                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


    JULIA CAVAZOS, et al.,
               Plaintiffs
          v.                                          Civil Action No. 18-891 (CKK)
    RYAN ZINKE, et al.,
               Defendants


                               MEMORANDUM OPINION
                                  (January 7, 2019)

         Plaintiffs allege that they are Native Americans who have been illegally stripped

of their tribal membership by their Tribe, the Saginaw Chippewa Indian Tribe of

Michigan, in violation of the Judgment Funds Act (“JFA”). Compl., ECF No. 1, ¶¶ 1-3.

Plaintiffs petitioned Defendants to enforce the JFA and to reestablish their tribal

membership. Id. at ¶ 6. After Defendants failed to adequately respond, Plaintiffs brought

this action to compel Defendants to respond to Plaintiffs’ petition and to enforce the

requirements of the JFA. Defendants have moved for dismissal of Plaintiffs’ Complaint,

arguing that Plaintiffs failed to exhaust their administrative remedies.

         Upon consideration of the pleadings,1 the relevant legal authorities, and the record

as a whole, the Court GRANTS Defendants’ motion. The Court concludes that Plaintiffs’


1
 The Court’s consideration has focused on the following documents:
   • Defs.’ Mot. to Dismiss Compl., ECF No. 10 (“Defs.’ Mot.”);
   • Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss, ECF No. 12 (“Pls.’ Opp’n”);
   • Defs.’ Reply in Support of Mot. to Dismiss, ECF No. 13 (“Defs.’ Reply”).
The Court also considered the Notice of Supplemental Authority submitted by Plaintiffs.
See ECF No. 14. In an exercise of its discretion, the Court finds that holding oral
argument in this action would not be of assistance in rendering a decision. See LCvR
                                             1
Complaint fails to state a claim because, absent the completion of the administrative

appeal process, Defendants’ inaction does not constitute a final agency action subject to

judicial review under the Administrative Procedures Act (“APA”). 5 U.S.C. § 704

(requiring “final agency action” prior to judicial review).

                                    I. BACKGROUND

        For the purposes of the motion before the Court, the Court accepts as true the

well-pleaded allegations in Plaintiffs’ Complaint. The Court does “not accept as true,

however, the [P]laintiffs[’] legal conclusions or inferences that are unsupported by the

facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.

Cir. 2014).

        Plaintiffs allege that they were unlawfully disenrolled from membership in the

Saginaw Chippewa Indian Tribe of Michigan (“the Tribe”) in violation of the JFA.

Compl., ECF No. 1, ¶ 60. The JFA was passed by Congress in 1986. Id. at ¶ 39. As is

relevant here, the Act required the Tribe to eliminate reservation residency requirements

for membership and to open enrollment for an eighteen-month period to allow a certain

segment of Native Americans to become official members of the Tribe. Id. at ¶ 40.

Plaintiffs are among those who properly applied for, and received membership in, the

Tribe during the JFA’s open enrollment period. Id. at ¶ 47. But, beginning in 2011 and

culminating in 2015, Plaintiffs contend that the Tribe’s leadership initiated a series of

proceedings disenrolling those individuals whose tribal membership had been mandated

by the JFA. Id. at ¶ 58.



7(f).
                                              2
        Under the JFA, the Secretary of the Interior is tasked with enforcing the

requirements of the JFA when tribal leadership fails to perform in accordance with the

Act. Id. at ¶ 71 (citing Pub. L. No. 99-346, 100 Stat 674 § 5(b)(2) (1986)). In 2015,

Plaintiffs allege that their counsel contacted Bureau of Indian Affairs (“BIA”) officials

and urged them to enforce the JFA and to compel the Tribe to cease its disenrollment

proceedings. Id. at ¶ 61. Plaintiffs contend that the BIA did not take action in response to

their request. Id. at ¶ 62. To force a response, in 2016, Plaintiffs claim that they filed a

formal petition with the Department of the Interior (“DOI”) asking agency officials,

including those at the BIA, to enforce the JFA and to compel the Tribe to cease its

unlawful disenrollment proceedings. Id. at ¶ 63. Following their formal petition, Plaintiffs

allege that they have repeatedly communicated with DOI officials, including Defendants,

in an effort to force a response to their petition. Id. at ¶ 64. Despite these efforts, Plaintiffs

contend that Defendants have taken no action on their petition. Id. Plaintiffs claim that

Defendants’ failure to enforce the JFA and to compel the Tribe to reenroll Plaintiffs has

caused Plaintiffs stigmatic injuries by denying them their Tribal identity as well as

financial injuries by denying them Tribal resources. Id. at ¶ 65.

        In response to Defendants’ alleged inaction, Plaintiffs now bring this case under

the APA to compel Defendants to respond to Plaintiffs’ petition and to enforce the JFA. In

response, Defendants have filed a motion to dismiss Plaintiffs’ Complaint, arguing that

judicial review is not appropriate under the APA as Defendants never reached a final

agency action because Plaintiffs failed to exhaust the administrative appeal process.




                                                3
                                 II. LEGAL STANDARD

       Plaintiffs’ cause of action arises under Section 702 of the APA which allows

individuals who have been harmed by an agency action to challenge that agency action in

court. 5 U.S.C. § 702. However, in order to challenge an agency action under the APA,

that agency action must be a “final agency action.” Id. at § 704. Defendants contend that

Plaintiffs do not have a “final agency action” to challenge and ask this Court to dismiss

Plaintiffs’ Complaint.

       Defendants ask this Court to dismiss Plaintiffs’ Complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6) based on Plaintiffs’ failure to administratively

exhaust their claim. Under Rule 12(b)(1), a Court must dismiss a plaintiff’s complaint if

the court lacks subject-matter jurisdiction. Fed. R. Civ. Pro. 12(b)(1). And, under Rule

12(b)(6), a Court must dismiss a plaintiff’s complaint if the plaintiff fails “to state a claim

upon which relief can be granted.” Id. at 12(b)(6). For the reasons given below, the Court

concludes that Defendants’ motion to dismiss for exhaustion is properly treated as a

motion to dismiss for failure to state a claim under Rule 12(b)(6).

       Defendants’ motion is best dealt with under Rule 12(b)(6) because the United

States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has clarified

that “the APA’s final agency action requirement is not jurisdictional.” Trudeau v. Fed.

Trade Comm’n, 456 F.3d 178, 184 (D.C. Cir. 2006); see also M2Z Networks, Inc. v. Fed.

Commc’n Comm’n, 558 F.3d 554, 558 (D.C. Cir. 2009) (“The Administrative Procedure

Act (APA) does not pose a barrier to jurisdiction because judicial exhaustion

requirements under the APA are prudential only.”). Because the APA’s requirement of a


                                               4
final agency action is not jurisdictional, even if Plaintiffs failed to exhaust their

administrative remedies, this Court would still have subject matter jurisdiction over

Plaintiffs’ claim. Accordingly, Rule 12(b)(1) is inapplicable, and the Court will evaluate

Defendants’ motion to dismiss under Rule 12(b)(6).

        Rule 12(b)(6) provides that a party may challenge the sufficiency of a complaint

on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ.

Pro. 12(b)(6). When evaluating a motion to dismiss for failure to state a claim, the district

court must accept as true the well-pleaded factual allegations contained in the complaint.

Atherton v. D.C. Off. of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, 559 U.S.

1039 (2010). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain

sufficient factual allegations that, if accepted as true, “state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570.

        Failure to exhaust administrative remedies is an affirmative defense which the

defendant bears the burden of pleading and proving. See Mondy v. Sec'y of the Army, 845

F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring); see also Bowden v.

United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of

administrative remedies is an affirmative defense, the defendant bears the burden of

pleading and proving it.”). If the defendant meets that burden, the plaintiff bears the

burden of pleading and proving the equitable avoidance of that affirmative defense. See

Bowden, 106 F.3d at 437.


                                                5
      III. EXHAUSTION OF PLAINTIFFS’ ADMINISTRATIVE REMEDIES

        The Court concludes that Plaintiffs’ Complaint should be dismissed because

Plaintiffs failed to administratively exhaust their claims. Only final agency actions are

subject to judicial review under the APA. 5 U.S.C. § 704. And, BIA regulations mandate

that an agency action is final only if it cannot be appealed to a superior authority within

the department. 25 C.F.R. § 2.6(a). Here, Defendants’ failure to act in response to

Plaintiffs’ petition was appealable and thus not final. Id. at § 2.8(b). Accordingly,

Plaintiffs do not present the Court with a final agency action subject to judicial review

under the APA.

        Plaintiffs bring their claim under the APA, which provides a waiver of federal

sovereign immunity for plaintiffs to challenge an agency action or inaction which has

harmed them. 5 U.S.C. § 702 (“An action in a court of the United States … stating a

claim that an agency or an officer or employee thereof acted or failed to act in an official

capacity or under color of legal authority shall not be dismissed … on the ground that it is

against the United States.”). But, only “final agency action[s]” or those actions made

reviewable by statute are subject to judicial review. Id. at § 704. Plaintiffs cite no statute

which would make Defendants’ decision reviewable. Accordingly, Defendants’ decision

is reviewable only if it is a “final agency action.” Id.

        As is relevant here, under the APA, an agency action is not final if the agency

requires that the decision be appealed to a “superior agency authority.” Id. In this case,

Defendants’ decision was not final under the APA because BIA regulations required that

the Defendants’ inaction be administratively appealed before becoming final.


                                               6
       In order to challenge inaction by the BIA, a petitioner must: 1) request in writing

that the official take the action originally asked of him or her; 2) describe the interest

which has been adversely affected by the official’s inaction; and 3) state that, unless the

official takes the action within ten days or by a date certain, an appeal will be filed. 25

C.F.R. § 2.8(a). If the official makes a decision contrary to the petitioner’s request or fails

to take the requested action within the designated timeframe, that official’s decision or

inaction “shall be appealable to the next official.” Id. at § 2.8(b). BIA regulations further

mandate that, prior to making an appeal, “[a]n appellant must file a written notice of

appeal in the office of the official whose decision is being appealed” Id. at § 2.9(a). The

regulations go on to specify the format, timing, and content required for the appeal. Id. at

§ 2.9-2.21.

       Plaintiffs do not allege, and there is no record evidence, that Plaintiffs engaged in

the prescribed appellate process to challenge Defendants’ inaction. And, BIA regulations

make clear that “[n]o decision, which at the time of its rendition is subject to appeal to a

superior authority in the Department, shall be considered final so as to constitute

Departmental action subject to judicial review under” Section 704 of the APA. 25 C.F.R.

§ 2.6(a). Accordingly, Defendants’ inaction, which was subject to an appeal, was not a

final agency action and is not subject to judicial review under the APA.

       Despite their failure to appeal Defendants’ inaction, Plaintiffs have two arguments

for why this Court should not dismiss their Complaint. First, Plaintiffs argue that the

statutes and regulations applicable to this case did not require them to administratively

appeal Defendants’ inaction prior to judicial review. Second, even if exhaustion is


                                               7
required, Plaintiffs argue that this Court should excuse their failure to exhaust. The Court

is persuaded by neither argument.

       First, the applicable statute and regulations required Plaintiffs to complete the

administrative appeal process before filing suit. The Court has already explained the

statute and regulations which required Plaintiffs to appeal Defendants’ inaction prior to

judicial review. Plaintiffs’ contention that those statutory and regulatory requirements do

not apply to this case is without merit.

       Plaintiffs argue that no statute requires them to exhaust their administrative

remedies prior to filing suit. But, Plaintiffs ignore Section 704 of the APA. Section 704 of

the APA mandates that only final agency actions are subject to judicial review and

explains that an agency action is not final if “an appeal to superior agency authority” is

required by regulation. 5 U.S.C. § 704. Here, an appeal to a superior agency authority

was required by BIA regulation, which mandates that agency inaction is “appealable to

the next official.” 25 C.F.R. § 2.8(b). Accordingly, the APA required Plaintiffs to appeal

Defendants’ inaction in order to obtain a final agency action subject to judicial review.

       Plaintiffs also argue that BIA regulations requiring administrative appeal do not

apply to this dispute. As an initial matter, the Court concludes that regulations specific to

the JFA, which Plaintiffs accuse Defendants of failing to enforce, are unnecessary

because the BIA’s general regulations provide a mechanism for challenging any agency

action or inaction. The BIA’s regulations of general applicability apply to “all appeals

from decisions made by officials of the Bureau of Indian Affairs[,]” including to the

agency inaction complained of here. 25 C.F.R. § 2.3(a).


                                              8
       Plaintiffs also argue that BIA regulations do not apply to this dispute because

Defendants “fail[ed] to identify any official subordinate to the Secretary with decision-

making responsibility under the JFA.” Pls.’ Opp’n, ECF No. 12, 5. But, Plaintiffs’

Complaint names two officials subordinate to the Secretary of the Interior, the Director of

the BIA and the Acting Assistant Secretary for Indian Affairs. It is clear from the face of

Plaintiffs’ Complaint that Plaintiffs were aware of at least two officials subordinate to the

Secretary with responsibility over their claim. Moreover, BIA regulations identify

various individuals who can decide appeals of agency decisions. See 25 C.F.R. § 2.4

(naming “officials [who] may decide appeals”).

       Plaintiffs go on to argue that, even if the BIA regulations do apply to this case,

those regulations did not “require” Plaintiffs to bring an administrative appeal before

seeking judicial review. Plaintiffs argue that the BIA’s administrative appeal process for

agency inaction is discretionary because the regulation states that a “person or persons

whose interests are adversely affected, or whose ability to protect such interests is

impeded by the failure of an official to act on a request to the official, can make the

official’s inaction the subject of appeal.” 25 C.F.R. § 2.8(a) (emphasis added). According

to Plaintiffs, the use of the word “can” renders the appellate process optional and thus not

a bar to judicial review. See Darby v. Cisneros, 509 U.S. 137, 147 (1993) (explaining that

the APA exhaustion requirements do not “require litigants to exhaust optional appeals”).

       The D.C. Circuit has not addressed this issue, but the Tenth Circuit, in Gilmore v.

Weatherford, 694 F.3d 1160 (10th Cir. 2012), rejected the exact argument that Plaintiffs

make here. 694 F.3d at 1169. While Gilmore is not binding on this Court, the Court is


                                              9
persuaded by its reasoning. According to Gilmore, the use of the word “can” does not

render the appellate process optional. Instead, “the optional ‘can’ applies to the ability of

an aggrieved individual to appeal–an individual is not compelled to appeal simply

because [he or] she is aggrieved by agency inaction. Proper exhaustion, however, requires

that a litigant ‘complete the administrative review process’ before seeking judicial

review.” Gilmore, 694 F.3d at 1169 (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). In

other words, the appellate process is optional only if a petitioner does not intend to seek

judicial review of agency inaction. But, if a petitioner intends to seek judicial review of

agency inaction, then the petitioner must complete the appellate process.

       Moreover, the Court finds that Plaintiffs’ interpretation of the word “can” is

illogical given the BIA’s statutory scheme. The “can” language appears only in the

regulatory provision addressing the administrative appeal process for agency inaction, not

agency action. According to Plaintiffs’ reading of the provision, the appellate process is

optional for cases of agency inaction but remains mandatory for cases of agency action.

Plaintiffs provide no explanation for this inconsistency, and “[i]t is well-understood that

statutes must be construed so as to avoid illogical or unreasonable results.” Int’l Union,

United Auto., Aerospace and Agr. Implement Workers of Am. v. Brock, 816 F.2d 761, 766

(D.C. Cir. 1987).

       In summary, Defendants’ inaction does not constitute a final agency action under

BIA regulations because Plaintiffs did not pursue the required administrative appeal

process. 25 C.F.R. § 2.8(b). And, the statute under which Plaintiffs bring their claims, the

APA, mandates that only final agency action is subject to judicial review. 5 U.S.C. § 704.


                                             10
Accordingly, under the APA in conjunction with BIA regulations, Plaintiffs’ Complaint

does not state a claim which is subject to judicial review. See Reliable Automatic

Sprinkler Co., Inc. v. Consumer Product Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir.

2003) (“If there was no final agency action …, there is no doubt that appellant would lack

a cause of action under the APA.”).

       Alternatively, if exhaustion is required, and the Court has concluded that it is,

Plaintiffs argue that any failure to exhaust should be excused. Exhaustion requirements

under the APA are prudential, and, in the court’s discretion, a plaintiff’s failure to exhaust

administrative remedies may be excused. See Mdewakanton Sioux Indians of Minnesota

v. Zinke, 264 F. Supp. 3d 116, 128 n.19 (D.D.C. 2017) (explaining that failure to follow

exhaustion requirements under the APA may be excused). However, the Court will not

use its discretion to excuse Plaintiffs’ failure to exhaust in these circumstances.

       The D.C. Circuit has explained that it is rare for courts within this Circuit to

waive the exhaustion requirement. UDC Chairs Chapter, Am. Ass’n of Univ. Professors v.

Bd. of Tr. of the Univ. of the District of Columbia, 56 F.3d 1469, 1475 (D.C. Cir. 1995)

(explaining that exhaustion is waived only in exceptional circumstances). Courts may

exercise their discretion to excuse a failure to exhaust when: 1) there are no facts in

dispute; 2) the disputed issue is outside the agency’s expertise; 3) requiring exhaustion

would be futile; or 4) the plaintiff’s need for immediate judicial review outweighs the

purposes of exhaustion. See Conservation Force v. Salazar, 919 F. Supp. 2d 85, 91-92

(D.D.C. 2013) (citing Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir.




                                              11
2004)). In its discretion, the Court concludes that none of these grounds justify excusing

Plaintiffs’ failure to exhaust the administrative appeal process.

        First, Plaintiffs argue that there is no dispute as to the facts such that the Court

would benefit from additional record development at the agency level. Because the issue

is purely legal, Plaintiffs contend that this case “presents issues on which courts, not

[administrators] are relatively more expert,” so exhaustion should be waived. Athlone

Indus., Inc. v. Consumer Product Safety Comm’n, 707 F.2d 1485, 1488-89 (D.C. Cir.

1983) (internal quotation marks omitted). The Court disagrees.

       At this stage in litigation, the Court cannot conclude that there are no facts in

dispute. On a motion to dismiss, all well-plead facts in the complaint are taken to be true.

English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013). Accordingly, it is

unsurprising that Defendants did not challenge Plaintiffs’ factual allegations at this

juncture in the proceeding. And, the Court will not take Defendants failure to challenge

Plaintiffs’ factual allegations as an indication that Defendants agree with all of Plaintiffs’

asserted facts. Moreover, even if Defendants were to agree with the factual record as it

currently stands, the administrative appeal process could produce additional facts which

would benefit the Court in its review. Accordingly, the Court will not exercise its

discretion to excuse Plaintiffs’ failure to exhaust on this ground.

       The second ground for excusing Plaintiffs’ failure to exhaust is equally

unavailing. Plaintiffs do not even argue that the disputed issue–whether the JFA requires

Defendants to compel the Tribe to reenroll Plaintiffs–is outside the agency’s area of

expertise. And, the Court concludes that this issue is of the type which would benefit


                                              12
from agency analysis as it involves tribal membership, an issue on which the BIA is

experienced. Accordingly, the Court will not excuse Plaintiffs’ failure to exhaust on this

ground.

       Third, Plaintiffs contend that exhaustion would be futile because Defendants have

already decided that the JFA does not require them to take the actions that Plaintiffs

request. When it is clear that further administrative action will result in an adverse

decision, courts can exercise their discretion to excuse exhaustion and proceed with

judicial review of the issues. See Randolph-Sheppard Vendors of Am. v. Weinberger, 795

F.2d 90, 105-06 (D.C. Cir. 1986) (explaining that a failure to exhaust can be excused

“where it appears that agency inaction is in reality a statement by the agency of its

unwillingness to consider the issue”). But, here, the Court concludes that requiring

Plaintiffs to exhaust their administrative remedies would not be futile.

       Plaintiffs cite Electronic Privacy Information Center v. Internal Revenue Service,

No. 17-5225, 2018 WL 6613339 (D.C. Cir. Dec. 18, 2018) (“EPIC”), for the proposition

that failure to exhaust does not bar judicial review when a plaintiff’s requests to an

agency are “repeatedly met with a closed door.” 2018 WL 6613339, *4. But, this case is

distinguishable from EPIC. As the D.C. Circuit explained, EPIC did not present “the

ordinary exhaustion case in that the IRS [did] not claim that EPIC neglected to file an

administrative appeal.” Id. at *3. Here, Plaintiffs neglected to file an administrative

appeal. Moreover, in EPIC, the D.C. Circuit determined that “[n]one of the purposes of

exhaustion supports barring judicial review of EPIC’s claims.” Id. at *4. Here, in its

discretion, the Court concludes that the purposes of exhaustion support a bar to judicial


                                             13
review as completion of the administrative appeal process would “prevent[] premature

interference with agency processes, … afford[] the parties and the courts the benefit of

[the agency’s] experience and expertise, … [and] compile[] a record which is adequate

for judicial review.” Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1259 (D.C.

Cir. 2003) (internal quotation marks omitted).

       Completing the administrative appeal process would allow Defendants the

opportunity to develop, refine, or change their position on Plaintiffs’ claim. The changes

which could result from the appeal process have the potential to limit, or even obviate,

the need for judicial review. The likelihood for change is especially great here as

Plaintiffs present an issue of first impression for the agency and the agency has not yet

had the opportunity to illicit input from interested parties. Defendants’ failure to act in

response to Plaintiffs’ repeated requests is not sufficient to infer that Defendants have

already determined the outcome of Plaintiffs’ petition. The BIA regulations anticipated

agency inaction and created an appellate procedure to address such inaction. Given

Plaintiffs’ failure to pursue that administrative appeal process, the Court will not infer a

preordained outcome from Defendants’ inaction.

       Moreover, the Court disagrees with Plaintiffs’ assertion that Defendants have

already expressed a firm opposition to Plaintiffs’ claim. Plaintiffs cite to a footnote in

Defendants’ motion which states: “Defendants disagree with Plaintiffs that the [JFA]

requires the Department to take the particular actions that Plaintiffs assert.” Defs.’ Mot.,

ECF No. 10, 2 n.1. The Court finds that this general denial is not an unequivocal

statement that, on administrative appeal, Defendants will refuse Plaintiffs’ requested


                                              14
relief. Even when agencies are not required by statute to take action, they often still retain

discretionary authority to do so. Accordingly, regardless of whether or not Defendants

view themselves as statutorily required to take action, Defendants may still choose to take

action affording Plaintiffs relief if Plaintiffs seek an administrative appeal. See Am. Assoc.

of Univ. Professors, 56 F.3d at 1475 (explaining that exhaustion should be excused on

futility grounds only if it is certain that the plaintiff’s claim would be denied by the

agency).

        Accordingly, the Court concludes that an administrative appeal pursuant to BIA

regulations would not be futile. And, the Court will not exercise its discretion to excuse

Plaintiffs’ failure to exhaust on futility grounds.

        Finally, Plaintiffs contend that delaying judicial review in order to afford time for

an administrative appeal would cause them irreparable harm. Plaintiffs claim that

expulsion from the Tribe has caused them to lose their Tribal identities as well as to lose

the benefits and privileges of tribal membership. Plaintiffs argue that these harms are

irreparable and will only be exacerbated by a delay in judicial review.

        Despite Plaintiffs’ alleged harms, in its discretion, the Court will not excuse

Plaintiffs’ failure to exhaust on this ground. Plaintiffs have spent approximately three

years corresponding with Defendants in an effort to get relief. Yet, during this time

Plaintiffs failed to take advantage of the relatively straight-forward process that BIA

regulations provide for compelling agency action. The Court will not exercise its

discretion to forego exhaustion, and the benefits to the administrative record that it

entails, because Plaintiffs have delayed taking the necessary steps and created an


                                              15
emergency of their own making. See Ass’n of Flight Attendants-CWA v. Chao, 493 F.3d

155, 159 (D.C. Cir. 2007) (requiring exhaustion because “having largely disregarded

agency procedures the [plaintiffs] are in no position to complain of agency delay”).

       The Court finds no grounds to exercise its discretion to excuse Plaintiffs’ failure

to exhaust the administrative appeal process. Absent completion of the administrative

appeal process, Plaintiffs do not present a final agency action subject to judicial review

under the APA. Accordingly, Plaintiffs have failed to state a claim, and their Complaint is

DISMISSED WITHOUT PREJUDICE. See Reliable, 324 F.3d at 735 (explaining that the

plaintiff had failed to state a claim under Rule 12(b)(6) because there was no final agency

action).

                                    IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss.

Plaintiffs failed to state a claim for which relief can be granted as, absent an

administrative appeal, Defendants’ inaction does not constitute a final agency action

subject to judicial review. And, the Court finds no grounds on which to exercise its

discretion to excuse Plaintiffs’ failure to exhaust the administrative appeal process.

Accordingly, Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: January 7, 2019
                                                          /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




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