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ELIZABETH A. STRANGE 

First Assistant United States Attorney 

District of Arizona 

ANNE E. NELSON 

Arizona State Bar No. 028069 

Assistant U.S. Attorney 

Two Renaissance Square 

40 North Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone: (602) 514-7500 

Facsimile: (602) 514-7693 

E-Mail: Anne.Nelson@usdoj.gov 

Attorney for United States of America 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Navajo Nation, as a representative of 

Tiffany Robbins, and en parens patriae on 

behalf of all members of the Navajo 

Nation who reside in or visit the City of 

Winslow. 

 Plaintiff, 

v. 

Jefferson Sessions, Attorney General of 

the United States, James F. Felte, Jr., 

Acting Chief of the U.S. Department of 

Justice Civil Rights Division, City of 

Winslow, an Arizona municipality, Former 

Winslow Police Officer Austin Shipley, 

Winslow Police Officer Ernesto Cano, 

Former Winslow Police Chief Stephen 

Garnett, in their individual and official 

capacities. 

 Defendants. 

Case No.: 18-cv-08072-GMS 

FEDERAL DEFENDANTS’ 

MOTION TO DISMISS 

Defendants Jefferson Sessions and James F. Felte, Jr., (hereinafter “Federal 

Defendants”), by and through undersigned counsel, pursuant to Rule 12(b)(1) of the Federal 

Rules of Civil Procedure, submit this Motion to Dismiss Plaintiff’s Complaint. 

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Plaintiff, Navajo Nation, filed this action as the alleged representative of Tiffany 

Robbins and en parens patria on behalf of its members that live in or travel to the City of 

Winslow alleging, among other things, that the Federal Defendants violated the fifth 

amendment equal protection rights of its members when they refused to bring an action against 

Winslow Police Officers Shipley and Cano. (Dkt. 1, p. 14). This Court lacks subject matter 

jurisdiction over Plaintiff’s Bivens claims alleged against the Federal Defendants acting in 

their official capacities. Moreover, even if Plaintiff’s Bivens claims could be construed to be 

alleged against the Federal Defendants in their individual capacities, those claims are subject 

to dismissal pursuant Fed. R. Civ. P. 12(b)(1) for lack of standing. This Motion is supported 

by the following Memorandum of Points and Authorities and all matters of record. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. FACTUAL BACKGROUND 

Plaintiff, Navajo Nation, is a sovereign Indian Nation, with lands located in Arizona. 

(Dkt. 1, ¶ 3). Plaintiff alleges that one of its members, Loreal Tsingine, was shot and killed 

by City of Winslow Police Officer Shipley after being suspected of shoplifting at a Circle K 

store. (See Dkt 1, p. 6-9). The Complaint alleges that this incident was the subject of an 

investigation by both the Arizona Department of Public Safety and the Maricopa County 

Attorney’s Office. (Id. at p. 9-10). The Maricopa County Attorney’s Office concluded that 

criminal prosecution of Officer Shipley was not warranted. (Id. p. 10). The Navajo Nation’s 

President, Russell Begaye, subsequently requested that former United States Attorney General 

Loretta Lynch conduct a separate investigation into the shooting. (Id. at ¶ 78.). The Complaint 

alleges that in October 2017, the U.S. Department of Justice issued a letter stating that it had 

concluded its investigation and that there was insufficient evidence to bring further action 

against Officer Shipley. (Id. at ¶¶ 81-83). 

The Navajo Nation alleges that at the time of her death Loreal Tsingine had one minor 

daughter, Tiffany Robbins, whose father is Moe Robbins. (Dkt. 1, pp 87-88). Plaintiff does 

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not allege whether Ms. Tsingine was married to Mr. Robbins at the time of her death, nor does 

Plaintiff allege whether Mr. Robbins has been appointed as personal representative for Ms. 

Tsingine’s estate. (Id.). Plaintiff alleges that on March 27, 2018, Mr. Robbins “assigned his 

claim on behalf of his and Loreal Tsingine’s daughter, Tiffany Robbins, to the Navajo Nation.” 

(Dkt. 1, pp 89). 

II. LEGAL STANDARD 

A. Fed. R. Civ. P. 12(b)(1). 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to 

dismiss a complaint for lack of subject matter jurisdiction. When subject matter jurisdiction 

is challenged in a motion to dismiss, the plaintiff has the burden of proving jurisdiction. 

Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008) 

(citing Tosco Corp. v. Comtys. for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001)). 

“In considering the jurisdiction questions, it should be remembered that ‘it is a fundamental 

principle that federal courts are courts of limited jurisdiction.’” Stock West, Inc. v. 

Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (quoting 

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). A party may make a 

jurisdictional attack that is either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 

1035, 1039 (9th Cir. 2004). A facial attack occurs when the movant “asserts that the 

allegations contained in a complaint are insufficient on their face to invoke federal 

jurisdiction.” Id. In resolving a facial attack, the court must accept the allegations of the 

complaint as true. Mason v. Arizona, 260 F. Supp. 2d 807, 815 (D. Ariz. 2003). 

III. ARGUMENT 

A. Plaintiff’s official capacity Bivens claims must be dismissed for lack of 

jurisdiction. 

The Navajo Nation brings Bivens claims against the Federal Defendants alleging that 

they violated its equal protection rights under the Fifth Amendment by not bringing some type 

of prosecution in response to Ms. Tsingine’s death. (Dkt. 1, ¶¶ 84-86, 105-107). The 

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Complaint contains no specific allegations against the Federal Defendants in their personal 

capacities, but rather expressly alleges claims against the Federal Defendants in their official 

capacities. (See id.; see also Claim for Relief at p. 14 seeking injunctive relief directing 

Sessions and Felte to take appropriate action against Shipley and Cano). 

It is well settled that that “a Bivens action can be maintained against a defendant in 

his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. 

Winston, 837 F.2d 348, 355 (9th Cir. 1987); accord Gilbert v. DaGrossa, 756 F.2d 1455, 1458 

(9th Cir. 1985). “A Bivens suit against a defendant in his or her official capacity would merely 

be another way of pleading an action against the United States, which would be barred by the 

doctrine of sovereign immunity.” Consejo de Desarrollo Economico de Mexicali, A.C., v. 

United States, 482 F.3d 1157, 1173 (9th Cir. 2007); see also Nurse v. United States, 226 F.3d 

996, 1004 (9th Cir. 2000). 

The Bivens claims asserted against the Federal Defendants in their official capacities 

are properly considered claims against the United States. See Dugan v. Rank, 372 U.S. 609, 

615 (1963) (“The general rule is that a suit is against the sovereign if ‘the judgment sought 

would expend itself on the public treasury or domain, or interfere with the public 

administration,’ or if the effect of the judgment would be ‘to restrain the Government from 

acting, or to compel it to act.”). This is particularly apparent in the Complaint’s demand for 

injunctive relief to compel the Federal Defendants to institute some form of action against the 

Winslow Police Officers. See Dkt. # 1, p. 14. The United States has not waived its sovereign 

immunity for claims alleging constitutional violations. See 28 U.S.C. § 2679(b)(2)(A); see 

also Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991) (court lacks subject matter

jurisdiction to hear constitutional tort claims against the United States because it has not 

waived sovereign immunity for such claims). Thus, the Court lacks jurisdiction over 

Plaintiff’s Bivens claims against the Federal Defendants and dismissal is warranted. 

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B. Plaintiff lacks standing to bring its Bivens claims. 

Article III of the Constitution limits the jurisdiction of federal courts to cases or 

controversies. U.S. CONST. art. III, § 2, cl. 1. “The requisite elements of Article III standing 

are well established: [a] plaintiff must allege personal injury fairly traceable to the defendant's 

allegedly unlawful conduct and likely to be redressed by the requested relief.” Hein v. 

Freedom from Religion Found., Inc., 551 U.S. 587, (2007) (internal quotation and citation 

omitted). The injury plaintiffs allege must be “an invasion of a legally protected interest which 

is (a) concrete and particularized, and (b) ‘actual or imminent, not ‘conjectural’ or 

‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). 

Moreover, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be 

‘redressed by a favorable decision.’” Id, at 561. At the pleading stage, the plaintiff “has the 

burden of alleging specific facts sufficient to satisfy” each element of standing. Schmier v. 

U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821-823 (9th Cir. 2002). 

Plaintiff lacks Article III standing to sue the Federal Defendants because it does not, 

and cannot, allege that it suffered any legally cognizable injury that was caused by the Federal 

Defendants or that is redressable by the Court. It is has long been settled that “in American 

jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution 

or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); accord 

Sargeant v. Dixon, 130 F.3d 1067, 1069-1070 (D.C. Cir. 1997) (finding that Plaintiff has no 

legally cognizable interest in a prosecution and in seeing that laws are enforced); In re 

Kaminski, 960 F.2d 1062, 1064-65 (D.C. Cir. 1992). The Supreme Court in Linda R.S. v. 

Richard D., further recognized that “[t]he Court’s prior decisions consistently hold that a 

citizen lacks standing to contest the policies of the prosecuting authority when he himself is 

neither prosecuted nor threatened with prosecution.” 410 U.S. at 619 (citations omitted). The 

Court’s rulings are grounded in separation-of-powers principles that underlie the standing 

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requirement, which “serves to prevent the judicial process from being used to usurp the powers 

of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). 

It is “well settled that the question of whether and when prosecution is to be instituted 

is within the discretion of the Attorney General. Mandamus will not lie to control the exercise 

of this discretion.” Powell v. Katzenbach, 359 F.2d 234 (D.C. Cir. 1965); see also New York

v. Muka, 440 F.Supp. 33, 36 (N.D.N.Y. 1977) (holding that the Department of Justice 

“possesses an absolute and unreviewable discretion as to what crimes to prosecute.”); Milliken

v. Stone, 7 F.2d 397, 399 (S.D.N.Y. 1925) (finding “the federal courts are without power to 

compel the prosecuting officers to enforce the penal laws, whatever the grounds of their failure 

may be. The remedy for inactivity of this kind is with the executive and ultimately with the 

people.”). Indeed, the Ninth Circuit has indicated, 

Federal Courts exercise the judicial power of the United States pursuant to Article 

III of the Constitution and specific statutory grants of power. While district courts 

have certain responsibilities in connection with selecting, instructing, and 

supervising grand juries, Fed. R. Crim. P. 6, the investigation of crime is primarily 

an executive function. Nowhere in the Constitution or in the federal statutes has 

the judicial branch been given power to monitor executive investigations before a 

case or controversy arises. Without an indictment or other charge bringing a 

defendant before the court, or in the absence of a pending grand jury investigation, 

a district court has no general supervisory jurisdiction over the course of 

executive investigations. 

Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978) (emphasis added). 

The Attorney General must exercise the discretion conferred upon him by law. 

Weisberg v. U.S. Department of Justice, 489 F.2d 1195, 1201 (D.C. Cir. 1973) (affirming 

dismissal of action seeking release of FBI records following President Kennedy's 

assassination). “He must evaluate the evidence necessary to an informed judgment. He must 

decide whether to prosecute or not. He must decide whom to prosecute. He must decide when 

to prosecute.” Id. “Functions in this area belong to the Executive under the Constitution, 

Article II, Sections 1 and 3, . . .” Id., see also Pugach v. Klein, 193 F.Supp. 630, 634-35 

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(S.D.N.Y. 1961), Moses v. Kennedy, 219 F.Supp. 762, 765 (D.C.D.C. 1963), aff'd sub nom., 

Moses v. Katzenbach, 342 F.2d 931 (D.C. Cir. 1965) (per curiam). As the D.C. Circuit held 

in Katzenbach, “an investigation as to the adequacy or the execution of [federal] laws is not a 

matter within the jurisdiction of the judicial branch of this Government.” Id. 

Accordingly, district courts do not have the authority to interfere with the decisionmaking process of the executive branch regarding whether and when it decides to conduct a 

criminal, administrative, or regulatory investigation. Quite simply, the decision regarding 

whether or not to investigate and/or prosecute is left to the discretion of the Department of 

Justice, not the Courts. 

Here, Plaintiff cannot show that the Court has the authority to compel the Federal 

Defendants to bring a prosecution against the Winslow Police Officers. Further, Plaintiff does 

not allege that they were threatened nor that it could have been threatened with prosecution. 

Thus, Plaintiff’s Complaint lacks a cognizable legal interest and legal relief, and the court 

should dismiss the action against the Federal Defendants.1 See also, Sargeant, 130 F.3d at 

1069; In re Kaminski, 960 F.2d at 1064; Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir.1990). 

/// 

/// 

 

1

There are also substantial questions as to whether the alleged assignment of Ms. Tsingine’s 

Bivens claim to the Plaintiff is valid under Arizona law sufficient to provide standing, see 

e.g., Webb v. Gittlen, 217 Ariz. 363, 365-366 (2008) (recognizing that Arizona law prohibits 

the assignment of personal injury claims); Lingel v. Olben, 198 Ariz. 249, 254 (App. 2000)(holding that Arizona law prohibits assignment of wrongful death actions); and whether the Plaintiff has established parens patriae standing to bring a Bivens claim. See, 

e.g., Navajo Nation v. Superior Court of State of Wash. For Yakima Cnty., 47 F. Supp. 2d 1233, 1240 (E.D. Wash. 1999) aff’d 331 F.3d 1041 (9th Cir. 2003) (“The governmental entity must raise claims on behalf of all its members, not just a select few.”). The Federal Defendants reserve the right to raise these additional arguments in the event this Motion to 

Dismiss is denied. United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997) (finding that standing is not subject to waiver as it is a jurisdictional issue that “can be raised at any time, including by the court sua sponte”). 

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III. Conclusion

Dismissal of the Federal Defendants for lack of subject matter jurisdiction is 

necessary because the Federal Defendants are immune from official capacity Bivens claims, 

and because Plaintiff’s lack Article III standing to bring their alleged Bivens claims against the 

Federal Defendants in either their official or individual capacities. For these and the reasons 

set forth above, the Federal Defendants request the court enter an order dismissing the claims 

against them. The Federal Defendants request such further relief as the Court deems just and 

proper. 

 Respectfully submitted this this 10th day of September, 2018. 

 

ELIZABETH A. STRANGE 

First Assistant United States Attorney 

District of Arizona 

/s Anne E. Nelson 

ANNE E. NELSON 

Assistant U.S. Attorney 

Attorneys for Defendant 

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CERTIFICATE OF SERVICE 

 I hereby certify that on September 10, 2018, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the following CM/ECF registrants: 

Katherine Belzowski 

Navajo Nation Department of Justice 

P.O. Box 2010 

Window Rock, Arizona 86515 

kbelzowski@nndoj.org 

Paul Gattone 

Law Office of Paul Gattone 

301 S. Convent 

Tucson, Arizona 85701 

pgattone@aol.com 

Attorneys for Plaintiff 

/s Anne E. Nelson 

ANNE E. NELSON 

Assistant U.S. Attorney 

Attorneys for Defendant 

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