Eastern Pequot Tribal Nation v. Salazar ( 2013 )


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  •                         UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    )
    HISTORIC EASTERN PEQUOTS,            )
    )
    Plaintiff,        )
    )   Civil Action No. 12-58 (EGS)
    v.                     )
    )
    KENNETH SALAZAR, Secretary of        )
    the Interior, and LARRY              )
    ECHOHAWK, Assistant Secretary        )
    for Indian Affairs, United           )
    States DEPARTMENT OF THE             )
    INTERIOR                             )
    )
    Defendants.       )
    )
    MEMORANDUM OPINION
    Pending before the Court is a motion to dismiss or, in the
    alternative, to transfer, filed by defendants Kenneth Salazar,
    Secretary of the Interior, and Larry Echohawk, Assistant
    Secretary for Indian Affairs. 1      Upon consideration of the motion,
    the response and reply thereto, a brief filed by the State of
    Connecticut as Amicus Curiae, the entire record, and for the
    reasons stated below, defendants’ motion to dismiss is GRANTED.
    I.     BACKGROUND
    In 1978, the Eastern Pequot Indians of Connecticut filed a
    letter of intent seeking federal acknowledgment as an Indian
    1
    Pursuant to Federal Rule of Civil Procedure 25(d), Del
    Laveradure was substituted for Larry Echohawk when Mr. Laverdure
    was appointed as Acting Assistant Secretary-Indian Affairs
    between the time defendants’ motion to dismiss and defendants’
    reply brief was filed.
    tribe pursuant to 25 C.F.R. Part 83.      See 
    65 Fed. Reg. 17299
    (Mar. 31, 2000). 2   On June 24, 2002, the Assistant Secretary
    issued a Final Determination (“FD”) concluding that the
    “historical Eastern Pequot tribe, represented by two
    petitioners, the Eastern Pequot Indians of Connecticut and the
    Paucatuck Eastern Pequot Indians of Connecticut,” satisfied the
    regulatory criteria for federal acknowledgment.       See 
    67 Fed. Reg. 44,234
    -02 (Jul. 1, 2002).    A request for reconsideration of
    that decision was filed with the Interior Board of Indian
    Appeals (“IBIA”) within 90 days by the State of Connecticut and
    the towns of North Stonington, Ledyard and Preston.       In re Fed.
    Acknowledgment of the Historical E. Pequot Tribe, 41 IBIA 1; 
    67 Fed. Reg. 44,240
     (Jul. 1, 2002).       On May 12, 2005, the IBIA
    issued an Order Vacating and Remanding the determination.       41
    IBIA 1.   On October 14, 2005, the IBIA issued and published a
    Reconsidered Final Decision (“RFD”) in the Federal Register
    denying federal recognition to the tribe.       
    70 Fed. Reg. 60,099
    -
    2
    A petitioner seeking federal tribal acknowledgment must produce
    evidence satisfying seven mandatory criteria under the
    regulations: (a) identification as an American Indian entity on
    a substantially continuous basis since 1900; (b) existence as a
    distinct community from historical times to the present; (c)
    existence of political influence or authority from historical
    times to the present; (d) a governing document including
    membership criteria; (e) membership is composed of individuals
    who descend from a historical Indian tribe; (f) membership is
    composed of persons who are not members of an acknowledged
    tribe; and (g) the petitioner’s tribal status was not terminated
    by Congress. 
    25 C.F.R. § 83.7
    .
    2
    01 (Oct. 14, 2005).      The RFD stated that it was “final and
    effective upon the date of publication.”         
    Id.
    On January 12, 2006, the IBIA received a request from the
    “Historic Eastern Pequot Tribe” for reconsideration of the RFD.
    42 IBIA 133.    The IBIA dismissed the request for lack of
    jurisdiction.    
    Id.
        Specifically, the IBIA explained that it
    only has jurisdiction to review timely requests for
    reconsideration of a Final Determination, not a Reconsidered
    Final Determination.      In this case, the Final Determination was
    issued on July 1, 2002.      The Reconsidered Final Decision, issued
    October 14, 2005, was final and effective upon its publication.
    Plaintiff filed the initial complaint in this action on
    January 13, 2012.      ECF No. 1.   At that time, plaintiff was
    proceeding as the “Eastern Pequot Tribal Nation.”         The Court
    subsequently received a letter dated January 20, 2012 from James
    A. Cunha, Jr., Tribal Chairman of the Eastern Pequot Tribal
    Nation.   ECF No. 2.     Mr. Cunha explained that the complaint had
    not been reviewed or authorized by the Eastern Pequot Tribal
    Nation and he requested information as to how to withdraw the
    complaint.
    On February 3, 2013, the Court directed plaintiff to
    respond to Mr. Cunha’s letter.       On February 18, 2012, plaintiff
    moved to substitute the “Historic Eastern Pequots” for the
    Eastern Pequot Tribal Nation.       ECF No. 3.    The Court granted
    3
    that motion on February 22, 2012, and directed plaintiff to file
    an amended complaint.   The Amended Complaint was filed on March
    7, 2012.   ECF No. 5.
    On April 11, 2012, defendants moved to dismiss or, in the
    alternative, to transfer venue.    ECF No. 8.   Defendants argue
    that the Court lacks subject matter jurisdiction over
    plaintiff’s claims because they fall outside of the applicable
    statutes of limitations.     Defendant also argues that Counts VIII
    and IX fail to state a claim.    The motion is now ripe for the
    Court’s decision.
    II.   STANDARD OF REVIEW
    a. Rule 12(b)(1)
    Federal district courts are courts of limited jurisdiction
    and “possess only that power conferred by [the] Constitution and
    [by] statute.”   Logan v. Dep't of Veterans Affairs, 
    357 F. Supp. 2d 149
    , 152 (D.D.C. 2004) (quoting Kokkonen v. Guardian Life
    Ins. Co. of Am., 
    511 U.S. 375
    , 377 (1994)). “There is a
    presumption against federal court jurisdiction and the burden is
    on the party asserting the jurisdiction, the plaintiff in this
    case, to establish that the Court has subject matter
    jurisdiction over the action.”    
    Id.
     at 153 (citing McNutt v.
    Gen. Motors Acceptance Corp. of Ind., 
    298 U.S. 178
    , 182-83
    (1936)).
    4
    In assessing whether a complaint sufficiently alleges
    subject matter jurisdiction, the Court accepts as true the
    allegations of the complaint, see Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009), and liberally construes the pleadings such that
    the plaintiff benefits from all inferences derived from the
    facts alleged, Barr v. Clinton, 
    370 F.3d 1196
    , 1199 (D.C. Cir.
    2004).   However, “[a] pleading that offers labels and
    conclusions or a formulaic recitation of the elements of a cause
    of action will not do.      Nor does a complaint suffice if it
    tenders naked assertions devoid of further factual enhancement.”
    Iqbal, 
    556 U.S. at 678
     (internal citations, quotation marks and
    brackets omitted).   When the inquiry focuses on the Court's
    power to hear the claim, “the Court may give the plaintiff's
    factual allegations closer scrutiny and may consider materials
    outside the pleadings.”      Logan, 
    357 F. Supp. 2d at
    153 (citing
    Fed. R. Civ. P. 12(b)(1); Herbert v. Nat'l Academy of Scis., 
    974 F.2d 192
    , 197 (D.C. Cir. 1992); Grand Lodge of Fraternal Order
    of Police v. Ashcroft, 
    185 F. Supp. 2d 9
    , 13 (D.D.C. 2001)).
    b. Rule 12(b)(6)
    A motion to dismiss under Federal Rule of Civil Procedure
    12(b)(6) tests the legal sufficiency of a complaint.      Browning
    v. Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002).      A complaint
    must contain “a short and plain statement of the claim showing
    that the pleader is entitled to relief, in order to give the
    5
    defendant fair notice of what the . . . claim is and the grounds
    upon which it rests.”   Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    ,
    555 (2007) (internal quotation marks and citations omitted).
    While detailed factual allegations are not necessary, plaintiff
    must plead enough facts “to raise a right to relief above the
    speculative level.”   
    Id.
    When ruling on a Rule 12(b)(6) motion, the Court may
    consider “the facts alleged in the complaint, documents attached
    as exhibits or incorporated by reference in the complaint, and
    matters about which the Court may take judicial notice.”
    Gustave-Schmidt v. Chao, 
    226 F. Supp. 2d 191
    , 196 (D.D.C. 2002).
    The Court must construe the complaint liberally in plaintiff’s
    favor and grant plaintiff the benefit of all reasonable
    inferences deriving from the complaint.    Kowal v. MCI Commc’ns
    Corp., 
    16 F.3d 1271
    , 1276 (D.C. Cir. 1994).     However, the Court
    must not accept plaintiff’s inferences that are “unsupported by
    the facts set out in the complaint.”    
    Id.
       “[O]nly a complaint
    that states a plausible claim for relief survives a motion to
    dismiss.”   Ashcroft v. Iqbal, 
    556 U.S. 662
    , 679 (2009).
    III. DISCUSSION
    a. Standing
    As an initial matter, it does not appear that plaintiff has
    standing to bring its claims.    Lack of standing is a defect in
    subject matter jurisdiction.    See Haase v. Sessions, 
    835 F.2d
                               6
    902, 906 (D.C. Cir. 1987).   To establish Article III standing at
    the pleading stage, a plaintiff bears the burden of pleading
    that: “(1) it has suffered an ‘injury in fact’ that is (a)
    concrete and particularized and (b) actual or imminent, not
    conjectural or hypothetical; (2) the injury is fairly traceable
    to the challenged action of the defendant[s]; and (3) it is
    likely, as opposed to merely speculative, that the injury will
    be redressed by a favorable decision.”   Friends of the Earth,
    Inc. v. Laidlaw Envtl. Servs., 
    528 U.S. 167
    , 180–81 (2000)
    (citing Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560–61
    (1992)).   “This triad of injury in fact, causation, and
    redressability constitutes the core of Article III's case-or-
    controversy requirement, and the party invoking federal
    jurisdiction bears the burden of establishing its existence.”
    Steel Co. v. Citizens for a Better Env't, 
    523 U.S. 83
    , 103–04
    (1998).
    Plaintiff’s claims face a fundamental threshold problem: it
    is entirely unclear whether the plaintiff entity the “Historic
    Eastern Pequots” was affected in any way whatsoever by the RFD.
    Plaintiff initially brought its claims as the “Eastern Pequot
    Tribal Nation” but substituted the “Historic Eastern Pequots” as
    plaintiff after the Chief of the Eastern Pequot Tribal Nation
    disclaimed the lawsuit.   In its motion to substitute, counsel
    for the Historic Eastern Pequots set forth a detailed history of
    7
    intra-tribal disputes regarding federal recognition but those
    allegations shed no light on whether the “Historic Eastern
    Pequots” is a separate entity or can stand in the shoes of the
    entities subject to the RFD.   ECF No. 3.   Defendants argue,
    predominantly in a footnote, that the Historic Eastern Pequots
    lack standing to challenge the RFD because plaintiff’s
    relationship to the Eastern Pequot Tribal Nation is unclear.
    Defs.’ Mot. at 2, n.1-3 (citing Lujan, 
    504 U.S. at 560-61
    ).     The
    State of Connecticut, participating as Amicus Curiae, suggests
    that the lawsuit appears to arise out of an intra-tribal dispute
    over the appropriate response of the tribe to the RFD.    See
    Brief of the State of Conn. at 8 (discussing allegations
    regarding the Tribal Council’s reluctance to challenge the
    denial of the RFD).   In its opposition, plaintiff wholly fails
    to address the standing issue.    On reply, defendants argue,
    again predominantly in a footnote, that plaintiff failed to
    adequately respond to the arguments in the motion to dismiss
    regarding standing and that the Court could dismiss the
    complaint on that ground alone.    Defs.’ Reply at 1, n.3.
    At this stage in the litigation, the record is far from
    clear as to whether the “Historic Eastern Pequots” is the same
    entity as any of the entities who were affected by the RFD.     The
    RFD states that the “Eastern Pequot Indians of Connecticut (EP)
    and the Paucatuck Eastern Pequot Indians of Connecticut (PEP) do
    8
    not satisfy all seven mandatory criteria for acknowledgement in
    25 C.F.R. 83.7.”   See 
    70 Fed. Reg. 60,099
    -01.   The RFD also
    states that the FD, issued in 2002, had determined that the EP
    and the PEP would be acknowledged to be one group, the
    “Historical Eastern Pequot Tribe.”   See 
    67 Fed. Reg. 44234
    -02.
    The various names used in the RFD raise several issues, none of
    which have been adequately addressed by plaintiff.    Is the
    plaintiff, “Historic Eastern Pequots,” the same entity as the
    “Historical Eastern Pequot Tribe” mentioned in the FD?    The
    record is very unclear.   Plaintiff has further complicated the
    issue by referring to itself (or possibly other distinct tribes)
    in the complaint by various names.   For example, the complaint
    makes allegations as to the “Historic Eastern Pequots,” (Compl.
    ¶ 1), the “Historic Eastern Pequot Tribe,” (Compl. ¶ 2), the
    “Eastern Pequot Tribe,” (Id.), the “Eastern Pequots of
    Connecticut,” (Compl. ¶ 9), and the “Eastern Pequot Indians of
    Connecticut” (Compl. ¶ 13).   Plaintiff does not adequately
    address its relationship to any of these entities.    Nor does
    plaintiff address the fact that the Eastern Pequot Tribal Nation
    has expressly disclaimed this lawsuit, causing plaintiff to re-
    file the complaint under the name “Historic Eastern Pequots.”
    Ultimately, however, plaintiff bears the burden of establishing
    that it has standing to invoke the Court’s subject matter
    9
    jurisdiction, and plaintiff has failed to do so here. 3
    Accordingly, the Court finds that plaintiff has failed to meet
    its burden of pleading that it has standing, and the Court
    therefore lacks subject matter jurisdiction over this case.     See
    Lujan, 
    504 U.S. at 561
    . 4
    b. Counts I through VII
    In Counts I through VII of the amended complaint, plaintiff
    challenges the RFD issued by the IBIA and argues that the
    decision violated the Administrative Procedure Act and
    plaintiff’s constitutional rights.    In response, defendants
    argue that the Court lacks subject matter jurisdiction over
    Counts I through VII because those claims were not brought
    within the applicable statute of limitations.
    Plaintiff alleges that this Court has jurisdiction pursuant
    to the Administrative Procedure Act, 
    5 U.S.C. §§ 702-706
    3
    The Court emphasizes, however, that today’s decision relates
    only to the current plaintiff in this matter, the “Historic
    Eastern Pequots” and not to any of the other entities referred
    to in the complaint or the RFD, who are not parties to this
    action.
    4
    As discussed herein, the Court also finds that it lacks subject
    matter jurisdiction over the action on other grounds in addition
    to standing. See Sections II(b) and (c), infra. Because there
    is not a required “sequencing of jurisdictional issues,” the
    Court may dismiss this case on any available non-merits,
    jurisdictional basis. Ruhrgas AG v. Marathon Oil. Co., 
    526 U.S. 574
    , 575 (1999) (holding that although subject matter
    jurisdiction must precede a determination on the merits,
    district courts may choose among jurisdictional, threshold
    grounds for dismissal); see Grocery Mfrs. Ass’n v. EPA, 
    693 F.3d 169
    , 179 (D.C. Cir. 2012).
    10
    (“APA”).     Am. Compl. ¶ 4. 5   The APA provides a waiver of
    sovereign immunity, stating that “[a] person suffering legal
    wrong because of agency action, or adversely affected or
    aggrieved by agency action within the meaning of a relevant
    statute, is entitled to judicial review thereof.”       
    5 U.S.C. § 702
    .   This waiver of sovereign immunity is limited, however, by
    the applicable statute of limitations.       Specifically, under 
    28 U.S.C. § 2401
    (a) “every civil action commenced against the
    United States shall be barred unless the complaint is filed
    within six years after the right of action first accrues.”
    Limitations and conditions upon which the federal government
    consents to be sued will be strictly construed in favor of the
    sovereign.     Al-Aulaqi v. Obama, 
    727 F. Supp. 2d 1
    , 41 (D.D.C.
    2010) (citing Soriano v. United States, 
    352 U.S. 270
    , 276
    (1957)); see Block v. North Dakota, 
    461 U.S. 273
    , 287 (1983)
    (holding that when Congress attaches conditions to legislation
    5
    As defendants note, plaintiff also alleges that jurisdiction is
    proper under 
    28 U.S.C. § 1331
    , but that statute does not provide
    a waiver of sovereign immunity. See Walton v. Fed. Bureau of
    Prisons, 
    533 F. Supp. 2d 107
    , 114 (D.D.C. 2008) (determining
    that 
    28 U.S.C. § 1331
     does not waive the federal government’s
    sovereign immunity). Accordingly, subject matter cannot be
    based on section 1331. Plaintiff also alleges that jurisdiction
    is proper under 
    28 U.S.C. § 1337
     because it relates to
    “Congressional acts regulating commerce with Indian tribes.”
    Compl. ¶ 4. Counts I through VII relate to the decision of the
    IBIA, as opposed to any acts of Congress, and jurisdiction under
    Section 1337 is not proper. In any event, plaintiff did not
    challenge defendants’ characterization of the jurisdictional
    question as arising under the APA, and therefore the Court will
    analyze jurisdiction under the APA.
    11
    waiving the sovereign immunity of the United States, “those
    conditions must be strictly observed, and exceptions thereto are
    not to be lightly implied”).   Accordingly, the Court has subject
    matter jurisdiction over plaintiff’s claim only if it was
    brought within the six-year statute of limitations.
    Defendant argues that the statute of limitations in this
    action expired on October 14, 2011, six years after the
    publication of the RFD on October 14, 2005.   The Court agrees.
    A cause of action against an administrative agency first accrues
    as soon as the plaintiff may institute and maintain an action in
    court.   See Impro Prods., Inc. v. Block, 
    722 F.2d 845
    , 850 (D.C.
    Cir. 1983); Spannus v. Dep’t of Justice, 
    824 F.2d 52
    , 56 (D.C.
    Cir. 1987) (“A cause of action . . . ‘first accrues,’ within the
    meaning of § 2401(a), as soon as . . . the person challenging
    the agency action can institute and maintain a suit in court.”).
    In Counts I through VII of the amended complaint, plaintiff
    challenges the RFD issued by the Associate Deputy Secretary,
    notice of which was published in the Federal Register on October
    14, 2005.   The notice of the RFD expressly stated that it was
    “final and effective upon the date of publication of this
    notice, pursuant to 
    25 C.F.R. § 83.11
    (h)(3).”   See 
    70 Fed. Reg. 60,099
    -01 (Oct. 14, 2005).   25 C.F.R. Section 83.11(h)(3)
    provides that “[i]f a determination is reconsidered by the
    Assistant Secretary because of action by the Board remanding a
    12
    decision or because the Secretary has requested reconsideration,
    the reconsidered determination shall be final and effective upon
    publication of the notice of this reconsidered determination in
    the Federal Register.”
    Critically, the regulations do not provide for further
    reconsideration of a Reconsidered Final Determination.
    Plaintiff’s request for reconsideration, submitted to the IBIA
    on January 12, 2006, therefore did not act to toll the statute
    of limitations for the filing of an action challenging the RFD
    because an agency’s refusal to reconsider a final agency action
    does not create a new final agency action.    See Impro. Prods.,
    722 F.3d at 851 (citing Provisioners Frozen Express, Inc. v.
    ICC, 
    536 F.2d 1303
    , 1305 (9th Cir. 1976)).    As the IBIA
    explained, it only has jurisdiction to review requests for
    reconsideration of Final Determinations, not Reconsidered Final
    Determinations.    42 IBIA 133.   Thus, because plaintiff’s request
    for reconsideration of the Reconsidered Final Determination had
    no effect on the finality of the RFD, plaintiff was required to
    bring this action within six years of the issuance of the RFD,
    or by October 14, 2011.   Plaintiff’s initial complaint, which
    was not filed until January 13, 2012, exceeded that time period
    by three months.
    13
    i. The Statute of Limitations Should Not Be Tolled
    Plaintiff argues that the statute of limitations should be
    tolled for several reasons, none of which have merit.    Plaintiff
    first argues that it is protected by the Non-Intercourse Act, 
    25 U.S.C. § 177
    , which restricts the alienation of Indian land
    without Congressional approval.    The Act provides that “[n]o
    purchase, grant, lease, or other conveyance of lands, or of any
    title or claim thereto, from any Indian nation or tribe of
    Indians, shall be of any validity in law or equity, unless the
    same be made by treaty or convention entered into pursuant to
    the Constitution.”   Plaintiff appears to seek to re-characterize
    its claims as arising under the Non-Intercourse Act.
    As an initial matter, however, the complaint does not
    allege any specific claims under the Non-Intercourse Act, and
    only makes passing references to the Act. 6   None of the claims
    6
    For example, in the factual allegations, plaintiff argues that
    if the RFD is permitted to stand, plaintiff will be deprived of
    the “special trust relationship” mandated by the Act. Compl. ¶
    17 (Factual Allegations). Plaintiff also alleges that the RFD
    is “violative and contrary to the legislative intent and
    policies as set forth in the Non-Intercourse Act . . . .”
    Compl. ¶ 38 (Count III: Defendants’ Reversal of the Final
    Decision was Arbitrary and Capricious). Plaintiff also alleges
    that “the State [of Connecticut] effectuated the illegal sale of
    the reservation land for the mining interests in 1872 in
    contravention of the 1790 Non-Intercourse Act. . . . Neither the
    State as actual trustee, nor the Federal government as implied
    trustee, acted in the appropriate fiduciary capacity to protect
    the tribal interests . . . .” Compl. ¶ 55 (Count VI: “Failure
    to Estopp the State from Opposing the Tribe’s Federal
    Recognition”). Finally, plaintiff alleges that “[a]t all times
    14
    arise under the Non-Intercourse Act, nor has plaintiff alleged
    that jurisdiction would be proper under the Act.    Rather,
    plaintiff appears to argue that the denial of tribal status in
    the RFD was an arbitrary and capricious agency action under the
    APA, and that it had various negative effects, including that it
    is contrary to the legislative intent of the Non-Intercourse
    Act.
    Even if plaintiff had alleged that the defendants had
    violated the Non-Intercourse Act, however, plaintiff has failed
    to establish a prima facie case under the Act.    In order to do
    so, a plaintiff must show, among other things, that it is an
    Indian tribe.    Golden Hill Paugussett Tribe v. Weicker, 
    39 F.3d 51
    , 56 (2d Cir. 1994).    As plaintiffs contend, recognition by
    the IBIA is not the sole means of establishing tribal status for
    purposes of the Act.    Joint Tribal Council of the Passamaquoddy
    Tribe v. Morton, 
    528 F.2d 370
     (1st Cir. 1975) (“There is nothing
    in the Act to suggest that ‘tribe’ is to be read to exclude a
    bona fide tribe not otherwise federally recognized.”).    Courts
    may, however, defer resolution of tribal status to the IBIA.
    BGA, LLC v. Ulster County, N.Y., 
    2010 WL 3338958
    , at *9
    the Defendants have known or should have known of the illegal
    status of the land. The illegal original sale by the
    legislature in 1872 is in direct contravention of the Non-
    Intercourse Act of 1790 without congressional approval. . . .
    The failure of the Defendants to intercede with these
    transactions amount to complicity.” Compl. ¶ 96 (Count IX:
    Tortious Interference with Business Expectancy).
    15
    (N.D.N.Y. Aug. 24, 2010) (citing Golden Hill Paugussett Tribe,
    
    39 F.3d at 59
    ).      Deferral is particularly warranted where a
    plaintiff has already invoked the IBIA’s authority.      See Golden
    Hill Paugussett Tribe, 
    39 F.3d at 60
     (declining to decide
    whether plaintiff was an Indian tribe when plaintiff had a
    pending application for recognition with the IBIA).       Here,
    plaintiff has expressly been found not to be a tribe by the
    IBIA. 7    Unlike the case on which plaintiff principally relies,
    Joint Tribal Council of the Passamaquoddy Tribe, the parties
    have not stipulated that plaintiff is a tribe.     See 
    528 F.2d at 370
    .      Under these circumstances, the Court declines to invade
    the province of the IBIA to determine whether plaintiff or any
    related entities are tribes, particularly when the IBIA has
    already spoken on the issue.      In any event, plaintiff has failed
    to cite any case law supporting its argument that the Non-
    Intercourse Act would toll the statute of limitations in this
    case. 8    Accordingly, the Court finds that plaintiff’s references
    7
    There is, again, significant confusion as to the status of the
    current plaintiff “Historic Eastern Pequots” and therefore
    whether that entity is, in fact, one of the entities that was
    determined not to be a tribe by the October 14, 2005
    Reconsidered Final Determination. The Court finds, however,
    that even if plaintiff is correct that it can stand in the shoes
    of the entities determined not to be a tribe in the RFD, the
    Non-Intercourse Act would not apply to toll the statute of
    limitations for the reasons explained herein.
    8
    The cases cited by plaintiff involved only state claims. See
    Mohegan Tribe v. State of Connecticut, 
    638 F.2d 612
    , 615 (2d
    Cir. 1980) (stating that state law statutes of limitation have
    16
    to the Non-Intercourse Act do not toll the statute of
    limitations for challenging the RFD.
    Plaintiff also argues that the statute of limitations
    should be tolled because the complaint alleges “ongoing breaches
    of trust.”   In their reply, defendants characterize this
    argument as arising under the continuing claims doctrine.    The
    continuing claims doctrine “applies when the government owes a
    continuing duty to the plaintiffs . . . [such that] [e]ach time
    the government breaches the duty, a new cause of action arises.”
    Boling v. United States, 
    220 F.3d 1365
    , 1373-74 (Fed. Cir. 2000)
    (noting that the doctrine does not apply where a single
    governmental action causes a series of deleterious effects).    In
    this case, however, the statute of limitations under Section
    2401(a) is jurisdictional and cannot be tolled “by the
    application of judicially recognized exceptions . . . such as
    waiver, estoppel, equitable tolling, fraudulent concealment, the
    discovery rule, and the continuing violations doctrine.”     Terry
    v. U.S. Small Bus. Admin., 
    699 F. Supp. 2d 49
    , 54 (D.D.C. 2010)
    (quoting Felter v. Norton, 
    412 F. Supp. 2d 118
    , 122 (D.D.C.
    2006); see also W. Va. Highlands Conservancy v. Johnson, 
    540 F. Supp. 2d 125
    , 143 (D.D.C. 2008) (EPA’s continued failure to file
    consistently been rejected as a defense to the Act). Because
    this claim arises under the federal government’s limited waiver
    of sovereign immunity under the APA, it is not at all clear that
    the six-year statute of limitations under the APA would be
    tolled by a claim under the Non-Intercourse Act.
    17
    report after publication deadline as required by regulations did
    not toll statute of limitations because of jurisdictional nature
    of the limitations period).     Here, Section 2401(a) is
    jurisdictional and required plaintiff to file its claim within
    six years of the RFD.   Because plaintiff’s claim was filed three
    months late, this court lacks subject matter jurisdiction over
    plaintiff’s claims. 9
    Accordingly, for the reasons explained above, Counts I
    through VII of the amended complaint were not timely filed and
    the Court lacks subject matter jurisdiction to review them.
    Counts I through VII will therefore be DISMISSED.
    c. Counts VIII and IX
    Count VIII alleges that defendants have “tortiously harmed
    plaintiff’s efforts to engage in lawful commerce” by failing to
    properly regulate gaming among Indian tribes in the State of
    Connecticut.   Count VIII also purports to allege a violation of
    the Sherman Antitrust Act.     Count IX alleges that defendants’
    negligent regulation of gaming has tortiously interfered with
    plaintiff’s business expectancy.       Defendants argue that Counts
    9
    For substantially the same reasons, the Court also finds that
    plaintiff’s arguments regarding fraudulent concealment and
    equitable estoppel cannot toll the statute of limitations set
    forth in Section 2401. See Terry, 
    699 F. Supp. 2d at 54
    . Even
    if there were no such jurisdictional bar to asserting these
    defenses, plaintiff has failed to establish that any facts were
    fraudulently concealed from it, particularly in light of the
    publication of the RFD in the Federal Register, and plaintiff
    has failed to establish a basis for equitable estoppel.
    18
    VIII and IX should be dismissed for lack of subject matter
    jurisdiction and because they fail to state a claim.
    As an initial matter, plaintiff does not make clear the
    jurisdictional basis of its tort claims in Counts VIII and IX.
    In the jurisdictional allegations in the complaint, plaintiff
    alleges that jurisdiction is proper under 5. U.S.C. § 702, the
    Administrative Procedure Act, and 
    28 U.S.C. § 1337
    , which states
    that “district courts shall have original jurisdiction of any
    civil action or proceeding arising under any Act of Congress
    regulating commerce. . . .” 10   In the complaint, plaintiff
    alleges that jurisdiction is proper under Section 1337 because
    the case relates to “congressional acts regulating commerce with
    Indian tribes.”   These allegations were made generally, however,
    and plaintiff does not identify the specific jurisdictional
    basis for Counts VIII and IX.
    Defendants argue that because plaintiff’s claims sound in
    tort and seek money damages, jurisdiction is not proper under
    the APA.   See 
    5 U.S.C. § 702
     (providing relief “other than money
    damages”); Benoit v. U.S. Dep’t of Agric., 
    608 F.3d 17
    , 20 (D.C.
    Cir. 2010) (holding that suits for money damages are not within
    the limited waiver of sovereign immunity found in the APA).    The
    Court agrees.   Furthermore, plaintiff does not specifically
    10
    As noted above, plaintiff also alleges jurisdiction is proper
    under 28 U.S.C. 1331, which does not provide a waiver of
    sovereign immunity.
    19
    respond to this argument in its opposition to the motion to
    dismiss.   Rather, plaintiff’s opposition alleges that the
    applicable statutes of limitation should be tolled, an argument
    that fails for the reasons explained above.   Because plaintiff
    failed to respond to defendants’ argument that the APA does not
    apply at all to Counts VIII and IX, the Court will deem the
    argument to be conceded.   See Hopkins v. Women’s Div., Gen. Bd.
    of Global Ministries, 
    238 F. Supp. 2d 174
    , 178 (D.D.C. 2002)
    (citing FDIC v. Bender, 
    127 F.3d 58
    , 67-68 (D.C. Cir. 1997))
    (“It is well understood in this Circuit that when a plaintiff
    files an opposition to a motion to dismiss addressing only
    certain arguments raised by the defendant, a court may treat
    those arguments that the plaintiff failed to address as
    conceded.”). 11
    Plaintiff also failed to respond to defendants’ alternative
    argument under the Federal Tort Claims Act, 
    28 U.S.C. §§ 2679
    ,
    et seq. (“FTCA”).   Even though plaintiff did not allege the FTCA
    11
    Moreover, even if the APA did apply, the allegations in Counts
    VIII and IX refer to events that allegedly occurred more than
    six years prior to the filing of the complaint. See Amend.
    Compl. ¶ 45, 80-81 (alleging in Count VIII that after the
    federal recognition of the Mohegan tribe in 1996, the “Pequot-
    Mohegan Fund and its enabling agreements” became an unlawful
    restraint of trade” in violation of the Sherman Antitrust Act);
    ¶ 92 (discussing in Count IX a 1997 management contract with
    Trump enterprises regarding engaging in federal recognition
    efforts). Even if plaintiff had properly pled that subject
    matter jurisdiction existed under the APA, its claims would far
    exceed the six-year statute of limitations.
    20
    as a basis for jurisdiction over its tort claims, defendants
    argue that that jurisdiction would not be proper under the FTCA
    because plaintiff has failed to allege that its complaint was
    timely filed or that plaintiff exhausted its administrative
    remedies under the FTCA.    The FTCA permits the recovery of money
    damages from the government for claims sounding in tort under
    limited circumstances.   Specifically, claims under the FTCA are
    “forever barred unless . . . presented in writing to the
    appropriate federal agency within two years after such claim
    accrues.”   
    Id.
       Defendants contend that because plaintiff did
    not plead that it had exhausted its administrative remedies as
    to the torts alleged in Counts VIII and IX, the claims should be
    dismissed for lack of subject matter jurisdiction.   See McNeil
    v. United States, 
    508 U.S. 106
    , 113 (1993) (affirming dismissal
    for lack of subject matter jurisdiction where the petitioner
    filed his FTCA claim before presenting his claim to the
    appropriate federal agency); Upshaw v. United States, 
    669 F. Supp. 2d 32
    , 45 (D.D.C. 2009) (dismissing for lack of subject
    matter jurisdiction where plaintiff failed to plead that he
    presented his claim to the appropriate federal agency).
    Plaintiff failed to respond to this argument and the Court deems
    it to be conceded. See Hopkins, 
    238 F. Supp. 2d at 178
    .
    Accordingly, the Court finds that plaintiff has conceded the
    issue of exhaustion under the FTCA and the Court lacks subject
    21
    matter jurisdiction over the claims to the extent they seek
    relief under the FTCA.
    Plaintiff’s remaining jurisdictional allegation is also
    insufficient to establish that this Court has subject matter
    jurisdiction over this case.   Plaintiff alleges generally that
    subject matter jurisdiction is appropriate over the entire case
    under 
    28 U.S.C. § 1337
    , which provides that federal district
    courts will have jurisdiction over proceedings arising from acts
    of Congress.   The statute does not, however, contain an express
    waiver of sovereign immunity, see 
    28 U.S.C. § 1337
    , and
    plaintiff has failed to allege how a waiver might exist in this
    case.   Plaintiff bears the burden, however, of establishing by a
    preponderance of the evidence that the Court possesses
    jurisdiction over its case.    Roum v. Bush, 
    461 F. Supp. 2d 40
    ,
    45 (D.D.C. 2006).   This is particularly important in actions
    involving agencies of the government or employees of the
    government acting in their official capacities, because they are
    immune from suit unless that immunity has been expressly waived.
    
    Id.
     (citing Albrecht v. Comm. on Empl. Benefits of Fed. Reserve
    Empl. Benefits Sys., 
    357 F.3d 62
    , 67 (D.C. Cir. 2004) and Clark
    v. Library of Cong., 
    750 F. 2d 89
    , 102-04 (D.C. Cir. 1984)).
    Here, because plaintiff has not set forth any basis for a waiver
    of sovereign immunity under 
    28 U.S.C. § 1337
    , the Court finds
    22
    that plaintiff has not established its burden of establishing
    that the Court has jurisdiction under that statute. 12
    Finally, plaintiff has not alleged that any of the other
    statutes cited in Counts VIII and IX grant a waiver of sovereign
    immunity.   For example, in Count VIII, plaintiff alleges that
    defendants violated the Indian Gaming Regulatory Act (“IGRA”),
    
    25 U.S.C. § 2701
    .   Plaintiff does not allege, however, that the
    IGRA provides a waiver of sovereign immunity or a private right
    of action against the federal government or its employees.
    Similarly, plaintiff does not allege that the Sherman Act, 
    15 U.S.C. § 1
    , et seq., exposes the United States to liability, nor
    does it appear to do so.   Sea-Land Serv., Inc. v. Alaska R.R.,
    
    659 F.2d 243
    , 245 (D.C. Cir. 1981) (“The Sherman Act, we
    conclude, does not expose United States instrumentalities to
    liability, whether legal or equitable in character, for conduct
    alleged to violate antitrust constraints.”).   Accordingly,
    plaintiff has failed to carry its burden of establishing subject
    matter jurisdiction by a preponderance of the evidence, and the
    Court finds that it lacks subject matter jurisdiction over
    Counts VIII and IX.
    12
    Indeed, it appears unlikely that plaintiff could establish a
    waiver of sovereign immunity under 
    28 U.S.C. § 1337
    . The
    statute is similar to that of 
    28 U.S.C. § 1331
    , which has been
    held not to grant a waiver of sovereign immunity. Like Section
    1331, Section 1337 addresses where certain causes of action may
    be brought, not who may be a party to those cases.
    23
    Accordingly, the Court will DISMISS Counts VIII and IX for
    lack of subject matter jurisdiction.
    IV.     CONCLUSION
    For the foregoing reasons, defendants’ Motion to Dismiss is
    GRANTED.    Because the Court’s decision dismisses the case, the
    Court will DENY as moot defendants’ alternative motion to
    transfer the case to the District of Connecticut.   An
    appropriate Order accompanies this Memorandum Opinion.
    Signed:     Emmet G. Sullivan
    United States District Judge
    March 31, 2013
    24