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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2003 Decided August 1, 2003
No. 02-5139
THE MASHPEE WAMPANOAG TRIBAL COUNCIL, INC.,
APPELLEE
v.
GALE A. NORTON, SECRETARY,
UNITED STATES DEPARTMENT OF THE INTERIOR,
AND NEAL A. MCCALEB, ASSISTANT SECRETARY FOR
INDIAN AFFAIRS,
UNITED STATES DEPARTMENT OF THE INTERIOR,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00111)
Katherine J. Barton, Attorney, U.S. Department of Justice,
argued the cause for appellants. With her on the briefs were
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Elizabeth A. Peterson and Silvia Sepulveda–Hambor, Attor-
neys, and Scott Keep, Attorney, U.S. Department of Interior.
Robert E. Jordan III argued the cause for appellee. With
him on the brief was Cynthia Taub.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: This case involves a petition by
Mashpee Wampanoag Tribal Council, Inc., for recognition by
the United States as an Indian tribe. The Secretary of the
Interior appeals an order of the district court finding the
Bureau of Indian Affairs (BIA) unreasonably delayed acting
upon the petition, in violation of the Administrative Procedure
Act, 5 U.S.C. §§ 555(b), 706(1), and requiring the Bureau to
decide the matter within one year. Because we believe the
district court misapplied the law of agency delay, we send the
case back to the district court for further proceedings.
I. Background
A federally-recognized American Indian tribe is entitled to
significant privileges, including exemption from state and
local jurisdiction — including laws regulating gambling —
and the right of its members to participate in an array of
welfare programs. Although the Congress has recognized
tribes through legislation in recent years, it is ordinarily up to
the Secretary of the Interior, through a painstaking bureau-
cratic process, to determine whether the United States will
recognize the sovereignty of a putative tribe. See generally
25 C.F.R. Part 83.
Mashpee is a corporation that represents the interests of
some 1,500 residents of Cape Cod, Massachusetts. Its quest
for federal recognition began in the 1970s, when it first
notified the BIA of its intent to seek recognition. It filed a
formal letter of intent, however, only in 1980. See 25 C.F.R.
§ 83.4. Then, perhaps because it was distracted by its efforts
to gain recognition through litigation, see, e.g., Mashpee Tribe
v. Sec’y of the Interior, 820 F.2d 480, 482 (1st Cir. 1987)
3
(seeking recognition and title to certain lands pursuant to
Indian Nonintercourse Act, 25 U.S.C. § 177), Mashpee did
not file its petition with the BIA for another decade (in
September 1990). After an initial review, the BIA’s Branch
of Acknowledgment and Recognition (BAR) in July 1991 sent
Mashpee a ‘‘letter of obvious deficiency’’ requesting additional
information. See 25 C.F.R. § 83.10(b). Mashpee took four
and a half years to respond. Upon receipt of the response in
January 1996, the BAR notified Mashpee that it was placing
the petition on its list of applications ‘‘ready, waiting for
active consideration.’’
The ‘‘ready’’ list is a queue, with priority established on a
first-come basis. No statute or regulation specifies how
quickly the queue must move along — in contrast to the
timeframe for processing a petition once it is under active
consideration, see id. §§ 83.10(h)-(l ) — and the pace is gla-
cial. As of August 2001 there were 10 petitions on the list,
six of which had been waiting there for at least five years.
U.S. Gen. Accounting Office, Indian Issues: Improvements
Needed in Tribal Recognition Process 15 (2001). The GAO
estimated that it could take 15 years to resolve all the
petitions then awaiting active consideration. Id. at 16.
Frustrated by that prospect, Mashpee sued the Secretary,
claiming unreasonable delay in violation of the APA and
seeking an order compelling the BIA to act upon the petition.
The district court, after weighing the considerations relevant
to such a claim, as summarized in Telecommunications Re-
search & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984)
(TRAC), granted summary judgment for Mashpee, ordered
the BIA immediately to place Mashpee’s petition on active
consideration, and required the Secretary to issue a final
decision within one year. Mashpee Wampanoag Tribal
Council, Inc. v. Norton, 180 F. Supp. 2d 130, 136–37 (D.D.C.
2001). The Secretary appeals.
II. Analysis
The Secretary disputes the district court’s jurisdiction to
hear Mashpee’s claim of unreasonable delay, its conclusion
4
that the BIA had not acted upon Mashpee’s petition within a
reasonable time, and its order compelling the BIA to take a
decision within one year. Before we consider those issues,
however, we must consider Mashpee’s claim that this appeal
is untimely.
A. Timeliness
The Secretary filed a notice of appeal 55 days after the
district court denied her motion for reconsideration of the
summary judgment order. Ordinarily that would satisfy the
appellate filing deadline. See Fed. R. App. P. 4(a)(4)(A)(iv)
(60–day time period in which to file appeal runs from entry of
order disposing of motion to alter or amend judgment). In
this case, however, Mashpee argues the Secretary may not
invoke the tolling provision of FRAP 4 because her motion for
reconsideration was both untimely, see Fed. R. Civ. P. 59(e)
(setting 10–day deadline), and defective in that it did not
‘‘state with particularity the grounds therefor,’’ see Fed. R.
Civ. P. 7(b)(1).
A motion under Rule 59(e) must be filed within 10 days of
the challenged order, not including weekends, certain speci-
fied national holidays (including Christmas Day and New
Year’s Day), or ‘‘any other day appointed as a holiday by the
President.’’ Fed. R. Civ. P. 6(a). In this case, the district
court granted summary judgment on December 21, 2001.
The Secretary filed her motion on January 9, 2002. Exclud-
ing weekends, Christmas Day, and New Year’s Day, that was
11 days after the court issued its order.
Whether the Secretary’s motion for reconsideration was
timely, therefore, depends upon whether Christmas Eve
should also be excluded from the computation as a ‘‘day
appointed as a holiday by the President.’’ As the Secretary
points out, President Bush directed that ‘‘all executive branch
departments and agencies of the Federal Government shall
be closed and their employees excused from duty’’ on Decem-
ber 24, 2001, with exceptions for national security. Exec.
Order No. 13,238, 66 Fed. Reg. 63,903 (Dec. 5, 2001). The
President’s order also provided that December 24 would fall
within the scope of various laws governing holiday pay and
5
leave for federal workers. Id. By virtue of the executive
order, the Secretary maintains, Christmas Eve was a ‘‘day
appointed as a holiday by the President.’’
We have not previously had occasion to consider whether a
day has been ‘‘appointed as a holiday’’ within the meaning of
Rule 6(a), and the parties have been unable to cite any
particularly helpful authority, albeit not for want of trying.
True, as Mashpee points out, the Seventh Circuit has sug-
gested that for the President to declare a ‘‘holiday’’ he must
use that word. See Latham v. Dominick’s Finer Foods, 149
F.3d 673, 674 (1998). But the actual holding in that case was
that the disputed motion was timely because the courthouse
was closed on the day in question — as it was in this case.
On the precise issue before us, whether a day on which the
President closes the offices of the Executive Branch qualifies
as a ‘‘legal holiday’’ under Rule 6(a), neither Latham nor any
other case cited by the parties provides much guidance.
The purpose of the rule, however, is guidance enough.
Rule 6 generally is intended to provide ‘‘reasonable flexibility
concerning the measurement of time periods under the Fed-
eral Rules of Civil Procedure,’’ 4B Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1161 (3d
ed. 2002); Rule 6(a) specifically is intended to alleviate the
‘‘hardship’’ of allowing days of rest to shorten already tight
deadlines, Fed. R. Civ. P. 6 advisory committee’s note. When
the President gives all employees in the Executive Branch a
day off, we believe Rule 6(a) contemplates a break for federal
litigators. To penalize the Secretary (rather drastically, by
dismissing her appeal) because the President did not use the
word ‘‘holiday’’ in the executive order would quite plainly run
counter to the purpose of the Rule. We conclude that
Christmas Eve, 2001 should be excluded in calculating the 10–
day period within which the Secretary had to file her motion;
hence, the motion was timely.
We also find the Secretary’s motion for reconsideration
sufficiently particular to toll the deadline for filing an appeal.
Because of the tolling function of certain motions, there is
good reason to ensure they not be devoid of content, filed
6
only to stop the clock. Here, as Mashpee argues, the bulk of
the Secretary’s motion for reconsideration was dedicated to
explaining why the Secretary needed another week to file her
supporting memorandum.
The motion was not so devoid of detail, however, as to fall
below the standard of specificity set by Rule 7, namely, that a
motion shall ‘‘state with particularity the grounds therefor.’’
The Secretary objected, on the ground that the issue was not
briefed, to
the Court’s conclusion that ‘‘[b]y failing to appeal from
Judge Urbina’s order [in another recognition case], BIA
essentially conceded that the otherwise dispositive fourth
TRAC factor – the effect of expediting delayed action on
agency activities of a higher or competing priority – is of
no weigh [sic] at all.’’
By claiming that a specific holding of the district court was
erroneous, and stating at least one basis for its claim of error,
the Secretary provided more detail than was held insufficient
in the cases upon which Mashpee relies. See, e.g., Talano v.
Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 760–
61 (7th Cir. 2001) (argument that district court ‘‘misapplied
fundamental principles of contract law’’ provides ‘‘no greater
specificity than saying nothing at all’’).
In sum, because we conclude that the Secretary’s motion
for reconsideration was both timely and sufficiently particu-
lar, the time for the Secretary to notice this appeal began to
run, pursuant to FRAP 6(a), only when the district court
denied the motion. The Secretary’s appeal is therefore time-
ly.
B. Unreasonable delay
We turn now to the district court’s conclusion that the BIA
failed to act upon Mashpee’s petition within a reasonable
time. But first a word about the district court’s jurisdiction.
The Secretary argues that because the BIA did not in its
regulations impose upon itself a ‘‘mandatory, nondiscretionary
duty to begin to consider the Mashpee petition’’ by a time
certain, the district court ‘‘lacked jurisdiction to exercise
7
mandamus to compel Interior to place the Mashpee petition
on active consideration.’’ That argument reflects a misunder-
standing of the nature of Mashpee’s claim.
Mashpee did not seek an order directing the BIA to comply
with its own regulations. Rather, Mashpee’s claim arose
under the Administrative Procedure Act, which imposes a
general but nondiscretionary duty upon an administrative
agency to pass upon a matter presented to it ‘‘within a
reasonable time,’’ 5 U.S.C. § 555(b), and authorizes a review-
ing court to ‘‘compel agency action unlawfully withheld or
unreasonably delayed,’’ id. § 706(1). Because no statute re-
stricts judicial review of the BIA’s recognition determinations
to the Courts of Appeals, compare TRAC, 750 F.2d at 77–78,
the district court had jurisdiction under 28 U.S.C. § 1331
(‘‘federal question’’) to determine whether the BIA was in
violation of § 555(b), and, if it was, to issue an appropriate
order pursuant to § 706. See Cutler v. Hayes, 818 F.2d 879,
887 n.61 (D.C. Cir. 1987); cf. TRAC, 750 F.3d at 79. See also
Costle v. Pacific Legal Foundation, 445 U.S. 198, 220 n.14
(1980).
Resolution of a claim of unreasonable delay is ordinarily a
complicated and nuanced task requiring consideration of the
particular facts and circumstances before the court. In
TRAC, we drew from our previous cases some factors usually
relevant to the inquiry. 750 F.2d at 80. They include: any
statutory timetable ‘‘or other indication of the speed with
which [the Congress] expects the agency to proceed’’; ‘‘the
nature and extent of the interests prejudiced by delay,’’ with
particular concern for matters of ‘‘human health and welfare’’;
and ‘‘the effect of expediting delayed action on agency activi-
ties of a competing or higher priority.’’ Id. We stated that
‘‘the time agencies take to make decisions must be governed
by a ‘rule of reason,’ ’’ and that ‘‘the court need not find any
impropriety lurking behind agency lassitude in order to hold
that agency action is unreasonably delayed.’’ Id. (citations
omitted); see also Cobell v. Norton, 240 F.3d 1081, 1096 (D.C.
Cir. 2001).
8
The parties agree that the delay experienced by Mashpee
and other groups seeking recognition as a tribe is attribut-
able, at least for the most part, to a shortage of resources
addressed to an extremely complex and labor-intensive task.
Each petition is evaluated against a demanding set of regula-
tory criteria by a three-person team comprising an historian,
a cultural anthropologist, and a genealogist. At the time of
the GAO Report, there were 13 petitions under active consid-
eration and 10 more on the ‘‘ready’’ list. GAO Report, above,
at 15. Yet in the previous five years, the number of BIA staff
assigned to evaluate petitions had been on average fewer than
11. Id. at 16. The rise of the Indian gaming industry over
the last 15 or so years, see id. at 32–38, California v. Cobazon
Band of Mission Indians, 480 U.S. 202 (1987) (confirming
authority of tribes to establish gambling operations without
regard to state regulation), has only exacerbated the problem.
GAO Report at 29. In recent years, interested parties have
turned repeatedly to the Congress to request additional re-
sources, but to no avail. Id. at 2.
Thus is it that under the present system a petitioner waits
for years in the queue for active consideration. By the time
Mashpee filed this lawsuit, its petition had been on the
‘‘ready’’ list for five years and it was still only third in line.
Of course, other petitioners had been waiting longer for a
decision, and the Secretary claimed that because of the
agency’s limited resources any relief to Mashpee would neces-
sarily come at the expense of those applicants.
We have noted before the importance of ‘‘competing priori-
ties’’ in assessing the reasonableness of an administrative
delay. In re Barr Laboratories, Inc., 930 F.2d 72, 75 (1991),
we refused to grant relief, even though all the other factors
considered in TRAC favored it, where ‘‘a judicial order put-
ting [the petitioner] at the head of the queue [would] simply
move[ ] all others back one space and produce[ ] no net gain.’’
There the petitioner was one of many firms waiting for the
FDA to pass upon their applications to produce generic
drugs. There was no evidence the agency had treated the
petitioner differently from anyone else, or that ‘‘officials not
working on Barr’s matters TTT [were just] twiddling their
9
thumbs.’’ Id. The problem stemmed from a lack of re-
sources; that, the court held, was ‘‘a problem for the political
branches to work out.’’ Id. The court also noted that
[t]he agency is in a unique — and authoritative —
position to view its projects as a whole, estimate the
prospects for each, and allocate its resources in the
optimal way. Such budget flexibility as Congress has
allowed the agency is not for us to hijack.
Id. at 76.
The district court recognized the force of Barr in this case:
‘‘Not only must BIA juggle competing duties under the
Acknowledgment Regulations and increasing collateral duties
with relatively limited resources, but the injury claimed by
Mashpee is applicable to all groups petitioning for acknowl-
edgment.’’ 180 F. Supp. 2d at 136 (citations omitted). In-
deed, the district court believed full ‘‘application of the TRAC
factors would TTT have dictated the denial of relief to the
Mashpee in this case: Congress knows about the situation
but has not yet taken definitive action to correct it, and BIA
is plugging along with its limited resources, business as usual,
doing the best it can.’’ Id.
Nevertheless, the district court declined to apply the ‘‘com-
peting priorities’’ factor because it believed that, by failing to
appeal a district court order in another case, Muwekma Tribe
v. Babbitt, 133 F. Supp. 2d 30 (D.D.C. 2000), in which a
petitioner was allowed to vault to the head of the queue, the
Secretary ‘‘essentially conceded that [this] otherwise disposi-
tive TTT factor TTT is of no weight at all.’’ Id.
The Secretary argues, as she argued in her motion for
reconsideration by the district court, that the court was
wrong to attach such significance to her predecessor’s failure
to appeal an adverse decision in another case. She points out
that the plaintiffs in Muwekma had a claim to expedited
review on the ground that their putative tribe previously had
been recognized. See 25 C.F.R. § 83.8 (exempting from all
other regulatory criteria petitioner that ‘‘provides substantial
evidence of unambiguous previous Federal acknowledg-
10
ment’’). Furthermore, the Secretary argues that there is no
legal basis — for example, in any estoppel doctrine — for
prohibiting her from pleading competing priorities and rely-
ing upon Barr in the present case.
Mashpee does not directly dispute the Secretary’s points.
It argues instead that the district court found as a fact the
BIA was ‘‘willing[ ] to allow one tribe to be moved ahead of
others,’’ and that finding is entitled to deference.
We agree with the Secretary that the district court erred
by disregarding the importance of there being ‘‘competing
priorities’’ for limited resources. The district court offered
no legal justification for precluding the Secretary from rely-
ing upon her ‘‘first-come’’ procedure, and we can conjure
none. If, as Mashpee suggests, the district court inferred
from the Secretary’s failure to appeal the Muwekma decision
that, as a matter of fact, the Department had abandoned its
interest in that procedure as a means of ordering its priori-
ties, then that finding was clearly erroneous. It should have
been clear to the district court from the different circum-
stances of the putative tribes in the two cases — as explained
by the Secretary in her motion for reconsideration — that
such an inference was unwarranted, especially on a motion for
summary judgment, in which the court may not rely upon any
but undisputed facts. In any event, the district court’s
approach was inconsistent with its obligation, in a case of
allegedly unreasonable delay, to examine ‘‘the facts of [the]
particular case’’ before it, Midwest Gas Users Ass’n v. FERC,
833 F.2d 341, 359 (D.C. Cir. 1987), and cannot be counte-
nanced in light of Barr and of the obvious significance of
competing priorities on the present record.
We shall therefore send the case back to the district court
for a full and fresh evaluation of whether the delay Mashpee
is encountering should be deemed ‘‘unreasonable.’’ The ulti-
mate issue, as in all such cases, will be whether the time the
BIA is taking to act upon the Mashpee’s petition satisfies the
‘‘rule of reason.’’ That issue cannot be decided in the ab-
stract, by reference to some number of months or years
beyond which agency inaction is presumed to be unlawful, but
11
will depend in large part, as we have said, upon the complexi-
ty of the task at hand, the significance (and permanence) of
the outcome, and the resources available to the agency.
Because we conclude that the district court’s finding of
unreasonable delay cannot stand, we need not address the
Secretary’s claim that the district court erred by requiring
the BIA to decide the petition within one year. We note,
however, that the requirement of a reviewing court under the
APA to ‘‘compel agency action unreasonably delayed’’ leaves
room for the district court to exercise discretion in determin-
ing how soon the agency must act. We also note that, if the
district court is unable to conclude that the delay to date has
been unreasonable, then it may nevertheless retain jurisdic-
tion over the case in order to monitor the agency’s assurances
that it is proceeding as diligently as possible with the re-
sources available to it. See TRAC, 750 F.2d at 80.
III. Conclusion
The Secretary’s appeal is timely. The district court erred
by holding the decision of the Secretary had been unreason-
ably delayed without first considering the BIA’s limited re-
sources and the effect of granting relief upon other equally-
deserving petitioners for recognition. The case is remanded
to the district court for further proceedings not inconsistent
with this opinion.
So ordered.