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Rabang v. Kelly

United States District Court, W.D. Washington, Seattle

April 11, 2018

MARGRETTY RABANG, et al., Plaintiffs,
v.
ROBERT KELLY, JR., et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendants' motion for an indicative ruling regarding dismissal (Dkt. No. 144). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.

         I. BACKGROUND

         The Court has provided a detailed factual and procedural background of this case in previous orders that it will not repeat here. (See Dkt. Nos. 62 at 1-6, 63 at 1-2, 130 at 1-4.) What follows is the relevant factual and procedural history leading to this motion.

         On April 26, 2017, the Court denied the Kelly Defendants'[1] motion to dismiss the Plaintiffs' complaint for lack of subject matter jurisdiction and on sovereign immunity grounds. (Dkt. No. 63.) On May 17, 2017, the Kelly Defendants timely filed an interlocutory appeal challenging the Court's order. (Dkt. No. 69); Rabang v. Kelly, No. 17-35427 (9th Cir. 2018).

         On August 28, 2017, Defendant Robert Kelly, Jr. (“Kelly”), in his capacity as Chairman of the Nooksack Tribal Council, entered into a Memorandum of Agreement (MOA) with Michael Black, Acting Assistant Secretary-Indian Affairs, on behalf of the Department of the Interior (“DOI”). (Dkt. No. 117-1 at 8-12.) The MOA's primary purpose was to establish a process under which DOI would once again recognize the Nooksack Tribal Council as the governing body of the Nooksack Indian Tribe. (Id. at 8.) The MOA required Kelly to conduct a Nooksack Tribal Council election within 120 days of signing the agreement. (Id.) DOI was to issue a letter granting full recognition of the Nooksack Tribal Council after its review of the certified election results, the final resolution of any challenges to those results, and the endorsement or non-endorsement of the results by the Director of the Bureau of Indian Affairs' (BIA) Pacific Northwest Region. (Id. at 9.)

         On October 25, 2017, the Court stayed all proceedings pending the results of the election. (Dkt. No. 130.) The Court reasoned that if DOI once again recognized the Nooksack Tribal Council, it could affect the Court's jurisdiction in this matter. (See Dkt. No. 130.) The Court also concluded that a stay was appropriate to avoid piecemeal litigation resulting from the Kelly Defendants' interlocutory appeal.[2] (Id. at 7.) The Court extended its stay on January 26, 2018 because DOI had not yet issued its certification of the election results. (Dkt. No. 140.) On March 9, 2018, DOI issued a letter that affirmed the validity of the election and recognized the Nooksack Tribal Council as currently comprised. (Dkt. No. 145-1 at 2.)

         The same day that DOI issued its recognition letter, the parties conducted oral arguments in the interlocutory appeal before the Ninth Circuit. See Rabang v. Kelly, No. 17-35427 (9th Cir. Mar. 9, 2018). After receiving the DOI recognition letter, the Kelly Defendants filed this motion for an indicative ruling (Dkt. No. 144). Pursuant to Federal Rule of Civil Procedure 62.1, the Kelly Defendants ask the Court to indicate to the Ninth Circuit that if it remanded the matter, this Court would dismiss the complaint for lack of subject matter jurisdiction. (Id. at 2.)[3] Were the Court to issue an indicative ruling, the Kelly Defendants additionally ask for dismissal either under Federal Rule of Civil Procedure 60(b) or 12(h)(3). (Id. at 7-10.)

         Plaintiffs object to the motion on several grounds. First, they assert the Kelly Defendants made the motion without seeking relief from the Court's stay. (Dkt. No. 147 at 6.) Second, they argue an indicative ruling regarding dismissal for lack of jurisdiction is inappropriate because the Ninth Circuit Court of Appeals is poised to make a ruling on that very issue.[4] (Id. at 7.) Finally, Plaintiffs argue that DOI's recent recognition of the Tribal Council does not affect this Court's jurisdiction over their claims. (Id. 7-9.)

         II. DISCUSSION

         At the outset, the Court must decide whether it is appropriate to issue an indicative ruling while the Kelly Defendants' interlocutory appeal is pending at the Ninth Circuit.[5] As the Kelly Defendants correctly note in their motion, “[t]he issue of this Court's subject matter jurisdiction over the claims against the Kelly Defendants is presently pending in the Ninth Circuit Court of Appeals. Thus, the Ninth Circuit-not this Court-has jurisdiction. (Dkt. No. 144 at 4) (citing United States v. Claiborne, 727 F.2d 842, 850 (9th Cir. 1984)). In other words, while a district court's ruling is on appeal, the court is without jurisdiction to alter that ruling. See Fed. R. Civ. P. 62.1 advisory committee notes (“After an appeal has been docketed and while it remains pending, the district court cannot grant a Rule 60(b) without a remand.”).

         Notwithstanding the Court's current lack of jurisdiction, the Federal Rules allow a district court to indicate to the Court of Appeals that it would alter its ruling if the appeal were remanded for that purpose. See Fed. R. Civ. P. 62.1. When a party brings a Rule 62.1 motion for an indicative ruling, the Court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. Fed.R.Civ.P. 62.1(a)(1)-(3). A district court's decision to make an indicative ruling is discretionary. See id.; Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1206 (8th Cir. 2015).

         The Kelly Defendants argue that the Court should indicate to the Court of Appeals that it would dismiss the complaint for lack of subject matter jurisdiction based on DOI's recent recognition of the Nooksack Tribal Council. (Dkt. No. 144 at 2.) They point to the Court's previous statement that “if the DOI and BIA recognize tribal leadership after new elections, this Court will no longer have jurisdiction and the issues will be resolved internally.” (Id. at 3) (citing Dkt. No. 62 at 11). However, the question of how the Court might ultimately rule on its continuing jurisdiction over this lawsuit is different than whether it should ask the Court of Appeals to remand the case to reexamine the jurisdictional issue.

         Plaintiffs point out that the Kelly Defendants have raised the issue of this Court's jurisdiction in their interlocutory appeal. (Dkt. No. 147 at 8.)[6] As a result, they argue it would be imprudent for the Court to issue an indicative ruling “reconsidering the same question being reviewed by the court of appeals.” (Id.) (citing Ret. Bd. of Policemen's Annuity & Ben. Fund of City of Chicago v. Bank of New York Mellon, 297 F.R.D. 218, 223 (S.D.N.Y. 2013)). Plaintiffs argue that an indicative ruling under these circumstances would ...


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