FILED
NOT FOR PUBLICATION
MAY 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NISENAN TRIBE OF THE NEVADA No. 14-15541
CITY RANCHERIA; et al.,
D.C. No. 5:10-cv-00270-JF
Plaintiffs - Appellants,
v. MEMORANDUM*
SALLY JEWELL, in her official capacity
as Secretary of the Interior; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted May 13, 2016**
San Francisco, California
Before: WARDLAW, PAEZ, and BEA, Circuit Judges.
Plaintiff-Appellants, The Nisenan Tribe of the Nevada City Rancheria,
Richard Johnson, and other individual members of the Nevada City Rancheria
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“Appellants”), assert that the district court erred in dismissing their claims with
prejudice on the grounds that such claims were time-barred under the
Administrative Procedure Act’s (“APA’s”) six-year statute of limitations. See 28
U.S.C. § 2401. We find no error in the district court’s analysis, and we affirm.
I.
The district court did not err in granting Appellant’s Rule 60(a) motion to
correct a clerical error in the 1983 Stipulation for Entry of Judgment (the
“Stipulation”) in the Hardwick action nunc pro tunc,1 rather than as of the date of
the court’s March 7, 2014 order. To the extent Appellants are challenging the
district court’s jurisdiction to enter such order nunc pro tunc, our review is de
novo. See United States v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). To the
extent Appellants challenge the district court’s exercise of its discretion to issue an
order nunc pro tunc, we review the court’s ruling for abuse of discretion. Atkins v.
Wain, Samuel & Co., 69 F.3d 970, 973 (9th Cir. 1995).
A court’s jurisdiction to enter an order nunc pro tunc “is limited to making
the record reflect what the district court actually intended to do at an earlier date,
1
“Nunc pro tunc signifies now for then, or in other words, a thing is done
now, which shall have the same legal force and effect as if done at [the] time when
it ought to have been done.” United States v. Allen, 153 F.3d 1037, 1044 (9th Cir.
1998) (quoting Black’s Law Dictionary 964 (5th ed. 1979)).
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but which it did not sufficiently express or did not accomplish due to some error or
inadvertence.” Sumner, 226 F.3d at 1010. Appellants asserted in their motion to
correct the Hardwick court’s clerical error that, absent the error, the Nevada City
Rancheria would have been among the parties whose claims were dismissed
without prejudice by the 1983 Stipulation. By granting Appellants’ motion nunc
pro tunc, the district court merely corrected the record to make it “reflect what the
[Hardwick] court actually intended to do at an earlier date, but which it did not
sufficiently . . . accomplish due to some error or inadvertence.” Id. The district
court’s actions here fell well within the authority recognized in Sumner.
We are not persuaded by Appellants’ argument that a court lacks authority to
correct an error nunc pro tunc if the correction would adversely affect a party’s
“substantive” right. Appellants cite no case that has so held. Indeed, in United
States v. Inocencio, 328 F.3d 1207 (9th Cir. 2003), we affirmed a district court’s
authority to correct an earlier failure to revoke a defendant’s naturalization nunc
pro tunc, where such revocation should have (but for a clerical error) followed
automatically from the defendant’s conviction for naturalization fraud. Id. at
1208–11. The later revocation of naturalization clearly affected the defendant’s
substantive rights in Inocencio. Accordingly, we reject Appellants’ argument that
the district court erred because correcting the Hardwick court’s error nunc pro tunc
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restarted the statute of limitations on Appellants’ current claims as of 1983—thus
rendering Appellants’ present action untimely.
In sum, we conclude that the district court neither exceeded its jurisdiction
nor abused its discretion in granting Appellants’ motion to correct a clerical error
nunc pro tunc.
II.
Appellants next argue that the district court erred in permitting the
government to raise the APA’s statute of limitations as an affirmative defense. We
review de novo whether an affirmative defense has been waived, Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001), and again find no
error in the district court’s analysis. The government timely asserted the APA’s
six-year statute of limitations in both its answer to Appellants’ original complaint
and in its answer to Appellants’ first amended complaint. The government
therefore timely raised that defense. See Fed. R. Civ. Proc. 8(c).
No law supports Appellants’ position that waiver of a statute of limitations
defense in an earlier action bars the assertion of that defense in a different action,
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filed nearly forty years later.2 The cases Appellants cite merely hold that “[t]he
filing of a class action tolls the statute of limitations as to all asserted members of
the class,” until, for instance, the class action is dismissed or the class decertified,
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983) (internal quotation
marks omitted), or a plaintiff opts out of the class, see Am. Pipe & Const. Co. v.
Utah, 414 U.S. 538, 550 (1974). Because we reject Appellants’ premise that the
Hardwick action remained pending (and the Nevada City Rancheria remained a
party to that action) until 2014, these cases do not compel a ruling in Appellants’
favor. Here, one of two things occurred: (1) the Nevada City Rancheria claims
were dismissed as of 1983 by the Stipulation, corrected nunc pro tunc, or (2) the
Nevada City Rancheria claims were dismissed in 1992, when the court entered a
“Judgment” closing the Hardwick case and finally disposing of “all” remaining
claims. Either way, the current action, filed in 2010, was time-barred by the
APA’s six-year statute of limitations.
2
Appellants are correct that the government waived any statute of limitations
defenses it may have had in the Hardwick action. The district court found—and
Appellants do not dispute—that Appellants’ claims relating to the Nevada City
Rancheria accrued in 1964 when the notice of termination of the Nevada City
Rancheria was published in the Federal Register. Cf. 28 U.S.C. § 2401(a). Thus,
the APA’s six-year statute of limitations had run before the 1971 Hardwick action
had been filed.
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That the 1983 Stipulation dismissed Appellants’ and similarly situated
Rancherias’ claims without prejudice does not compel a different result. A
dismissal without prejudice does not indefinitely preserve a party’s right to bring a
new action. Nor does the 1983 Stipulation contain any provision that would
preclude the government from raising the statute of limitations as a defense in a
later action.
In sum, there is no basis for finding that the government waived its statute of
limitations defense in the present action. The district court correctly dismissed
Appellants’ suit as time-barred.
III.
We need not reach Appellants’ argument that the government has waived its
laches defense. Regardless whether the government may raise that defense, the
district court’s order must be upheld on statute of limitations grounds.
For the foregoing reasons, we AFFIRM the district court’s order dismissing
Appellants’ action.
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