Alegre v. Contreras

• Court: District Court, S.D. California
• Decided: August 16, 2019
• Docket: 3:16-cv-02442
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CINDY ALEGRE, et al., Case No.: 16-CV-02442-AJB-KSC Plaintiff, 12 v. ORDER GRANTING IN PART AND 13 DENYING IN PART FEDERAL

DEFENDANTS’ MOTION TO 14 UNITED STATES OF AMERICA, et al. DISMISS (Doc. No. 68) 15 Defendants. 16 17 Before the Court is the United States, the Department of the Interior, and several 18 employees acting in their official capacity (“Federal Defendants”) motion to dismiss 19 Plaintiffs’ Third Amended Complaint (“TAC”). (Doc. No. 68.) For the reasons set forth 20 below, the Court GRANTS IN PART AND DENIES IN PART Individual Defendants’ 21 motion to dismiss. 22 I. BACKGROUND 23 The following facts are taken from the TAC and construed as true for the limited 24 purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 25 (9th Cir. 2013). The facts of this case have been thoroughly detailed in previous documents, 26 including this Court’s previous order granting motion to dismiss. (See Doc. No. 43.) 27 Although the complaint has been amended several times, the core facts remain the same. 28 Plaintiffs are the descendants of Jose Juan Martinez, Guadalupe Martinez, and their 1 daughter Modesta Martinez Contreras (collectively, “Martinez Ancestors”). 2 (Doc. 62 ¶ 28.) Plaintiffs are split into Groups A and B. (Id. ¶¶ 13–18.) Group A Plaintiffs 3 include Plaintiffs who are: residents of San Diego County, “direct lineal descendants of 4 Jose Juan Martinez and Guadalupe Martinez,” “direct lineal descendants of Modesta 5 Contreras,” enrolled in the Band, but are not federally recognized as Band members by the 6 BIA. (Id. ¶ 15.) Group B Plaintiffs, including Plaintiff, are also San Diego County 7 residents, are enrolled in the Bank, and are federally recognized by the BIA as Band 8 members. (Id. ¶ 18.) 9 Plaintiffs assert each of the Martinez Ancestors were full blood San Pasqual Indians. 10 (Id.) In 2005, Plaintiffs submitted their applications to the Enrollment Committee for 11 enrollment with the San Pasqual Band of Mission Indians in California (“Band”). (Id. ¶ 12 29.) The Enrollment Committee unanimously voted that Plaintiffs had established they 13 were qualified for enrollment. (Id.) This determination “was predicated on a finding that 14 Plaintiffs’ ancestor Modesta’s blood degree should be increased from ¾ to 4/4[.]” (Id. ¶ 15 30.) The Band’s General Council then unanimously agreed with the Enrollment Committee 16 on April 10, 2005. (Id. ¶ 30.) Later, on September 12, 2005, the Band’s Business 17 Committee concurred with both the General Council and the Enrollment Committee and 18 sent its findings to former Superintendent of the Southern California Agency, James 19 Fletcher. (Id. ¶ 31.) However, Fletcher declined to accept the Tribal recommendations. (Id.) 20 On September 22, 2005, the Enrollment Committee—in a separate proceeding— 21 requested the BIA to increase Modesta’s blood degree from 3/4 to 4/4 degree San Pasqual 22 blood. (Id.) Three months later, on December 8, 2005, Fletcher sent Individual Defendant 23 Amy Dutschke (“Dutschke”) a letter, stating “the preponderance of the evidence does not 24 sufficiently demonstrate that Modesta [] is full blood[,]” (Id. at ¶33) to which Dutschke 25 concurred (Id. at ¶35). However, Plaintiffs were never given written notice of either 26 Fletcher or Dutschke’s findings. (Id. at ¶38.) Plaintiffs subsequently submitted FOIA 27 requests to determine the status of their applications, to which they received responses on 28 October 1, 2014, and May 27, 2015. (Id. at ¶44). It was at this time Plaintiffs learned of 1 Dutschke’s negative determination of Plaintiffs’ enrollment requests. (Id.) 2 II. LEGAL STANDARD 3 A. Rule 12(b)(1) Dismissal for Lack of Subject Matter Jurisdiction 4 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 5 Co., 511 U.S. 375, 377 (1994). Accordingly, “[a] federal court is presumed to lack 6 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc. v. 7 Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). In 8 civil cases, federal courts have subject matter jurisdiction over only those cases where 9 either diversity jurisdiction or federal question jurisdiction exists. See Peralta v. Hispanic 10 Bus., Inc., 419 F.3d 1064, 1068–69 (9th Cir. 2005). Diversity jurisdiction exists where the 11 amount in controversy exceeds $75,000 and is between citizens of different states. 12 28 U.S.C. § 1332. Federal question jurisdiction exists in cases that arise under federal law. 13 Id. § 1331. 14 Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject 15 matter jurisdiction “either on the face of the pleadings or by presenting extrinsic evidence.” 16 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the 17 party asserts a facial challenge, the court limits its inquiry to the allegations set forth in the 18 complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where 19 the party asserts a factual challenge, the court may consider extrinsic evidence 20 demonstrating or refuting the existence of jurisdiction without converting the motion to 21 dismiss into a motion for summary judgment. Id. The party asserting subject matter 22 jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend, 559 23 U.S. 77, 96 (2010). 24 B. Rule 12(b)(6) Dismissal for Failure to State a Claim 25 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 26 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 27 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 28 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 1 88 F.3d 780, 783 (9th Cir. 1996) (citation and internal quotation marks omitted). However, 2 a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to 3 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 4 In making this determination, a court reviews the contents of the complaint, accepting all 5 factual allegations as true and drawing all reasonable inferences in favor of the nonmoving 6 party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 7 975 (9th Cir. 2007). 8 Notwithstanding this deference, the reviewing court need not accept legal 9 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 10 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 11 Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 12 459 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a 13 court should assume their veracity and then determine whether they plausibly give rise to 14 an entitlement to relief.” Iqbal, 556 U.S. at 679. 15 III. DISCUSSION 16 Defendants’ everything-but-the-kitchen-sink motion argues dismissal is warranted 17 because: (1) there is no subject matter jurisdiction over the first and third claims; (2) the 18 second cause of action is moot and is untimely; and (3) Plaintiffs fail to state a claim for 19 the fourth through tenth causes of action. 20 Because the Court already dismissed the Fifth and Eleventh Claims with prejudice, 21 the Court will not discuss these claims. (Doc. No. 98 at 12–13.) Additionally, because the 22 Court already agreed that an equal protection claim under the Fourteenth Amendment is 23 inapplicable and granted leave to amend on that claim, the Court will not discuss this claim 24 either. (Id. at 13.) 25 A. Plaintiffs’ First and Third Claims Under 12(b)(1) 26 Defendants bring a 12(b)(1) motion to dismiss for Plaintiffs’ First and Third claims 27 alleging the United States has not waived sovereign immunity. (Doc. No. 68-1 at 14.) The 28 first cause of action is for violation of the APA while the third cause of action is for 1 declaratory relief, or alternatively, mandamus. 2 Here, Defendants’ jurisdictional attack is factual, rather than facial, because they 3 rely on evidence extrinsic to the complaint. (Id. at 16.) Specifically, Defendants contend 4 the APA does not waive sovereign immunity for these claims “because the BIA never took 5 a final agency action regarding the Group A Plaintiffs’ applications.” (Id. at 18.) Plaintiffs 6 first argue that because Defendants raise extrinsic evidence to support their 12(b)(1) 7 motion, Defendants’ motion to dismiss is converted into a motion for summary judgment 8 under Federal Rule of Civil Procedure 12(d). (Doc. No. 80 at 8.) Plaintiffs then counter the 9 12(b)(1) argument on its merits, stating that APA § 702 does not require finality when 10 judicial review is sought pursuant to a statutory cause of action that arises apart from the 11 APA’s general provisions. Plaintiffs also assert that even if this action were determined 12 under APA § 704 (where finality is required), Defendants’ decisions were final for the 13 agency. (Id. at 12–14.) 14 Plaintiffs first allege the Defendants “failed to satisfy the language that states ‘by 15 presenting affidavits or other evidence properly brought before the court[,]’” their motion 16 to dismiss is converted to a motion for summary judgment under Federal Rule of Civil 17 Procedure 56. (Doc. No. 80 at 9 (original emphasis).) Plaintiffs also refer to their motion 18 to strike the declarations of Dutschke and Long. (Id.) Moreover, Plaintiffs contend the 19 “jurisdictional issue and substantive issues in this case are so intertwined that the question 20 of jurisdiction is dependent on the resolution of factual issues going to the merits.” (Id. 21 (quoting Safe Air, 373 F.3d at 1048).) Specifically, Plaintiffs argue that because whether 22 there was final agency action is a substantive issue, Defendants’ motion is necessarily 23 converted into a motion for summary judgment. (Id.) 24 First, the Plaintiffs incorrectly state that Defendants improperly presented evidence 25 before the court. Indeed, Plaintiffs’ motion to strike Amy Dutschke’s declaration was 26 unsuccessful before this court, (see Doc. No. 96), while Plaintiffs’ motion to strike Harley 27 Long’s declaration was granted because Defendants withdrew the declaration 28 (see Doc. No. 97). 1 Next, whether the BIA took final action is a jurisdictional issue, rather than a 2 substantive issue that goes to the merits. See Safe Air, 373 F.3d at 1038 (“[T]he district 3 court erred by treating the issue of whether grass residue is solid waste under RCRA as a 4 jurisdictional issue”); Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc., 5 711 F.2d 138, 139 (9th Cir. 1983) (finding whether the parties were in a “franchise 6 relationship” as defined by 15 U.S.C. § 2801 was a substantive issue); Vera v. Bureau of 7 Indian Affairs, 738 Fed. App’x. 431, 432 (9th Cir. 2018) (stating because the basis for the 8 government’s 12(b)(1) attack was that it did not control the property relevant to the suit, 9 the motion should have been treated as a motion for summary judgment). 10 B. Plaintiffs’ First Claim Under the APA Is Subject to Judicial Review 11 Under the APA, “§ 702 waives sovereign immunity for all non-monetary claims, 12 [while] § 704’s final agency action requirement constrains only actions brought under the 13 APA.” Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1171 (9th Cir. 2017). Thus, 14 claims brought under the APA are subject to § 704’s limitation on what agency actions are 15 subject to judicial review, while “claims not grounded in the APA, like . . . constitutional 16 claims . . . do not depend on the cause of action found in the first sentence of § 702 and 17 thus § 704’s limitation does not apply to them.” Id. at 1170 (quoting Veterans for Common 18 Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011), opinion vacated on reh’g en banc, 19 678 F.3d 1013 (9th Cir. 2012) (internal citations omitted)). 20 While Plaintiffs’ First Claim under the APA also raises Fifth Amendment Due 21 Process and Equal Protection concerns, Plaintiffs fail to support these contentions with 22 facts in their TAC. (See Doc. No. 62 ¶¶ 59, 68, 69, 70, 71, 73, 78.) Rather, Plaintiffs repeat 23 conclusory statements throughout their TAC, such as: “Defendant’s actions as alleged 24 herein were arbitrary and capricious within the meaning of the due process clause in the 25 Fifth Amendment,” (Id. ¶ 59); “By failing to correct DUTSCHKE’s arbitrary, capricious, 26 and erroneous determinations and actions stated above, MOORE violated Group A 27 Plaintiffs’ rights under the Due Process Clause of the Fifth Amendment, the Equal 28 Protection Clause, and the APA,” (Id. ¶ 70). Thus, Plaintiffs’ First Claim will be analyzed 1 as being brought under the APA—rather than as a claim grounded in constitutional law— 2 and thus is subject to § 704’s requirement of “final agency action.” 3 The Code of Federal Regulations specifically defines when a decision becomes final 4 for the Department of the Interior or the Bureau of Indian Affairs under 5 U.S.C. § 704: 5 “No decision, which at the time of its rendition is subject to appeal to a superior authority 6 in the Department, shall be considered final so as to constitute Departmental action subject 7 to judicial review under 5 U.S.C. 704, unless when an appeal is filed[.]” 25 C.F.R. § 2.6(a) 8 (emphasis added). Requiring plaintiffs to exhaust their administrative remedies “allows 9 agencies to develop a complete factual record and apply their expertise before judicial 10 review occurs.” White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988). 11 1. Defendants’ Denial of Tribal Recommendations 12 In early 2005, Plaintiffs submitted their applications for tribal enrollment to the 13 Tribe’s Enrollment Committee, which was approved and unanimously agreed to by both 14 the Tribe’s General Council and Business Committee. (Doc. No. 62 ¶¶ 29–31.) Thereafter, 15 Plaintiffs allege Defendants violated 25 C.F.R. § 61.11(b) in September 2005 by denying 16 Plaintiffs’ tribal enrollment because Defendants—specifically, the Superintendent of the 17 Department of the Interior—failed to show the Tribe’s recommendations were clearly 18 erroneous. (Id. ¶ 31.) Moreover, Defendants offer that in May 2005, Rudolph Contreras, 19 the Vice-Chairman of the Tribe’s Business Committee, appealed the Superintendent’s 20 decision to the BIA Regional Director. (Doc. No. 68-1 at 11.) The BIA Regional Director 21 then informed Mr. Contreras in September 2005 that he affirmed the Superintendent’s 22 decision, and that his decision “could be appealed to the Interior Board of Indian Appeal, 23 (“IBIA”), within 30 days of receipt of the decision, and that if no appeal was filed, the 24 decision would become final for the Department of the Interior.”) (Id. at 12.) Thus, because 25 the Superintendent’s decision had been appealed, Plaintiffs’ First claim regarding denial of 26 tribal recommendations is subject to judicial review. 27 2. Plaintiffs’ Claim to Increase Modesta’s Blood Degree 28 Here, Plaintiffs filed an appeal in early 2015 regarding the blood degree of Modesta 1 Contreras with Defendant Dutschke, pursuant to 25 C.F.R. § 2.8, to adjudicate their 2 enrollment applications. (Doc. No. 62 ¶ 45.) Defendant Moore responded to this appeal in 3 July 2015, “stating that the BIA no longer had the original applications to adjudicate the 4 enrollment, and the April 7, 2006 letter was ‘Final’ for the Department[.]” (Id.) Because 5 Plaintiffs filed an appeal, to which Defendant Moore established that the “April 7, 2006, 6 decision . . . regarding the blood degree of Modesta Contreras is final for the department,” 7 (Id., Ex. 2), Plaintiffs’ First claim regarding their blood degree is also subject to judicial 8 review. 9 However, this Court notes that the APA “empowers a court only to compel an agency 10 to perform a ministerial or non-discretionary act, or to take action upon a matter, without 11 directing how it shall act.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 12 (2004) (internal citations omitted). “[W]hen an agency is compelled by law to act within a 13 certain time period, but the manner of its action is left to the agency’s discretion, a court 14 can compel the agency to act, but has no power to specify what the action must be.” Id. at 15 65. Thus, while Plaintiffs’ prayer for relief requests this Court to direct Defendants to 16 adjudicate Group A Plaintiffs’ applications for federal recognition and to require the 17 Defendants to follow the Band’s original recommendations, this Court has no power to do 18 so. (See Doc. No. 62 at 46.) 19 Therefore, this Court has subject matter jurisdiction over the First claim and 20 Defendants’ motion to dismiss Plaintiffs’ First cause of action is DENIED. 21 C. Plaintiffs’ Third Claim for Declaratory Relief 22 Plaintiffs seek declaratory relief, or in the alternative, mandamus, in their third claim 23 against Defendants. (Doc. No. 62 ¶ 99.) Plaintiffs allege that sovereign immunity is waived 24 under the APA, and that this Court has jurisdiction under 28 U.S.C. § 1361 to compel 25 Defendants “to perform a duty owed to Plaintiffs.” (Id. ¶¶ 100, 101.) Although § 1361 does 26 not waive Defendants’ sovereign immunity, the APA may. See Allen v. U.S., 871 F. Supp. 27 2d 982, 988 (N.D. Cal. 2012). Plaintiffs thus requests this Court under the APA to “hold 28 unlawful and set aside agency action, findings, and conclusions found to be arbitrary, 1 capricious, an abuse of discretion, or otherwise not in accordance with the law[.]” 2 (Doc. No. 62 ¶ 105, 5 U.S.C. § 706(2)(A).) For the reasons set out above, Defendants’ 3 sovereign immunity is waived for Plaintiffs’ Third claim because there has been final 4 agency action under 5 U.S.C. § 704. 5 This Court notes that a “court may issue a writ of mandamus under 28 U.S.C. § 1361 6 only if ‘(1) the individual’s claim is clear and certain; (2) the official’s duty is 7 nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no 8 other adequate remedy is available.’” Tsang v. Berryhill, 738 F. App’x 549, 550 (9th Cir. 9 2018) (quoting Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003)). Plaintiffs request 10 this Court to compel Defendants to adjudicate Plaintiffs’ enrollment applications in their 11 favor and accept the original recommendations of the Enrollment Committee. (Doc. No. 12 62 ¶¶ 106, 107.) However, as explained above, the APA “empowers a court only to compel 13 an agency to perform a ministerial or non-discretionary act, or to take action upon a matter, 14 without directing how it shall act.” Norton, 542 U.S. at 64 (internal citations omitted). 15 For the foregoing reasons, this Court has subject matter jurisdiction over the Third 16 claim and Defendants’ motion to dismiss Plaintiffs’ Third cause of action is DENIED. 17 D. Plaintiffs’ Second Claim is Dismissed as Moot 18 Group B Plaintiffs allege that Defendants violated Plaintiffs’ rights by failing to 19 notify Plaintiffs regarding the addition of subsection (f) within former 25 C.F.R. § 48.5. 20 (Id. ¶ 94.) Group B Plaintiffs bring this claim under the Fifth Amendment’s Due Process 21 and Equal Protection Clauses, the APA, former 25 C.F.R. § 48, and 5 U.S.C. § 551. 22 (Doc. No. 62 ¶ 92.) However, to the extent Plaintiffs’ constitutional and statutory rights 23 were violated, these regulations were removed in their entirety in 1996. See Alto v. Black, 24 738 F.3d 1111, 1116 n.1 (9th Cir. 2013). Thus, the Second claim is DISMISSED AS 25 MOOT. 26 E. The Fourth through Tenth Causes of Action 27 Defendants argue the fourth through tenth causes of action should be dismissed 28 because: (1) they are barred by sovereign immunity; (2) they are time-barred; and 1 (3) Plaintiffs fail to state a claim. (Doc. No. 68-1 at 3.) 2 Plaintiffs’ fourth cause of action is for violation of civil rights— unconstitutional 3 delegation, or no delegation of duty, authority, or power. (Doc. No. 62 at 36.) Plaintiffs 4 allege they do not have any documentation showing the required delegation of duty— 5 despite seeking it through a FOIA request. (Doc. No. 43 ¶¶ 120–21.) Nevertheless, 6 Plaintiffs assert Defendant Duschke was required to review enrollment recommendations 7 and was not authorized to return Plaintiffs’ applications to the enrollment committee. (Id. 8 ¶ 125.) Plaintiffs also assert Francis Muncy (who is not a party to this litigation) prepared 9 the roll without authority to do so. (Id. ¶ 124.) These allegations are both conclusory and 10 without factual basis. Accordingly, the Court dismisses this cause of action. 11 Plaintiffs sixth cause of action is for due process. Plaintiffs note in the TAC that 12 their claim arises under 28 U.S.C. § 1331 because it is a constitutional claim under the 13 Fourteenth Amendment. (Doc. No. 43 ¶ 142.) Defendants argue that Plaintiffs fail to show 14 a protected interest in any property or liberty since Plaintiffs can only show here that they 15 were eligible for membership. (Doc. No. 68-1 at 33.) The Court agrees. The only allegation 16 Plaintiffs make is that they were not given notice regarding changes the government made 17 to 25 C.F.R. § 48.5. (Doc. No. 43 ¶ 139.) But Plaintiffs do not show how this deprived 18 them of a protected interest in their property or liberty. 19 Plaintiff’s eighth cause of action is for breach of statutory fiduciary duty under 20 25 U.S.C. § 2. However, that section merely states that the commissioner of Indian Affairs 21 shall manage Indian affairs and matters arising out of Indian relations. Id. Defendants argue 22 this claim is time barred. Under 28 U.S.C. § 2401(a), there is a general statute of limitations 23 for civil actions against the United States which is “six years after the right of action 24 accrues.” Here, Defendants argue Plaintiffs’ claims “accrued decades ago.” (Doc. No. 68- 25 1 at 31.) Plaintiffs counter that the “FTCA may waive sovereign immunity for this claim.” 26 (Doc. No. 80 at 21.) However, the Court finds Plaintiffs have not adequately alleged a 27 cause of action either under the FTCA for a breach of fiduciary duty or a breach generally 28 under the purported statute. Accordingly, this claim is dismissed. 1 Plaintiffs’ ninth cause of action is for violation of civil rights – denial of inherited 2 tribal property rights. Similar to Plaintiffs’ other civil rights causes of action, Plaintiffs 3 state only conclusory allegations. Under this claim, Plaintiffs state that they have been 4 denied certain rights and suffered deprivations. (Doc. No. 43 ¶ 181.) Plaintiffs allege that 5 Defendants “have known that non-San Pasqual blood people have been living on the San 6 Pasqual land and receiving benefits since 1910, while the true San Pasqual descendants 7 have been denied their legal rights and Federal and Tribal benefits.” (Id. ¶ 182.) Moreover, 8 Plaintiffs allege they bring this claim under the APA, however, they only seek money 9 damages in their prayer for relief, which is impermissible as § 702 waives sovereign 10 immunity for all non-monetary claims. Accordingly, this cause of action fails to state a 11 claim and fails to allege sovereign immunity waiver, and thus is dismissed. 12 Plaintiffs’ tenth cause of action for violation of civil rights – unconstitutional 13 diminution of land rights granted pursuant to 1891 Patent signed by President Taft is also 14 dismissed as Plaintiffs state “the basis for this claim is the fiduciary duty that is owed to 15 Plaintiffs by the Defendants as discussed above.” (Doc. No. 80 at 25.) 16 IV. CONCLUSION 17 For the reasons stated herein, the Court GRANTS IN PART AND DENIES IN 18 PART Defendants’ motion to dismiss. (Doc. No. 68.) In summary: 19 Plaintiffs’ causes of action which are DISMISSED WITH PREJUDICE: 20 (1) The Second cause of action by Group B Plaintiffs; 21 (2) The Fourth cause of action for unconstitutional delegation of authority; 22 (3) The Fifth cause of action for violation of civil rights under Bivens, (Doc. No. 88); 23 (4) The Sixth cause of action for Due Process; 24 (5) The Eighth cause of action for breach of statutory fiduciary duty; 25 (6) The Ninth cause of action for violation of civil rights denial of inherited property 26 rights; 27 (7) The Tenth cause of action for violation of civil rights – unconstitutional 28 diminution of land rights granted pursuant to 1891 Patent signed by President Taft; 1 and 2 (8) The Eleventh cause of action for Conspiracy, (Doc. No. 88). 3 4 Plaintiffs’ causes of action which survive: 5 (1) The First cause of action under the APA; 6 (2) The Third cause of action for declaratory relief, however the Court cannot direct 7 Defendants to grant Plaintiffs’ specified relief under this claim; 8 9 Plaintiffs’ causes of action which are DISMISSED WITH LEAVE TO AMEND: 10 (1) The Seventh Cause of Action for equal protection, (Doc. No. 88). 11 12 Plaintiffs fourth—and likely final—amended complaint is due _ by 13 ||September 8, 2019. Plaintiffs may only amend their complaint in accordance with the 14 || Court’s instruction here and in its prior order, (Doc. No. 88). 15 IT IS SO ORDERED. 16 |! Dated: August 16, 2019 | ZS Zt □□□ Hon. Anthony J.Battaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 12