United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
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
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.
April 26, 2017, the Court denied the Kelly
Defendants' 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).
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.)
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. (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.)
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.) 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.)
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. (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.)
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. 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.”).
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).
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.
point out that the Kelly Defendants have raised the issue of
this Court's jurisdiction in their interlocutory appeal.
(Dkt. No. 147 at 8.) 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 ...