UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE CHEROKEE NATION,

Plaintiff,

v. 

DEPARTMENT OF THE INTERIOR, et 

al.,

Defendants.

Case No. 1:19-cv-02154 (TNM)

MEMORANDUM OPINION AND ORDER

The United States Government has long held in trust significant assets belonging to the 

Cherokee Nation (the “Nation”). The Nation sued the Department of Interior and the other 

federal Defendants (collectively, the “Government”) for an accounting of those trust funds. The 

Court denied the Government’s motion to dismiss and referred the case to Magistrate Judge 

Faruqui for discovery. After producing some documents, the Government moved for a 

protective order to limit further discovery. See ECF No. 55. Magistrate Judge Faruqui denied 

that motion. See ECF No. 72. The Government objected to Magistrate Judge Faruqui’s 

Memorandum Opinion (“Opinion”). Upon consideration of the Opinion, the Government’s 

objections and the Nation’s response, the briefing before the Magistrate Judge, and the entire 

record, the Court will largely adopt the Opinion’s findings and conclusions. The Court grants

the Nation discovery on its claims that do not arise under the Administrative Procedure Act 

(APA).

The Government objects to the Magistrate Judge’s ruling (1) that discovery on the 

Nation’s APA claim (Count III) is not limited to the administrative record; (2) that discovery for 

the Nation’s non-APA claims (Counts I and II) is not limited to the administrative record; and (3) 
2

that the American Indian Trust Fund Management Reform Act of 1994 (“1994 Act”)—under 

which the Nation brings Count II of its Complaint—creates a cause of action to seek an 

accounting. See Defs’ Objs. to Order (“Defs’ Objs.”), ECF No. 76.1

Generally, a party in a civil case may seek discovery on any evidence that is “relevant” to 

that party’s “claim or defense,” even when the Government is a party to the suit. Fed. R. Civ. P. 

26(b)(1). But discovery rarely occurs for claims brought under the APA. For those claims, 

review is limited to the administrative record, not a record developed through the usual processes 

of civil discovery. See Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial 

review should be the administrative record already in existence, not some new record made 

initially in the reviewing court.”). The party who seeks to limit discovery by a protective order 

must show “good cause” for that order. Fed. R. Civ. P. 26(c); see Greene v. Shegan, 917 F. 

Supp. 2d 146, 150 (D.D.C. 2013).

The Opinion correctly characterized Count III as a failure-to-act claim under § 706(1) of 

the APA, but the Court disagrees that discovery for that claim outside the administrative record

is appropriate. The Government argues that the Nation’s APA claim challenges the legal 

sufficiency of actions the Government took in the mid-1990s to provide an accounting. The 

Government says that “[w]hen an agency has acted, Section 706(1) and its failure-to-act case law 

do not apply.” Defs’ Objs. at 15. But the Court has already decided this question. As the Court 

said when it denied the Government’s Motion to Dismiss, the Nation’s Complaint alleges that 

the Government has a statutory obligation to act and has “fail[ed] to so act.” 2020 WL 224486

at *3 (D.D.C. Jan. 15, 2020) (quoting Cobell v. Salazar, 240 F.3d 1081, 1095 (D.C. Cir. 2001)

(emphasis added)). The Nation thus asks the Court to “compel” an action that the agency has 

 1 All page citations refer to the pagination generated by the Court’s CM/ECF system.
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withheld (i.e., not taken), a claim that falls under the plain language of § 706(1) of the APA. See 

5 U.S.C. § 706(1). 

Because Count III is an APA claim, discovery on that count would normally be limited to 

the administrative record. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019). The 

Opinion, however, determined that failure-to-act claims like the one brought by the Nation are 

excluded from that usual rule. See Opinion at 10. The language of the APA undermines this 

conclusion. Section 706 lists § 706(1) as one of several “foregoing determinations” for which a 

court “shall review the whole record.” 5 U.S.C. § 706. And “[n]othing in the statutory text 

distinguishes the scope of record review based on whether the claim is directed at agency action 

or inaction.” Dallas Safari Club v. Bernhardt, — F. Supp. 3d —, 2021 WL 495078 at *3 

(D.D.C. Feb. 9, 2021). Nor does the text “even hint” that review outside the administrative 

record should occur “as a matter of course” when a plaintiff challenges agency inaction. Id. 

More, the D.C. Circuit has steadily limited the “unusual circumstances” in which APA 

claims merit discovery beyond the administrative record. Dist. Hosp. Partners v. Burwell, 786 

F.3d 46, 55 (D.C. Cir. 2015). True, a claim for failure to act was once an exception to the usual 

APA discovery rule. See Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). But that 

exception has disappeared from the Circuit’s most recent opinions on the subject. See United 

Student Aid Funds v. Devos, 237 F. Supp. 3d 1, 4 (D.D.C. 2017) (analyzing cases). Current case 

law permits extra-record evidence only in APA cases in which “the procedural validity of the 

agency’s action remains in serious question or the agency affirmatively excluded relevant 

evidence.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014). The Nation makes no such
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allegations in Count III.2 So discovery for Count III is limited to the administrative record that 

the Government has already produced.

This limitation for Count III does not apply to the non-APA claims brought in Counts I 

and II. First, the Government argues that 25 U.S.C. § 4011—the statute relied upon in Count 

II—does not create a private right of action separate from the APA. See Defs’ Objs. at 14–15. 

But the D.C. Circuit has already held that the trust beneficiaries, including tribes, “are entitled to 

an accounting under [§ 4011].” Cobell v. Salazar, 573 F.3d 808, 813 (D.C. Cir. 2009). The 

Court also finds persuasive the Tenth Circuit’s analysis in Fletcher v. United States, 730 F.3d 

1206, 1209–11 (10th Cir. 2013) (Gorsuch, J.), which held that a tribe has a private right of action 

under 25 U.S.C. § 4011. Based on these authorities, Count II does not present an APA claim.

Next, the Government argues that, even if Count II presents a non-APA claim, it 

“requires evaluating the substance of an agency’s decision on an administrative record” and 

therefore discovery should be limited to that record. Bellion Spirits, LLC v. United States, 335 F. 

Supp. 3d 32, 43 (D.D.C. 2018). (The Nation, for its part, does not dispute that the standard from 

Bellion Spirits governs the scope of discovery for a non-APA claim against an agency. See 

Opposition to Defs’ Objs. at 9, ECF No. 82.) The Government’s contention fails, however, for 

the same reasons as its prior argument about which claim the Nation presents. As described 

above, the Nation alleges that the Government has failed to act—and therefore made no 

“decision”—according to its statutory obligation. The Nation is master of its Complaint, and its

assertion has survived Rule 12(b). In short, no “decision” provides any “substance” for the 

 2

 Nor is this a case in which the record is “so bare as to frustrate judicial review” so that extrarecord discovery is needed. Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 998 (D.C. 

Cir. 1990). The administrative record is already a “stunning 113,655 pages.” Opinion at 3.
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Court to review on the Nation’s non-APA claims.

3

 Traditional civil discovery outside the record 

may therefore proceed for Counts I and II.

That the Court allows some discovery, however, does not imply endless discovery. Like 

any other matter of procedure, discovery “has ultimate and necessary boundaries.” Oppenheimer 

Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The Nation’s claims for an accounting are

serious, but the Nation also may not achieve through discovery what it seeks on the merits. For 

instance, the Nation can likely pursue its claim for an accounting without every relevant 

document dating to the Constitution (or earlier). And the Government should not be forced to 

comb the bowels of the National Archives for any document that might theoretically be relevant 

to the Nation’s claims. Further discovery instead must be more targeted, both in scope and in 

focus, to center on testing the parties’ assertions regarding the sufficiency of the Arthur 

Andersen Report. 

The Nation’s proposals to “share the burden of reviewing and producing” documents

would be one step to achieve that kind of discovery. Pl’s Opp. to Motion for Prot. Order at 10, 

ECF No. 57; see also Fed. R. Civ. P. 37(a)(5)(C) (“[T]he court may issue any protective order 

authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the 

reasonable expenses for the motion.”). Boundless discovery will only delay the Court’s 

adjudication of this case’s merits, not help it. See, e.g., Food Lion Inc. v. United Food and Com. 

Workers Int’l Union, AFL-CIO-CIC, 103 F.3d 1007, 1014 (D.C. Cir. 1997) (describing the 

“problems of boundless discovery without a meaningful standard of relevance”).

 3 The Opinion characterized the Arthur Andersen Report and explained why that Report could 

not meet the Government’s statutory obligation. See Opinion at 11–12. The Court understands

that language to be dicta and takes no position on it now. The Government may still argue, once 

this case reaches the merits stage, that the Report was sufficient under § 4011.
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The Opinion thus properly reserved judgment on the temporal scope of the Nation’s 

discovery requests and appropriately ordered the parties to seek an agreement on that issue. The 

Magistrate Judge has since adopted a proposed discovery schedule that accounts for documents 

with “limited temporal scopes,” ECF No. 78. The parties appear to be working together under

that schedule. See Joint Status Report, ECF No. 84. They should continue to do so and should 

also discuss how to share the burdens of future discovery. Any disputes shall be submitted to the 

Magistrate Judge, and the parties shall abide by the Magistrate Judge’s scheduling orders. The 

Court expects that discovery will proceed expeditiously and that the Nation will limit itself to 

targeted discovery efforts going forward.

* * *

For these reasons, the Magistrate Judge’s Opinion will be largely adopted. It is hereby 

ORDERED that the Government’s Motion for a Protective Order is DENIED as to 

Count I and II but is GRANTED as to Count III.

SO ORDERED.

Dated: September 2, 2021 TREVOR N. McFADDEN

United States District Judge