United States District Court, D. Alaska
GWITCHYAA ZHEE CORPORATION and GWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs,
v.
CLARENCE ALEXANDER and DACHO ALEXANDER, Defendants/Third-Party Plaintiffs,
v.
DAVID BERNHARDT, Secretary of Interior, in his official capacity, Third-Party Defendant.
ORDER
H.
RUSSEL HOLLAND, UNITED STATES DISTRICT JUDGE
Third-Party
Plaintiffs' Motion for Reconsideration
Third-party
plaintiffs Clarence and Demetrie (Dacho) Alexander move for
partial reconsideration[1] of the court's order[2] granting in part
and denying in part the Alexanders' motion for leave to
file an amended third-party complaint. The court called upon
the third- party defendant, the Secretary of Interior, to
file a response, [3] which the Secretary has timely
filed.[4] Oral argument on the motion for
reconsideration was not requested and is not deemed
necessary.
Discussion
“Reconsideration
is appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the
initial decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” School
Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993). The Alexanders argue that
the court committed two clear errors.
First,
the Alexanders contend that the court made an error of fact
when it found that “Count IV acknowledges challenged
[third-party defendant] 2013-2014 actions constitute
‘approval of the 2014 plan of survey. . .
.'”[5] This argument is not well-taken. The court
made no factual findings in its order on the Alexanders'
motion for leave to amend. All the court did was state that
the Alexanders may be able to assert a plausible APA claim in
connection with the Secretary's approval of the 2014 plan
of survey. The Alexanders' motion for reconsideration on
this issue is denied.
Secondly,
the Alexanders argue that the court erred in not giving them
leave to amend to assert non-APA, non-Bivens
procedural due process claims against the Secretary. The
Alexanders contend that these proposed freestanding
procedural due process claims were asserted in their proposed
Counts I and IV and are based on allegations that the
Secretary violated the Alexanders' constitutional due
process rights in 2008 and 2013-2014.
“[T]he
APA is a framework statute that provides the generally
applicable means for obtaining judicial review of actions
taken by federal agencies.” Clouser v. Espy,
42 F.3d 1522, 1528 n.5 (9th Cir. 1994). “Generally,
except where a party challenges an agency action as violating
a federal law-be it a statute, regulation, or constitutional
provision-that has been interpreted as conferring a private
right of action, . . . review under a framework statute such
as the APA is the sole means for testing the legality of
federal agency action.” Id. The Alexanders are
arguing that they should be allowed to assert claims alleging
that the Secretary violated the due process clause of the
Fifth Amendment. The Secretary contends that “the Fifth
Amendment does not provide a private right of action[,
]”[6] but cites to no authority in support of
this contention. The court's independent research has
located no support for this general proposition. In fact, the
court has found cases in which plaintiffs have been allowed
to assert both APA claims and non-APA, non-Bivens
due process claims against federal agencies. See,
e.g., Pinnacle Armor, Inc. v. United
States, 648 F.3d 708, 714 (9th Cir. 2011); Calvillo
Manriquez v. Devos, 345 F.Supp.3d 1077, 1099 (N.D. Cal.
2018); Cost Saver Management, LLC v. Napolitano, No.
10-2105-JST (CWx), 2011 WL 13119439, at *1, 6 (C.D. Cal. June
7, 2011); see also, Shewmaker v. Minchew,
666 F.2d 616, 617, (C.A.D.C. 1981) (declining to “adopt
the District Court's reasoning that appellant has no
private right of action under the Fifth Amendment because an
alternative remedy is available through administrative
procedures”).
Thus,
the court concludes that it erred in not giving the
Alexanders leave to amend their third-party complaint to
assert non-APA, non-Bivens procedural due process
claims against the Secretary. The Alexanders' motion for
reconsideration is granted on this issue.
Upon
reconsideration, the Alexanders are given leave to amend
their third-party complaint to assert non-APA,
non-Bivens procedural due process claims. Although
it is the court's perception that the Alexanders'
proposed third-party amended complaint does not plainly and
clearly assert non-APA, non-Bivens procedural due
process claims, it is possible that they may be able to
allege such claims.
Conclusion
Based
on the foregoing, the Alexanders' motion for
reconsideration is denied in part and granted in part. Upon
reconsideration, the Alexanders' motion for leave to
amend their third-party complaint is again granted in part
and denied in part. The Alexanders' motion for leave to
amend is denied as to the equitable estoppel claim proposed
in Count III. The motion for leave to amend is otherwise
granted.
Because
the Alexanders' motion to amend is being granted in part
and denied in part, the Alexanders may not file the proposed
amended third-party complaint that is attached to their
motion for leave to amend. The Alexanders may file an amended
third-party complaint that asserts APA claims based on the
BLM's acceptance of the 2008 Map of Boundaries and
approval of the 2014 plan of survey and that separately
asserts non-APA, non-Bivens procedural due process
claims. The Alexanders are reminded that their amended
third-party complaint should contain a “short and plain
statement” of each claim for relief and that each
allegation should be “simple, concise and
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