## United States Court of Appeals for the Federal Circuit

05-1494

RONALD J. WOPSOCK, LUKE J. DUNCAN, and CASSANDRA KOCHAMP, Plaintiffs-Appellants,

v. MILLICENT MAXINE NATCHEES, in her individual capacity and in her official capacity as Chairper son of the Tribal Business Committee of the Ute Indian Tribe of the Uintah and Ouray Indian Reservation, T. SMILEY ARROWCHIS, in hi s individual capacity and in his official capacity as Vice-Chairman of the Tr ibal Business Committee, O. ROLAND MCCOOK, SR., in his individual capacity and in his official capacity as a member of the Tri bal Business Committee, RICHARD JENKS, JR., in his individual capa city and in his o fficial capacity as a member of the Tri bal Business Committee, JOHN P. JURRIS, and SUSAN HAMMER, Defendants-Appellees, and DIRK KEMPTHORNE, Secret ary of the Interior, JAMES CASON, Associate Deputy Secret ary, Department of the Interior, ALLEN ANSPACH, in his official capacit y as Acting Regional Director, Western Regional Office, Bureau of Indian Affairs, CHESTER D. MILLS, in his individual c apacity and in his official capacity as Superintendent, Uintah and Ouray Agency, Bureau of Indian Affairs, and WAYNE NORDWALL, in hi s individual capacity, Defendants-Appellees.

David W. Scofield , Peters Scofield Price, P.C., of Salt Lake City, Utah, argued for plaintiffs-appellants. Charles L. Kaiser , Davis Graham & Stubbs LLP, of Denver, Colorado, argued for defendants-appellees, Millicent Maxine Natchees, et al. With him on the brief was Charles A. Breer.2 John A. Bryson , Attorney, Appellate Section, Environment & Natural Resources Division, United States D epartment of Justice, of Washington, DC, argued for defendants-appellees, Dirk Kempthorne, Secretary of the Interior , et al. With him on the brief were Matthew J. McKeown , Deputy Assistant Attorney General, and William B. Lazarus , Attorney. Appealed from: United States Distr ict Court for the District of Utah Judge Ted Stewart

## United States Court of Appeals for the Federal Circuit

05-1494

RONALD J. WOPSOCK, LUKE J. DUNCAN, and CASSANDRA KOCHAMP, Plaintiffs-Appellants,

v. MILLICENT MAXINE NATCHEES, in her individual capacity and in her official capacity as Chairperson of the Tribal Business Committee of the Ute Indian Tribe of the Uin tah and Ouray Indian Reservation, T. SMILEY ARROWCHIS, in his individual capacity and in his official capacity as Vice-Chairman of the Tribal Business Committee, O. ROLAND MCCOOK, SR., in his individual c apacity and in his official capacity as a member of the Tribal Business Committee, RICHARD JENKS, JR., in his individual c apacity and in his official capacity as a member of the Tribal Business Committee, JOHN P. JURRIS, and SUSAN HAMMER, Defendants-Appellees, and DIRK KEMPTHORNE, Secretary of the Interior, JAMES CASON, Associate Deputy Secret ary, Department of the Interior, ALLEN ANSPACH, in his official capacit y as Acting Regional Director, Western Regional Office, Bureau of Indian Affairs, CHESTER D. MILLS, in his individual capacity and in his official capacity as Superintendent, Uintah and Ouray Agen cy, Bureau of Indian Affairs, and WAYNE NORDWALL, in his individual capacity, Defendants-Appellees.

___________________________ DECIDED: July 11, 2006

___________________________ Before RADER, SCHALL, and BRYSON, Circuit Judges

.05-1494 2 BRYSON, Circuit Judge

. Ronald Wopsock, Luke Duncan, and Cassandr a Kochamp brought this action in the United States District Court for the District of Utah against several officials of the Ute Indian Tribe and others associ ated with them (“the tribal defendants”), and against several federal officials, including the Secret ary of the Interior (“t he federal defendants”). The district court granted the tribal defendants’ motion to dismiss the complaint and the federal defendants’ motion for summary judgment. The plaintiffs appealed to this court. Because we conclude that this court lacks jurisdiction over the plaintiffs’ appeal, we transfer the case to the United States Court of Appeals for the Tenth Circuit.
I This case arises from a dispute wit hin the Ute Indian Tribe concerning membership on the Tribe’s Business Co mmittee (the Tribe’s governing body) and the rules and procedures for election to the Bu siness Committee. Mr. Wopsock and Mr. Duncan are members of the Tribe who previ ously served as elected members of the Business Committee. Ms. Kochamp is a member of the Tribe who in itiated a petition to recall certain members of the Business Committee. While Mr. Wopsock and Mr. Duncan were serving on the Business Committee, the Tribe entered into a financial consul ting agreement with defendant John Jurrius. Concerned about Mr. Jurrius’s subsequent m anagement of the Tribe’s assets, Mr. Wopsock and Mr. Duncan filed an action in t he district court against the Bureau of Indian Affairs (“BIA”) and several BIA offici als, charging them with breach of their05-1494 3 fiduciary obligations to the Tribe. 1 Shortly thereafter, the Business Committee passed two resolutions to expel Mr. Wopsock and Mr. Duncan from the Committee. The Business Committee then enacted Ordinance 03-002, which barred any member who had been expelled from the Business Commi ttee from running as a candidate for election to the Committee for a period of four years. Meanwhile, Mary Carol Jenkins began circulating a petition to recall defendant Millicent Maxine Natchees, the Chairperson of the Business Committee. The Business Committee then enacted Ordinance 03-004, which imposed additional r equirements on recall petitions. Ms. Jenkins’s recall petition was rejected for fa iling to comply with the new requirements. On October 30, 2003, loca l BIA Superintendent Cheste r D. Mills approved Ordinances 03-002 and 03-004. In letters to both Superintendent Mills and BIA Western Division Director Wayne Nordwall, the plaintiffs appealed that approval. Superintendent Mills subsequently vacated his approval, explaining that “my approval of these two ordinances was not r equired by law, and in fact might be seen as an intrusion on the sovereignty of the Tr ibe.” Director Nordwall similarly concluded that “the Superintendent’s approval action was not needed and had no effect on the validity or

1 On September 29, 2004, the district court di smissed that action without prejudice, finding that “[n]one of the laws under which Plaintiffs seek relief provides a private right of action against the Unit ed States, its agencies or officials.” Wopsock v. Nordwall , No. 2:03-CV-826 (D. Utah). The district court also concluded that the plaintiffs’ claims under the Administrati ve Procedure Act (“APA”) were not ripe. Id. In an unpublished decision, the T enth Circuit affirmed. Wopsock v. Nordwall , No. 04-4296 (10th Cir. May 4, 2006).05-1494 4 invalidity of the resolution.” Director Nordwa ll thus dismissed the plaintiffs’ appeals. The plaintiffs appealed those decisions to t he Interior Board of Indian Appeals (“IBIA”). 2 On August 3, 2004, the plaintiffs f iled their first amended complaint, which included a total of eight counts. Count 5, of particular re levance here, alleged that the tribal defendants violated the I ndian Civil Rights Act (“ICRA”) by abridging the plaintiffs’ rights to due process, equal pr otection, and freedom of speech. Count 5 also alleged that the federal defendants had br eached their fiduciary duties by “fail[ing] to decline to recognize” the tribal defendants’ actions, in violation of the Indian Reorganization Act (“IRA”), the ICRA, and the Admi nistrative Procedure Act (“APA ”). Under count 5, the plaintiffs sought declaratory and injuncti ve relief, as well as an award of money damages, pursuant to 28 U.S.C. § 1346(a)(2) (“the Little Tucker Act”), in the amount of $10,000 to each plaintiff. Before the district court, the plaintiffs sought a temporary restraining order or a preliminary injunction that would prevent the tribal defendants from enforcing or recognizing Ordinance 03-002. The plaintiffs expressed their concern that, in the absence of the requested relief, Mr. Wopsock and Mr. Duncan would be precluded from seeking office in the Tribe’s April 2005 electi on. The district co urt denied the request,

2 On January 6, 2006, after the district court had entered judgment in this case, the IBIA dismissed both of the plaint iffs’ appeals for lack of standing. The IBIA explained that “Appellants’ injury appears to have been caused solely by elected officials from Appellants’ own Tribe” and that there is “no basis for Appellants’ contention that the injury they claim to have suffered was caused by the Regional Director, or that by F ederal law he was somehow obliged to address it.” Jenkins v. W. Reg’l Dir. , 42 IBIA 106, 114 (2006). The IBIA furt her concluded that “when the Regional Director dismissed Appellants’ appeal below, in response to a specific request from the Tribe that he do so on the basis of mootness, his dismissal was correct and for that05-1494 5 and the plaintiffs appealed. The Tenth Circuit concluded that it lacked jurisdiction over the plaintiffs’ interlocutory appeal becaus e 28 U.S.C. § 1295 “provides the Federal Circuit with exclusive jurisdiction in appeals from final decisions if the district court’s jurisdiction ‘was based, in whole or in part, on 28 U.S.C. section 1346.’” Wopsock v. Natchees , No. 05-4033 (10th Cir. Mar. 22, 2005) (t ransfer order). The Tenth Circuit therefore transferred the plaintiffs’ interlocutory appeal to this court. On April 7, 2005, this court issued an or der denying the plaintiffs’ motion for an injunction pending appeal. On May 17, 2005, both par ties stipulated to dismissal of the plaintiffs’ appeal of the district court’s or der, explaining that the Tribe’s April 2005 election had occurred and that the plaintiffs’ request for injunctive relief was therefore moot. On May 22, 2005, we granted the jo int motion and dismissed the plaintiffs’ interlocutory appeal. Wopsock v. Natchees , No. 05-1298 (Fed. Cir. May 25, 2005). Thereafter, the district court dismissed all eight counts of the first amended complaint. The district court reasoned that it lacked jurisdiction over counts 1 through 7 because it “cannot reach plaintiffs’ claims without first interpreting tribal law over which it lacks jurisdiction.” Citing Tilton v. Richardson , 6 F.3d 683, 686 (10t h Cir. 1993), and Brown v. Reardon , 770 F.2d 896, 905-06 (10th Cir. 1985), the court also explained that it failed “to find any allegati on that any harm suffered by plaintiffs was motivated by invidious, class-based animus,” as is requi red to maintain a claim under 42 U.S.C. § 1985(3).

reason [the] controversy over the Superin tendent’s purported approv al of Ordinance No. 03-002 remains moot today.” Wopsock v. W. Reg’l Dir. , 42 IBIA 117, 121-22 (2006).05-1494 6 The district court then prov ided additional reasons for dismissing the plaintiffs’ claims. The court concluded that the plaint iffs’ claims were not properly within the scope of the IRA because that stat ute is “not triggered by the me re fact a tribal election is being held or a purported change in the tribal constitution is alleged by individual tribal members.” Rather, the cour t held, the IRA is only triggered “by an appropriate request by a tribe for federal involvement.” T he court further noted that the IRA does not impose upon the federal defendants the affirmative duties asserted by the plaintiffs. The district court observed that the plaintiffs “point to no aspect of tribal or federal law that requires the federal gover nment to act but rather attempt to extend the law to create such duties.” The district court also noted that neither the tri bal defendants nor the federal defendants had waived their sovereign immunity. Furthermore, the court observed that the plaintiffs had failed to exhaust both their f ederal remedies and thei r tribal remedies. The court explained that the plaintiffs’ admin istrative claims were still pending before the IBIA and that the plaintiffs had failed to appeal their challenge against Ordinance 03-002 to the tribal appellate court and had never challenged Ordinance 03-004 in any tribal court. In those circumstances, the c ourt ruled, dismissal was appropriate. Finally, the district court addressed the plaintiffs’ motion for leave to amend. The court explained that “[v]ir tually contemporaneously with this Court’s hearing on the motions to dismiss and for summary judgment, plaintiffs moved . . . to file a second amended complaint.” The court found that the “facts and claims sought to be asserted . . . were known to plaintiffs when they filed their earlier co mplaints” and that “[p]laintiffs’ amendments appear to be an attempt to avoid both this Court’s prior rulings and05-1494 7 arguments raised by defendants.” The cour t therefore denied leave to amend the complaint. II This court has “exclusive jurisdiction . . . of an appeal from a final decision of a district court of the United Stat es . . . if the jurisdiction of that court was based, in whole or in part, on [28 U.S.C.] sect ion 1346.” 28 U.S.C. § 1295(a). As a result, “the question whether we have jurisdiction in this case . . . depends on whether t he jurisdiction of the district court in this case was based, at least in part, on the Little Tucker Act.” Doe v. United States , 372 F.3d 1308, 1311-12 (Fed. Cir. 2004) (citing United States v. Hohri , 482 U.S. 64, 72 (1987)). In the Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), Congress waived sovereign imm unity for certain actions for monetary relief against the United States. Doe , 372 F.3d at 1312. Yet, as the Supreme Court has noted, the Tucker Act “does not create any substantive right enforceable against the United States for money damages.’” United States v. Mitchell , 445 U.S. 535, 538 (1980) (“ Mitchell I ”). Consequently, a court must c onsider “whether the source of substantive law can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” United States v. Mitchell , 463 U.S. 206, 216 (1983) (“ Mitchell II ”); see also United States v. Whit e Mountain Apache Tribe , 537 U.S. 465, 472 (2003) (discussing Mitchell II ’s “fair interpretation rule” and stating that “[i]t is enough . . . that a statute cr eating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages” and that “a fair inference will do”); Samish Indian Nation v. United States , 419 F.3d 1355, 1364 (Fed. Cir. 2005).05-1494 8 Moreover, the question whether a statute can fairly be interpreted as moneymandating is one that directly bears on the issue of jurisdiction. In Fisher v. United States , 402 F.3d 1167, 1171-72 (Fed. Cir. 2005) (en banc), we held that a court “should entertain and decide the jurisdictional and merits te st in . . . [a] single step . . . in which the trial court determines both the question of whether the stat ute provides the predicate for its jurisdiction, and lays to rest . . . t he question of whether the statute on its merits provides a money-mandating remedy.” 3 In other words, because a court is always responsible for its own jurisdiction, a court that entertains a complaint alleging a Tucker Act claim must determine at the outset whet her the statute reli ed upon is one that is money-mandating. Id. at 1173. In the event that the court concludes that the source of substantive law does not meet the “money-mandating test,” t he court must dismiss the claim for lack of jurisdiction because “the absence of a money-mandating source [is] fatal to the court’s jurisdiction under the Tucker Act.” Id. In United States v. Navajo Nation , 537 U.S. 488, 503 (2003), the Supreme Court addressed the “money-mandati ng test” by comparing Mitchell I , in which the Court concluded that the statute at issue (the Indian General A llotment Act) was not moneymandating, to Mitchell II , in which the Court found that the relevant timber management statutes could be interpreted as money-mandat ing. In doing so, the Court focused on the degree to which the statut es in each case created a trust relationship between the

3 In Fisher , we overruled Gollehon Farming v. United States , 207 F.3d 1373 (Fed. Cir. 2000), which had prescribed a two-step approach to the money-mandating issue: (1) the plaintiff need onl y make a non-frivolous allegat ion that the statute may be interpreted as money-mandating to satisfy juri sdiction and (2) if it was subsequently decided that the statut e was not money-mandating, the court would dismiss for failure to state a claim upon which relief could be granted. See Fisher , 402 F.3d at 1172-73.05-1494 9 United States and the respondents. The Court observed that the statute in Mitchell I “created only a limited trust relationship . . . that does not im pose any duty upon the Government to manage timber res ources,” while the statute in Mitchell II , “clearly give[s] the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians.” Navajo Nation , 537 U.S. at 504-05. The Court thus explained that, for purposes of determining whether a particular claim falls within the Tucker Act,

“ Mitchell I and Mitchell II . . . instruct [that] a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id. at 506. The Court then addressed the statute at issue in Navajo Nation (the Indian Mineral Leasing Act (“IMLA”)) and found that the IMLA “simply require s Secretarial approval” and that “[u]nlike the ‘elaborate’ provisions before the Court in Mitchell II ,” the “Secretary is neither assigned a comprehensive managerial role nor . . . expre ssly invested with responsibility to secure the needs and best interests of t he Indian owner and his heirs.” Id. at 507-08 (internal quotation marks omitted). The Court therefore concluded that “no provision of the IMLA or its regulations contains any trust language with respect to coal leasing” and rejected the respondent’s claim for compensation. Id. at 508. Compare Navajo Nation , 537 U.S. at 508, with White Mountain Apache Tribe , 537 U.S. at 475 (finding the statute in question to be money-mandating becaus e it provides that “Fort Apache [is] ‘held by the United States in trust for the White Mountain Apache Tr ibe’” and because “elementary trust law . . . confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch”).05-1494 10 The plaintiffs in this case seek money damages pursuant to the Little Tucker Act as compensation for the feder al defendants’ alleged breach of the fiduciary duties created by the IRA, the I CRA and the APA. The IRA, however, cannot fairly be interpreted as mandating compensation by the federal government for the injury claimed by the plaintiffs. Like the statute at issue in Navajo Nation , the IRA does not grant the Secretary a “comprehensive managerial role”; rat her, it simply requires the Secretary to “call and hold an election . . . after t he receipt of a tribal request.” See 25 U.S.C. § 476(c). In this manner, the IRA invests pr imary responsibility with the Tribe, not the Secretary. In fact, the Supreme Court has stated that “[t]he overriding purpose of [the IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, bot h politically and economically.” Morton v. Mancari , 417 U.S. 535, 542 (1974). Moreover, as the Tenth Circuit has explained in distinguishing Mitchell II : “Indian tribes have a right to self-government . . . [and] . . . while the Department may be requi red by statute or tribal law to act in intratribal matters, it should act so as to avoid any unnec essary interference with a tribe’s right to self-government.” Wheeler v. U. S. Dep’t of the In terior, Bureau of Indian Affairs , 811 F.2d 549, 553 (10th Cir. 1987); see also Nero v. Cherokee Nation of Okla. , 892 F.2d 1457, 1465 (1989) (distinguishing Mitchell II by finding that “no statute or regulation requires Department involvement in Cherokee el ection disputes; rather, . . . federal law precludes Department action”). Consequently, the IRA does not serv e as the requisite money-mandating statute needed to establish jurisdiction under the Little Tucker Act. The ICRA and the APA do not fulfill that role either. The ICRA is directed not at the federal government, but ra ther at Indian tribes. See 25 U.S.C. § 1302 (“No Indian05-1494 11 tribe in exercising powers of se lf-government shall . . . .”). Thus it does not impose duties upon the federal government or its officials. Fina lly, the APA does not authorize an award of money damages at all; to the contrary, secti on 10(a) of the APA, 5 U.S.C. § 702, specifically limits the Act to actions “seeking relief other than money damages.” Under Fisher , without a source of subs tantive law that can fairly be interpreted as mandating compensation, the Little Tucker Act did not give the district court jurisdiction to consider the plaintiffs’ claim for m oney damages. Because the district court’s jurisdiction over this case was not bas ed in part on the Little Tucker Act, we lack jurisdiction over this appeal. See Doe , 372 F.3d at 1317 (finding that the Federal Circuit lacked appellate jurisdiction because the “case was not one that was based on the Little Tucker Act at the outset, and it never becam e one through the passage of time or the unfolding of events”); see also 28 U.S.C. § 1295(a)(2). When we lack jurisdiction, we are “authoriz ed by statute to transfer the case to ‘any other court in which t he action or appeal could have been brought at the time it was filed or noticed.’” Doe , 372 F.3d at 1317 (quoti ng 28 U.S.C. § 1631). To be sure, in a previous appeal, the Tenth Circuit transferred this case to us. In such situations, the Supreme Court has advised us that law-of-the-case principl es should be applied so as to avoid “a perpetual game of jurisdictional ping-pong.” Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 818 (1988). It is well established, however, that law-ofthe-case principles do not bar a court from departing from earlier ru lings when there is “an intervening change of controlling legal authority, or [a showing that] the prior decision is clearly incorrect and its preserva tion would work a manifest injustice.” Toro Co. v. White Consol. Indus. , 383 F.3d 1326, 1336 (Fed. Cir. 2004); see also 18B05-1494 12 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (2d ed. 2002). In this case, the Tenth Circuit’s earlie r transfer of the plaintiffs’ interlocutory appeal occurred almo st simultaneously with our en banc decision in Fisher , in which we overruled prior precedent under which the Tenth Circuit’s transfer decision would have been correct. Thus, this is a case in which there has been a change in the law and in which it is now quite clear that we lack jurisdiction over this appeal. We therefore consider it to be in the interest of justice to transfer the present appeal to the appropriate appellate tribunal for further proceedings. Because this case was appealed from a final judgment of the United States Distric t Court for the District of Utah, we direct that the appeal be transferred to the Un ited States Court of Appeals for the Tenth Circuit. Each party shall bear its own costs for this appeal. TRANSFERRED

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