper

Young pointed his gun as cover for Deputy Byron.

Jones et al. v. Norton et al., 3 F. Supp. 3d at 1186 (footnotes omitted).

Murray when Mr. Murray dropped to the ground. Detective Norton testified

that he was up on a hill when he saw Mr. Murray shoot himself.

The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the

physical examination of Mr. Murray's body, concluded in his report that the

wound was caused by a gun shot “in close proximity to the skin surface

when it was discharged.” He based his conclusion on “abundant soot at the

inferior margin of the defect [the wound] and some marginal abrasion is also

noted at the inferior margin.” In his testimony, he elaborated on his

conclusion that the gun was in contact with Mr. Murray's head when it was

fired:

At the perimeter, there are several triangular shaped tears of

the wound. That's a result of the gun being pressed up against

the skin surface when it's discharged and gases causing the

scalp to be separated from the underlying skull. When the

scalp lifts up, it stretches and it tears and gets its characteristic

stellae appearance.

The smaller wound on the right side of Mr. Murray's head was, in Dr. Leis'

opinion, the exit wound. After Dr. Leis certified that Mr. Murray's death was

a suicide resulting from a gunshot wound to the head, he added an

additional cause of death (based on results from testing of Mr. Murray's

bodily fluids). Because the tests showed the presence of drugs and alcohol

in Mr. Murray's system, Dr. Leis issued an amended death certificate which

added “Acute alcohol intoxication; recent methamphetamine use” as

contributing to Mr. Murray's death.

Detective Norton was more than 100 yards away when Mr. Murray was

shot. Dr. Leis testified that there was no evidence that the wound could have

been caused by a shot coming from that far away. Plaintiffs maintain that

Detective Norton was not 100 yards away, but was right next to Mr. Murray

and so he had the capability of inflicting the contact wound. But the actual

evidence in the record (that is, testimony by Detective Norton and Deputy

Byron) shows that Detective Norton was not right next to Mr. Murray when

the fatal shot was fired.

Id. at 1190-91 (footnotes omitted).

The District Court noted that plaintiffs also alleged the defendant conspired to

cover up the killing of Mr. Murray, stating, “[s]ummed up, Plaintiffs’ argument is that

Defendants engaged in ‘[a] conspiracy to cover up a killing.’ Plaintiffs’ theory is that

Detective Norton shot and killed Mr. Murray, and that the rest of the Defendants conspired

to cover-up that killing and protect Detective Norton.” Id. at 1197 (footnotes omitted).

Addressing the plaintiffs’ alleged conspiracy, the court stated: “The focus of the Plaintiffs’

conspiracy theory is the failure to give aid and their spoliation argument about the

destruction of evidence.” Id. at 1202.

Turning to plaintiffs’ claims of the defendants’ failure to give medical aid to Mr.

Murray, and the defendants’ “interference with Mr. Murray's due process right of access

to courts via the failure to preserve critical evidence and the affirmative destruction of

critical evidence,” the District Court determined,

[n]one of that testimony could allow a reasonable jury to conclude that

Individual Defendants were deliberately indifferent to Mr. Murray's situation,

or that they knew that there was a substantial risk of significant harm to Mr.

Murray if they did not provide first aid. If anything, the evidence shows that

at least three of the Individual Defendants (Young, Davis, and Slaugh) were

concerned that attempts to provide any kind of aid to Mr. Murray would do

more harm than good.

Id. at 1210. The District Court stated: “[i]n sum, there is no evidence before the court to

support a finding that the inaction by each individual defendant was part of a conspiracy

to let Mr. Murray die.” Id. at 1203. The District Court also determined that, “[b]ased on the

facts as detailed and explained in its spoliation order, the court concludes that no

reasonable jury could conclude that Defendants conspired to ‘effectively eliminate[ ] all

probative evidence’ and ‘clean the closet of evidence that would have allowed Plaintiffs

to build their case.’”9 Id. at 1204 (quoting various plaintiffs’ briefs; omissions in original;

footnote omitted). Therefore, the District Court concluded that “the Defendants did not

violate Mr. Murray's civil rights for failing to provide medical aid, nor did the Defendants

fail to preserve evidence.”10 Id. at 1210 (footnote omitted).

9 In relation to plaintiffs’ claim that defendants’ conspired to violate Mr. Murray's civil rights,

the District Court explained that the plaintiffs asked “the court to infer the existence of

such a conspiracy (much like they asked the court to infer racial animus) from a handful

of facts and the Plaintiffs' speculative characterization of those facts as so ‘brazen and

flagrant’ and ‘unjustifiable and irrational’ that they support a finding of conspiracy.” Jones

et al. v. Norton et al., 3 F. Supp. 3d. at 1201 (footnote omitted).

10The defendants’ alleged failure to preserve evidence was discussed in detail in the

District Court’s spoliation order. See Jones et al. v. Norton et al., No. 2: 09–CV–730–TC,

2014 WL 909569. For instance, the plaintiffs argued that “critical evidence was lost

because Mr. Murray's hands were not bagged properly and Mr. Murray's body was not

properly preserved because the body bag was incorrectly sealed.” The District Court,

however, determined, that:

There is no evidence to show that Mr. Murray's hands were bagged

improperly. Plaintiffs argue that Mr. Murray's hands must have been

improperly bagged because some photographs showed his hands bagged

and others did not, but there is no evidence to show who, when, and where

On April 1, 2013, approximately three weeks after plaintiffs mailed the March 12,

2013 letter to the Department of the Interior officials, giving notice of their intent to file suit

in this court, and exactly six years after Todd Murray’s death, plaintiffs filed suit in this

court. Plaintiffs’ suit in this court was consistent with the information submitted in the

March 12, 2013 letter.

In response, defendant filed a motion to dismiss, pursuant to RCFC 12(b)(1) and

RCFC 12(b)(6), alleging lack of subject matter jurisdiction and failure to state a claim.

Notably, defendant argued that “[i]n addition to the various individuals identified in the

Complaint, Plaintiffs aver that the FBI, BIA, the State of Utah, Unitah County, Vernal city,

and various non-federal enforcement agencies are ‘bad men’ as that term is used in the

treaties.” According to defendant, “[t]he federal government and various state

enforcement agencies, however, cannot be ‘bad men’ as that term is used in the treaties.”

Plaintiffs subsequently moved to amend the complaint, and in support of their

motion stated:

The Plaintiffs’ proposed amendments [sic] correct the pleading deficiencies

cited by the United States in its motion to dismiss the complaint. The

amendments include additional factual allegations to make clear the

substance of the Plaintiffs’ allegations, and to make clear that Plaintiffs

sought administrative review of Todd Murray’s shooting death before filing

this action. The amendments also make clear that Plaintiffs’ claims are

based on the actions and inactions of individual federal officers, not the

actions or inactions of the federal agencies employing those officers, i.e.,

the Federal Bureau of Investigation and the Bureau of Indian Affairs.

The court granted plaintiffs’ motion, after which plaintiffs filed an amended

complaint. Plaintiffs’ amended complaint, which asserts numerous claims for relief,

alleges that the United States committed cognizable wrongs upon Mr. Murray and the Ute

Tribe. According to plaintiffs’ amended complaint, the United States, by and through the

conduct of the FBI and BIA, violated the guarantees of two Ute Treaties, entered into and

signed in 1863 and 1868. Plaintiffs also advance a breach of trust claim for the same

alleged violations and injustices. For these alleged injuries, plaintiffs seek compensatory

damages in the amount of $10,000,000.00, as well as costs, attorney’s fees, “and all other

damages permitted by the Treaties with the Utes, and such other and further relief as this

Court deems proper.”

Specifically, plaintiffs’ claims for relief, set forth in the amended complaint, are: “I.

VIOLATION OF THE UTE TREATIES AND OTHHER [sic] FEDERAL LAWS,” and “I. [sic]

Mr. Murray's hands were bagged, or when the bags were removed. And

there is no evidence to show that the body bag was sealed.

Id. at *11.

BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL

LAW.” (capitalization in original). Within the alleged “VIOLATION OF THE UTE

TREATIES AND OTHHER [sic] FEDERAL LAWS,” (capitalization in original) plaintiffs

allege:

By their actions and inactions, the FBI and BIA officers committed wrongs

to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert

with state/county/municipal officers, expressly or impliedly, in concocting, or

permitting to be concocted, a false story that Todd Murray shot himself in

the back of his head, execution style, above and behind his left ear; (ii) by

failing to take custody of Murray’s body and to secure the body against

desecration and spoliation of evidence; [sic] (iv) by participating in, tacitly

allowing, or failing to prevent, the desecration of Murray’s body and the

spoliation of critical evidence both at the shooting scene and afterwards at

the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the

failure to insure that a proper autopsy was performed on Murray’s body; (vi)

by failing to conduct any kind of investigation into Todd Murray’s murder;

and (vii) by failing to protect the territorial integrity of the Tribe’s reservation

boundary and the Tribe’s sovereign interests in the crime scene where

Murray was shot.[11]

(emphasis in original).

Regarding the “BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES

AND OTHHER [sic] FEDERAL LAW,” (capitalization in original) plaintiffs claim that “[i]n

violation of federal law and its treaty obligations, the United States has failed to investigate

or prosecute the individuals involved in the shooting death of 21 year-old Todd Murray on

April 1, 2007, or the subsequent conspiracy to suppress, alter, and destroy critical

11The court notes that preceeding the list of allegations in plaintiffs’ amended complaint,

plaintiffs also claim:

In April 2007, Todd Murray, Todd Murray’s family, and the Ute Indian Tribe

suffered “injuries” at the hands of “bad men” as those terms are used in the

Ute Treaties of 1863 and 1868. These injuries include (i) the extra-territorial

police pursuit, assault upon and murder of Todd Murray, (ii) the conspiracy

to cover up Todd Murray’s murder, (iii) the failure of federal officers to take

custody of Murray’s body and to secure the body against desecration and

spoliation of evidence; (iv) the desecration of Murray’s body and the

spoliation of critical evidence both at the shooting scene and afterwards at

the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the

failure to insure that a proper autopsy was performed on Murray’s body;

[sic] (vii) failure of federal officers to conduct any kind of investigation into

Todd Murray’s murder; and (vi) the failure of federal officers to protect the

territorial integrity of the Tribe’s reservation boundary and the Tribe’s

sovereign interests in the crime scene where Murray was shot.

evidence related to the shooting death.” Plaintiffs claim that “[b]y failing to investigate

Todd Murray’s death and by taking no action to promote justice in Indian Country, Special

Agent Rex Ashdown and David Ryan and BIA Officers James Beck, Terrance Cuch and

Kevin Myore breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s

family under the Ute Treaties of 1863 and 1868. . . .”

Plaintiffs further allege:

The United States has also breached its trust obligations to the Tribe and

Murray’s family by failing to protect the territorial integrity of the Tribe’s

reservation and the Tribe’s sovereign interest in the shooting site, thus

allowing unauthorized persons to trespass on the Ute homeland and cause

harm to tribal members with complete impunity. The Defendant’s breach of

its trust and treaty obligations has resulted in substantial loss to the Tribe.

Todd Murray was a registered tribal member and a lineal descendant of Ute

blood. The Ute Tribe is a small tribe with less than 4,000 members.

Unremitting tribal membership is an integral part of the Tribe’s ability to

sustain its lineage and culture. The Defendant is liable in damages for such

loss.

In response to the amended complaint, defendant, again, filed a motion to dismiss

both counts pursuant to RCFC 12(b)(1) and RCFC 12(b)(6), for lack of subject matter

jurisdiction, and failure to state a claim, respectively. For count one, defendant contends

that the violation of the Ute Treaties should be dismissed “for lack of jurisdiction and for

failure to state a claim.” Defendant argues that “[p]laintiffs have not complied with the

terms of the Treaty and have not exhausted the administrative remedies required by the

express terms of the Treaty.” Defendant contends that even if the court found jurisdiction

under the “bad men” provision12 of the 1868 Treaty with the Utes, “plaintiffs do not state

a cognizable claim under the ‘bad men’ provision.” For count two, defendant contends

that, “[p]laintiffs’ breach-of-trust claims are barred by the United States’ sovereign

immunity because plaintiffs did not allege the violation of a specific statutory or regulatory

money-mandating duty,” and that the Treaties involved “do not impose a nondiscretionary

fiduciary duty upon the United States to prosecute alleged ‘bad men’ without exercising

its prosecutorial discretion.”

DISCUSSION

Background of the Ute Treaties

Many of the plaintiffs’ claims center on particular provisions of two treaties

executed, and ratified, in the mid-19th century. The first treaty was concluded on October

7, 1863. See Treaty with the Utah Tabeguache Band, October 7, 1863, 13 Stat. 673

12 Both defendant and plaintiffs use the phrases “bad men” provision and “bad men”

clause, in their filings. For simplicity, unless quoting directly, the court adopts the phrase

“bad men” provision.

(referred to by the parties as the 1863 Treaty).13 Through the 1863 Treaty, the

Tabeguache Band of Ute Indians ceded their rights and interest to vast tracts of land in

the Western United States. See id. Article 1 of the 1863 Treaty states: “It is admitted by

the Tabeguache band of Utah Indians that they reside within the territorial limits of the

United States, acknowledging their supremacy, and claim their protection. The said band

also admits the right of the United States to regulate all trade and intercourse with them.”

Article 2 of the 1863 Treaty states, in part: “Said Tabeguache band of Utah Indians hereby

cede, convey, and relinquish all of their claim, right, title, and interest in and to any and

all of their lands within the territory of the United States, wherever situated, excepting that

which is included within the following boundaries. . . .” Id. In return: “[f]or the period of ten

years the said band shall receive, annually, by such distribution as the Secretary of the

Interior may direct, ten thousand dollars' worth of goods, and also ten thousand dollars'

worth of provisions.” Id.

Article 10 of the 1863 Treaty provides:

Each family that shall announce through its head to the agent of the band a

willingness and determination to begin and follow the pursuits of agriculture,

by farming or raising stock and growing wool, upon such lands and

according to such regulations as the Secretary of the Interior may prescribe,

shall receive the following donations of stock to aid them in their endeavor

to gain a livelihood by such new pursuits, viz.:

Of cattle, one head annually during five years, beginning with the ratification

of this treaty.

Of sheep, ten head annually during the first two years after the ratification

of this treaty, and five head annually during the three years thereafter.

The Secretary of the Interior may also direct that their share of annuity

goods and provisions shall be of a character suited to such change of life:

Provided, however, That such stock shall only be donated as long as such

family shall in good faith keep and use the same for the purpose indicated

in this article.

All the Indians of said band who may adopt and conform to the provisions

of this article shall be protected in the quiet and peaceable possession of

their said lands and property.

Id. (emphasis in original).

13On March 25, 1864, the United States Senate advised ratification, with amendments,

which were assented to by the Tribe on October 8, 1864. See 13 Stat. 673. The 1863

Treaty was then signed by President Lincoln on December 14, 1864. See id.

In March of 1868, the United States concluded another treaty with the Ute. See

Treaty with the Ute, March 2, 1868, 15 Stat. 619 (referred to by the parties as the 1868

Treaty).14 As noted in the preamble and Article 1 of the 1868 Treaty:

Articles of a treaty and agreement made and entered into at Washington

City, D.C., on the second day of March, one thousand eight hundred and

sixty-eight, by and between Nathaniel G. Taylor, Commissioner of Indian

Affairs, Alexander C. Hunt, governor of Colorado Territory and ex-officio

superintendent of Indian affairs, and Kit Carson, duly authorized to

represent the United States, of the one part, and the representatives of the

Tabaquache[15], Muache, Capote, Weeminuche, Yampa, Grand River, and

Uintah bands of Ute Indians, (whose names are hereto subscribed,) duly

authorized and empowered to act for the body of the people of said bands,

of the other part, witness:

Article I. All the provisions of the treaty concluded with the Tabequache

band of Utah Indians, October seventh, one thousand eight hundred and

sixty-three, as amended by the Senate of the United States and proclaimed

December fourteenth, one thousand eight hundred and sixty-four, which are

not inconsistent with the provisions of this treaty, as hereinafter provided,

are hereby reaffirmed and declared to be applicable and to continue in force

as well to the other bands, respectively, parties to this treaty, as to the

Tabequache band of Utah Indians.

Id. Article 2 of the 1868 Treaty states, in part:

[T]he United States now solemnly agree that no persons, except those

herein authorized so to do, and except such officers, agents, and employes

[sic] of the Government as may be authorized to enter upon Indian

reservations in discharge of duties enjoined by law shall ever be permitted

to pass over, settle upon, or reside in the Territory described in this article,

except as herein otherwise provided.

Id. Art. 2. The 1868 Treaty reaffirmed and incorporated the provisions of the 1863 Treaty,

but also created new guarantees and promises. For example, Article 5 the 1868 Treaty

established how to resolve “depredation on person or property”:

The United States agree that the agents for said Indians, in the future, shall

make their homes at the agency buildings; that they shall reside among the

14On July 25, 1868, the United States Senate advised ratification, with amendments,

which were assented to by the Tribe in August and September 1868. See 15 Stat. 619.

The 1868 Treaty was then signed by President Johnson on November 6, 1868. See id.

15Although the 1868 Treaty uses the spelling “Tabaquache” in the preamble, all other

spellings of the Tribe are “Tabequache.”

Indians, and keep an office open at all times for the purpose of prompt and

diligent inquiry into such matters of complaint by and against the Indians,

as may be presented for investigation under the provisions of their treaty

stipulations, as also for the faithful discharge of other duties enjoined on

them by law. In all cases of depredation on person or property, they shall

cause the evidence to be taken in writing and forwarded, together with their

finding, to the Commissioner of Indian Affairs, whose decision, subject to

the revision of the Secretary of the Interior, shall be binding on the parties

to this treaty.

Id. Art. 5. Article 6 states in full:

If bad men among the whites or among other people, subject to the authority

of the United States, shall commit any wrong upon the person or property

of the Indians, the United States will, upon proof made to the agent and

forwarded to the Commissioner of Indian Affairs at Washington City,

proceed at once to cause the offender to be arrested and punished

according to the laws of the United States, and also reimburse the injured

person for the loss sustained.

If bad men among the Indians shall commit a wrong or depredation upon

the person or property of any one, white, black, or Indian, subject to the

authority of the United States and at peace therewith, the tribes herein

named solemnly agree that they will, on proof made to their agent and

notice to him, deliver up the wrongdoer to the United States, to be tried and

punished according to its laws, and in case they wilfully refuse so to do the

person injured shall be reimbursed for his loss from the annuities or other

moneys due or to become due to them under this or other treaties made

with the United States.

Id. Art. 6. This provision is often referred to by courts and litigants as the “bad men”

provision. “Bad men” provisions are common in Native American treaties of this time

period, and appear to have been fairly standard in Native American treaties during the

19th century. As explained by the United States Court of Appeals for the Federal Circuit

in Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987):

The treaty in question [the Navajo Treaty] is one of nine made in 1868, by and

between commissioners representing the United States and chiefs of various

previously hostile Indian tribes. The treaties were all duly ratified, proclaimed, and

published in volume fifteen of the Statutes at Large. All say that peace is their

object and all contain “bad men” articles in similar language.

Id. at 395; see also Elk v. United States, 87 Fed. Cl. 70, 81 & 81 n.16 (2009) (noting that

other 1868 treaties “contain ‘bad men’ clauses identical to that in the Sioux Treaty, citing

the Najavo Treaty and noting the earlier 1868 Ute Treaty), appeal dismissed, 449 F. App’x

1 (Fed. Cir. 2010); Garreaux v. United States, 77 Fed. Cl. 726, 734 (2007).

As noted above, in the “bad men” provision of the 1868 Ute Treaty, the United

States promised:

If bad men among the whites or among other people, subject to the authority

of the United States, shall commit any wrong upon the person or property

of the Indians, the United States will, upon proof made to the agent and

forwarded to the Commissioner of Indian Affairs at Washington City,

proceed at once to cause the offender to be arrested and punished

according to the laws of the United States, and also reimburse the injured

person for the loss sustained.

Plaintiffs allege that on April 1, 2007, Todd Murray was “wronged” by “bad men,”

under the terms of the 1868 Ute Treaty. Further, plaintiffs contend that “[t]he United States

agreed to protect and reimburse the Ute Indians for all harm, injury, unjust, or unmerited

treatment inflicted upon any tribal member or tribal property by non-whites on the

reservation,” but that the United States failed to honor its obligations under the 1868

Treaty by not investigating and prosecuting the alleged wrongdoers.

Jurisdiction

Defendant argues that this court lacks jurisdiction over plaintiffs’ case because

plaintiffs have not complied with the terms of the 1868 Ute Treaty, and further argues that

plaintiffs have not stated a cognizable claim under the “bad men” provision. It is well

established that “‘subject-matter jurisdiction, because it involves a court’s power to hear

a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514

(2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts have

an independent obligation to ensure that they do not exceed the scope of their jurisdiction,

and therefore they must raise and decide jurisdictional questions that the parties either

overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,

434 (2011); see also Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a

requirement goes to subject-matter jurisdiction, courts are obligated to consider sua

sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v.

Friend, 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to determine

whether subject-matter jurisdiction exists, even when no party challenges it.” (citing

Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d

1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear

and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160,

161 (Fed. Cir. 1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963

(Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise

the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even

by a party that once conceded the tribunal’s subject-matter jurisdiction over the

controversy.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013); see also

Arbaugh v. Y & H Corp., 546 U.S. at 506 (“The objection that a federal court lacks subject-

matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any

stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co.,

L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a

court’s subject matter jurisdiction can be raised by any party or the court at any stage of

litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp.,

546 U.S. at 506–07)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346

(Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject

matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden

v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.

Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West,

160 F.3d 717, 720 (Fed. Cir. 1998))); Mata v. United States, 118 Fed. Cl. 92, 95-96

(2014), recons. denied, 2015 WL 1000820 (Fed. Cl. Mar. 4, 2015); Pikulin v. United

States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact,

“[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where

. . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am.

Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134

F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.),

cert. denied, 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.

granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S.

975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid

Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court

must always determine for itself whether it has jurisdiction to hear the case before it, even

when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614

F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909 (2011).

Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need

only state in the complaint “a short and plain statement of the grounds for the court’s

jurisdiction,” and “a short and plain statement of the claim showing that the pleader is

entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed. R. Civ. P. 8(a)(1), (2) (2015); see also

Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555–57, 570 (2007)). “Determination of jurisdiction starts with the complaint, which

must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim,

independent of any defense that may be interposed.” Holley v. United States, 124 F.3d

1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463

U.S. 1 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.

United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United

States, 93 Fed. Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted

inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d

1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363

n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and

A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). “A plaintiff’s factual

allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from

conceivable to plausible.’” Three S Consulting v. United States, 104 Fed. Cl. 510, 523

(2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff’d, 562 F. App’x 964 (Fed.

Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

not do.’ 550 U.S. at 555. Nor does a complaint suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. at 555).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (“In addition, when ruling on a defendant’s motion to

dismiss, a judge must accept as true all of the factual allegations contained in the

complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56 (citing Swierkiewicz v.

Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236

(1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether

on the ground of lack of jurisdiction over the subject matter or for failure to state a cause

of action, the allegations of the complaint should be construed favorably to the pleader.”),

abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982), recognized by

Davis v. Scherer, 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States, 464

F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d

1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906

(2003). If a defendant or the court challenges jurisdiction or plaintiff’s claim for relief,

however, the plaintiff cannot rely merely on allegations in the complaint, but must instead

bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors

Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); see also Land v. Dollar, 330 U.S.

731, 735 n.4 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.

Cir. 1988); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404–05 (1994).

The Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the

Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United

States (1) founded on an express or implied contract with the United States, (2) seeking

a refund from a prior payment made to the government, or (3) based on federal

constitutional, statutory, or regulatory law mandating compensation by the federal

government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287,

289–90 (2009) (Navajo Nation II);16 United States v. Mitchell, 463 U.S. 206, 216 (1983)

(Mitchell II);17 see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008);

Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

16The decision in Navajo Nation II was preceded by the Supreme Court decision in United

States v. Navajo Nation, 537 U.S. 488 (2003) (Navajo Nation I).

17The decision in Mitchell II was preceded by the Supreme Court decision in United

States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I).

“Not every claim invoking the Constitution, a federal statute, or a regulation is

cognizable under the Tucker Act. The claim must be one for money damages against the

United States . . . .” Mitchell II, 463 U.S. at 216; see also United States v. White Mountain

Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 F.3d 1114, 1116

(Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States, 566

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d

at 1343 (“[P]laintiff must . . . identify a substantive source of law that creates the right to

recovery of money damages against the United States.”). In Ontario Power Generation,

Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified

three types of monetary claims for which jurisdiction is lodged in the United States Court

of Federal Claims. See Ontario Power Generation, Inc. v. United States, 369 F.3d 1298,

1301 (Fed. Cir. 2004). The court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605–06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket’” (quoting

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))

. . . . Third, the Court of Federal Claims has jurisdiction over those claims

where “money has not been paid but the plaintiff asserts that he is

nevertheless entitled to a payment from the treasury.” Eastport S.S., 372

F.2d at 1007. Claims in this third category, where no payment has been

made to the government, either directly or in effect, require that the

“particular provision of law relied upon grants the claimant, expressly or by

implication, a right to be paid a certain sum.” Id.; see also [United States v.

]Testan, 424 U.S. [392,] 401-02 [(1976)] (“Where the United States is the

defendant and the plaintiff is not suing for money improperly exacted or

retained, the basis of the federal claim-whether it be the Constitution, a

statute, or a regulation-does not create a cause of action for money

damages unless, as the Court of Claims has stated, that basis ‘in itself . . .

can fairly be interpreted as mandating compensation by the Federal

Government for the damage sustained.’” (quoting Eastport S.S., 372 F.2d

at 1009)). This category is commonly referred to as claims brought under a

“money-mandating” statute.

Ontario Power Generation, Inc. v. United States, 369 F.3d at 1301; see also Twp. of

Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, “the statute and

regulations must be such that they ‘“can fairly be interpreted as mandating compensation

by the Federal Government for the damage sustained.”’” Roberts v. United States, 745

F.3d 1158, 1162 (Fed. Cir. 2014) (quoting United States v. White Mountain Apache Tribe,

537 U.S. at 472 (quoting United States v. Testan, 424 U.S. 392, 400 (1976))); see also

Navajo Nation II, 556 U.S. at 290; United States v. White Mountain Apache Tribe, 537

U.S. at 472; Mitchell II, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d

1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law

granting monetary relief must be distinct from the Tucker Act itself. See Navajo Nation II,

556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply a]

jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised

on other sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-

mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for

lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin.,

525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487

F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence

of a money-mandating source is “fatal to the court's jurisdiction under the Tucker Act.”);

Peoples v. United States, 87 Fed. Cl. 553, 565–66 (2009).

If a defendant or the court challenges jurisdiction or a plaintiff’s claim for relief,

however, the plaintiff cannot rely merely on allegations in the complaint, but must instead

bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors

Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); see also Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court must

assume that the undisputed facts alleged in the complaint are true for the purposes of the

motion to dismiss and draws all reasonable inferences in the plaintiffs' favor, the facts

alleged in the complaint must be plausible and not merely naked assertions devoid of a

factual basis. See Ashcroft v. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.”); see also

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (mere allegations

of law and conclusions of fact are insufficient to support a claim); SUFI Network Servs.,

Inc. v. United States, 102 Fed. Cl. 656, 660 (2012) (plaintiff “must provide more than mere

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’”

(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265,

286 (1986)))); Rack Room Shoes v. United States 718 F.3d 1370, 1376 (Fed. Cir.) reh’g

and reh’g en banc denied, (Fed. Cir. 2013) cert. denied, 134 S. Ct. 2287 (2014); Kam-

Almaz v. United States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (“[A] court is ‘“not bound

to accept as true a legal conclusion couched as a factual allegation.”’” (quoting Twombly,

550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)))).

“It is well established that, in addition to the complaint itself and exhibits thereto,

the court ‘must consider . . . documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.’” Bell/Heery v. United States, 106 Fed.

Cl. 300, 307-08 (2012) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007) (citing 5B Wright & Miller § 1357 (3d ed. 2004 and Supp. 2007))), aff’d,

739 F.3d 1324 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); see also

Fredericksburg Non-Profit Housing Corp. v. United States, 113 Fed. Cl. 244, 255 n.19

(2013) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure §

1357); Bristol Bay Area Health Corp. v. United States, 110 Fed. Cl. 251, 262 (2013). As

also discussed further below, the “bad men” provision of the 1868 Ute Treaty provides a

basis for jurisdiction in this court.

Administrative Exhaustion

Defendant argues that administrative exhaustion is a “jurisdictional prerequisite” to

judicial review. The defendant relies on language in the 1868 Ute Treaty, which reads:

In all cases of depredation on person or property, they shall cause the

evidence to be taken in writing and forwarded, together with their finding, to

the Commissioner of Indian Affairs, whose decision, subject to the revision

of the Secretary of the Interior, shall be binding on the parties to this [1868]

treaty.

1868 Treaty, Art. 5. Defendant contends that this language mandates full administrative

review, allowing the Department of the Interior an opportunity to issue a “binding decision”

before a plaintiff can seek relief from the courts. Defendant states that “throughout the six

years following Mr. Murray’s death, Plaintiffs have had every opportunity to present a ‘bad

men’ claim to the Department of the Interior (‘DOI’), as agreed upon by both the Tribe and

the United States. See Treaty with the Ute Indians, 15 Stat. 619 (1868). Plaintiffs have

not.” (internal citation omitted). According to defendant, “plaintiffs have not complied with

the terms of the Treaty and have not exhausted the administrative remedies required by

the express terms of the Treaty.” As a consequence, defendant argues,

DOI has not been provided with an opportunity to “cause the evidence to be

taken in writing and forwarded, together with [the government agent’s]

finding, to the Commissioner of Indian Affairs, whose decision, subject to

the revision of the Secretary of the Interior, shall be binding on the parties

to this treaty.” Art. 5, 1868 Treaty. Having failed to exhaust their

administrative remedies, Plaintiffs’ Amended Complaint should be

dismissed.

(alterations in original). Defendant urges this court to dismiss plaintiffs’ claims in the

United States Court of Federal Claims for lack of subject matter jurisdiction.

In response, plaintiffs argue they have satisfied the exhaustion requirements of the

treaty by way of their March 12, 2013 letter to Department of the Interior officials, placing

the Department of the Interior on notice of plaintiffs’ intention to file suit in this court.

Plaintiffs allege that the court “has previously analyzed this specific bad men treaty clause

and has held that the only prerequisite required before suit is filed is that a notice of claim

must be sent to the agency and a copy be sent to the Commissioner of Indian Affairs in

Washington.” Moreover, plaintiffs argue that the exhaustion requirement is non-

jurisdictional, maintaining that any requirement to exhaust administrative remedies is

purely prudential and, therefore, subject to the court’s discretion.

“The doctrine of exhaustion of administrative remedies is one among related

doctrines—including abstention, finality, and ripeness—that govern the timing of federal-

court decision making.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by

statute as recognized in Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997). The Supreme

Court has held “‘that no one is entitled to judicial relief for a supposed or threatened injury

until the prescribed administrative remedy has been exhausted.’” McKart v. United States,

395 U.S. 185, 194 (1969) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,

50—51 (1938)); see also Woodford v. Ngo, 548 U.S. 81, 88 (2006); Sandvik Steel Co. v.

United States, 164 F.3d 596, 599 (Fed. Cir. 1998) (The general rule is that “no one is

entitled to judicial relief for a supposed or threatened injury until the prescribed

administrative remedy has been exhausted.”); Burlington N. R.R. Co. v. United States,

752 F.2d 627, 629 (Fed. Cir. 1985).

“Exhaustion of administrative remedies serves two main purposes.” Woodford v.

Ngo, 548 U.S. at 89; In re DBC, 545 F.3d 1373, 1378 (Fed. Cir. 2008). As described by

the United States Supreme Court, the first, and primary, purpose is the development of a

proper factual background:

A primary purpose is, of course, the avoidance of premature interruption of

the administrative process. The agency, like a trial court, is created for the

purpose of applying a statute in the first instance. Accordingly, it is normally

desirable to let the agency develop the necessary factual background upon

which decisions should be based. And since agency decisions are

frequently of a discretionary nature or frequently require expertise, the

agency should be given the first chance to exercise that discretion or to

apply that expertise.

McKart v. United States, 395 U.S. at 193–94; see also Kappos v. Hyatt, 132 S. Ct. 1690,

1692 (2012) (noting that “‘the avoidance of premature interruption of the administrative

process’” is the “primary purpose” of the doctrine of administrative exhaustion). Under this

theory, “[t]he administrative agency is created as a separate entity and invested with

certain powers and duties. The courts ordinarily should not interfere with an agency until

it has completed its action, or else has clearly exceeded its jurisdiction.” McKart v. United

States, 395 U.S. at 194. “Exhaustion gives an agency ‘an opportunity to correct its own

mistakes with respect to the programs it administers before it is hauled into federal court,’

and it discourages ‘disregard of [the agency's] procedures.’” Woodford v. Ngo, 548 U.S.

at 89 (quoting McKart v. United States, 395 U.S. at 195) (alteration in original); In re DBC,

545 F.3d at 1378; see also Kentucky v. United States, 62 Fed. Cl. 445, 453 (2004)

(“‘When administrative remedies have not been exhausted, “judicial review of

administrative action is inappropriate,” since it is “a general rule that courts should not

topple over administrative decisions unless the administrative body not only has erred but

has erred against objection made at the time appropriate under its practice.”’” (quoting

Sandvik Steel Co. v. United States, 164 F.3d at 599 (quoting Sharp Corp. v. United States,

837 F.2d 1058, 1062 (Fed. Cir. 1988))), aff’d, 424 F.3d 1222 (Fed. Cir. 2005); see also

McCarthy v. Madigan, 503 U.S. at 145 (“Correlatively, exhaustion principles apply with

special force when ‘frequent and deliberate flouting of administrative processes’ could

weaken an agency's effectiveness by encouraging disregard of its procedures.” (quoting

McKart v. United States, 395 U.S. at 195)).

The second purpose for requiring exhaustion of administrative remedies is judicial

economy. “And of course it is generally more efficient for the administrative process to go

forward without interruption than it is to permit the parties to seek aid from the courts at

various intermediate stages.” McKart v. United States, 395 U.S. at 194. “Claims generally

can be resolved much more quickly and economically in proceedings before an agency

than in litigation in federal court. In some cases, claims are settled at the administrative

level, and in others, the proceedings before the agency convince the losing party not to

pursue the matter in federal court.” Woodford v. Ngo, 548 U.S. at 88; see also McCarthy

v. Madigan, 503 U.S. at 145 (“When an agency has the opportunity to correct its own

errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be

avoided.”). “And it can serve judicial efficiency by promoting development of an agency

record that is adequate for later court review and by giving an agency a full opportunity to

correct errors and thereby narrow or even eliminate disputes needing judicial resolution.”

Itochu Bldg. Products v. United States, 733 F.3d 1140, 1145 (Fed. Cir. 2013); Kentucky

v. United States, 62 Fed. Cl. at 459; Forest Products Nw., Inc. v. United States, 62 Fed.

Cl. 109, 122 (2004), aff’d, 453 F.3d 1355 (Fed. Cir. 2006); see also Weinberger v. Salfi,

422 U.S. 749 (1975) (the doctrine of administrative exhaustion may allow an agency “to

compile a record which is adequate for judicial review”).

“Proper exhaustion demands compliance with an agency's deadlines and other

critical procedural rules because no adjudicative system can function effectively without

imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548

U.S. at 90-91; see also Arctic Slope Native Assoc., Ltd. v. Sebelius, 583 F.3d 785, 793

(Fed. Cir. 2009) (“Statutory time restrictions on the submission of administrative claims

are a part of the requirement that a party must satisfy to properly exhaust administrative

remedies.”), reh’g and reh’g en banc denied (Fed. Cir.), cert. denied, 131 S. Ct. 144

(2010); Kellogg Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 46, 51 (2014);

Paradigm Learning, Inc. v. United States, 93 Fed. Cl. 465, 473 (2010). “The fact that the

administrative remedy was provided by a regulation rather than by a statute does not

make the exhaustion doctrine inapplicable or inappropriate.” Sandvik Steel Co. v. United

States, 164 F.3d at 600; see also Itochu Bldg. Products v. United States, 733 F.3d at

1145 n.1 (“Failure to exploit an available agency remedy, even if not specifically required,

can constitute a failure to exhaust in appropriate circumstances.” (citing Corus Staal BV

v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007) (“The exhaustion requirement in

this context is therefore not simply a creature of court decision, as is sometimes the case,

but is a requirement explicitly imposed by the agency as a prerequisite to judicial

review.")).

The facts of a particular case, however, can call for an exception to otherwise

requiring administrative exhaustion. See, e.g., McKart v. United States, 395 U.S. at 197

(“We cannot agree that application of the exhaustion doctrine would be proper in the

circumstances of the present case.”). “‘[A]dministrative remedies need not be pursued if

the litigant's interests in immediate judicial review outweigh the government's interests in

the efficiency or administrative autonomy that the exhaustion doctrine is designed to

further.’” McCarthy v. Madigan, 503 U.S. at 146 (quoting West v. Bergland, 611 F.2d 710,

715 (8th Cir.1979), cert. denied, 449 U.S. 821 (1980)); see also Shalala v. Illinois Council

on Long Term Care, Inc., 529 U.S. 1, 13, reh'g denied, 529 U.S. 1095 (2000) (“Doctrines

of ‘ripeness' and ‘exhaustion’ contain exceptions, however, which exceptions permit early

review when, for example, the legal question is ‘fit’ for resolution and delay means

hardship, or when exhaustion would prove ‘futile[.]’” (citing McCarthy v. Madigan, 503

U.S. at 147–48)) (other citations omitted).

“Where the issue of exhaustion of administrative remedies is not governed by a

particular statutory provision or an overall statutory scheme, the decision whether to

require exhaustion in a particular case is a matter committed to the discretion of the trial

court.” Corus Staal BV v. United States, 502 F.3d at 1381; Bernklau v. Principi, 291 F.3d

795, 801 (Fed. Cir. 2002).

Plaintiffs allege the exhaustion requirement has been satisfied by the notice of their

intent to file suit against the United States indicated in the March 12, 2013 letter

addressed to senior officials at the Department of the Interior. The March 12, 2013 letter

states: