United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
Tabibian brings two motions before the court. Tabibian first
moves the court for an order compelling the Secretary of the
Interior and the Bureau of Indian Affairs (“BIA”)
to enter into a stipulation and an order remanding to the BIA
with instructions to place Tabibian onto the Western Shoshone
judgment roll. ECF No. 26. The defendants responded but no
reply was filed. ECF No. 30. Tabibian also moves the court
for an order of final judgment that approves the BIA's
subsequent actions, prevents the disenrollment of Tabibian
from the Western Shoshone judgment roll, and compels the
payment of funds to Tabibian. ECF No. 36. The defendants
opposed the motion, and Tabibian replied. ECF Nos. 37, 38.
The court now denies both motions, finding the case is moot.
Western Shoshone Claims Distribution Act was passed in 2004.
Pub L. 108-270, 118 Stat. 805. To make a claim for recovery
under the Act, a person must be placed on the Western
Shoshone judgment roll. Id. To be placed on the
judgment roll, the person must be at least ¼ blood
quantum level of Western Shoshone. Id.
applied to be placed on the judgment roll based on her
heritage. ECF No. 26. Both her great-grandfather and
her great-grandmother were 4/4 blood quantum level of Western
Shoshone. Id. The BIA denied Tabibian's
application for her failure to be ¼ blood quantum
level of Western Shoshone but without explaining how it had
determined her blood quantum level. Id.
therefore sued the defendants, alleging violations of due
process, of equal protection, and of the Administrative
Procedure Act. ECF No. 1. The case was voluntarily remanded
to the BIA on the parties' stipulation in August 2015.
ECF Nos. 7, 9. The court's order approving the
stipulation constituted a final judgment in this action as to
Tabibian. ECF No. 9.
years passed without contact between the parties regarding
Tabibian's placement on the judgment roll. ECF No. 26. As
a result, in October 2017, Tabibian moved the court for an
order that compels the defendants to stipulate to placing her
onto the judgment roll and an order directing the defendants
to do so. ECF No. 26. Tabibian was added to the judgment roll
on November 14, 2017. ECF No. 30, 36, 38.
Tabibian did not receive the funds owed to her under the Act
as of November 29, 2017. ECF No. 36. She therefore moved for
an order of final judgment. Id. The defendants
opposed the motion. ECF No. 37.
no longer presents a case or controversy for Article III
purposes and is therefore moot “when the issues
presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Rosebrock v.
Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (quoting
Already, LLC v. Nike, Inc., 586 U.S. 85, 91 (2013)
(internal quotation marks omitted)). But courts hesitate to
declare a case moot when a party has voluntarily ceased the
challenged activity. Am. Cargo Transp., Inc. v. United
States, 625 F.3d 1176, 1179 (9th Cir. 2010). Courts
hesitate to dismiss a case as moot based on a party's
voluntary cessation of the challenged activity because a
dismissal for mootness would allow the party to resume the
challenged activity after the case was dismissed.
Rosebrock, 745 F.3d at 971.
the doctrine of mootness ordinarily considers the possibility
of a party voluntarily ceasing the challenged activity in bad
faith, the court must “presume the government is acting
in good faith” if it is the party that voluntary ceases
the challenged activity. Am. Cargo Transp., 625 F.3d
at 1180. But the government still “bears the heavy
burden of showing that the challenged conduct cannot
reasonably be expected to start up again.”
Rosebrock, 745 F.3d at 971.
policy change not reflected in statutory changes or even in
changes in ordinances or regulations will not necessarily
render a case moot … but it may do so in certain
circumstances….” Id. (internal
citations omitted). While a definitive test to determine
mootness under circumstances involving voluntary cessation
does not yet exist, five factors make mootness more likely:
“(1) the policy change is evidenced by language that is
broad in scope and unequivocal in tone; (2) the policy change
fully addresses all of the objectionable measures that the
government officials took against the plaintiffs in the case;
(3) the case in question was the catalyst for the
agency's adoption of the new policy; (4) the policy has
been in place for a long time when [the court] consider[s]
mootness; and (5) since the policy's implementation[, ]
the agency's officials have not engaged in conduct
similar to that challenged by the plaintiff.”
Id. at 972 (internal citations and punctuation marks
omitted). Conversely, mootness is not likely when “the
new policy could be easily abandoned or altered in the
future.” Id. (internal citations and
punctuation marks omitted).
brings two motions before the court. ECF Nos. 26, 36. The
court first resolves the motion for an order compelling the
defendants to enter into stipulation. The ...