                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

                                              )
YUKON-KUSKOKWIM HEALTH                        )
CORPORATION,                                  )
                                              )
                  Plaintiff,                  )
                                              )
      v.                                      )       Civil Action No. 1:17-cv-002474-TSC
                                              )
UNITED STATES OF AMERICA, et al.              )
                                              )
                                              )
               Defendants.                    )
                                              )

                                      MEMORANDUM OPINION

       Plaintiff Yukon-Kuskokwim Health Corporation (“YKHC”) brings this mandamus and

Administrative Procedure Act (“APA”) suit against Defendants United States of America, Ryan

Zinke, Secretary of the U.S. Department of the Interior (“DOI”), and Heather Wilson, Secretary

of the U.S. Department of the Air Force (“Air Force”). YKHC seeks to compel compliance with

Public Law 102-497, which requires Defendants to convey a parcel of land to YKHC. (ECF No.

1 (“Compl.”).) YKHC alleges that Defendants have unreasonably delayed cleaning up and

conveying the land, violating their statutory obligation to do so by September 30, 1993.

       Defendants move, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to

dismiss the Complaint, or, in the alternative, for summary judgment under Rule 56. (ECF No. 11

(“Defs.’ Br.”); ECF No. 12 (“Def. Mot. for Summ. J.”).) Upon consideration of the motions, the

parties’ briefs, and oral argument, and for the reasons set forth below, the court the court will

DENY Defendants’ motion to dismiss and their motion for summary judgment.
                                      I.     BACKGROUND

       YKHC is a non-profit corporation established by fifty-eight federally recognized Alaskan

Indian Tribes. (Compl. ¶ 5.) It provides healthcare services to 30,000 people in a region

encompassing 75,000 square miles, including through a 50-bed acute care hospital in Bethel,

Alaska. (Id. ¶ 5, 9.) To address a housing problem facing the hospital in 1992, Congress enacted

legislation requiring the DOI and the Air Force to transfer a parcel of land and the unused

buildings on the land to YKHC. (Compl. ¶¶ 10 (citing Act of Oct. 24, 1992, Pub. L. No. 102-

497, § 13(a), 106 stat. 3261), 13.) The statute also required the DOI and the Air Force to

“complete” any necessary “environmental response . . . to protect human health and the

environment with respect to any hazardous substance or hazardous waste remaining on the

property” or to provide YKHC funding to do so. Pub. L. No. 102-497 § 13(b). Defendants were

to complete their environmental response and convey the parcel YKHC before September 30,

1993. Id. § 13(a)-(b). Today—over 25 years later—YKHC alleges that neither the

environmental remediation nor conveyance has occurred. (Compl. ¶ 26.)

       The agencies first missed the September 30, 1993 deadline after failing to remediate a

fuel leak from an on-site storage tank that seeped into the land. (Compl. ¶ 14.) They engaged in

almost a decade of remediation efforts, including a site characterization, human health risk

assessment, ecological risk assessment, and mitigation aimed at an on-site sewage lagoon. (ECF

No. 15-1 (“Preliminary Assessment Report”) at 23–24.) In 2000, despite the cleanup efforts, the

land still had petroleum-contaminated soil from the 1993 oil spill. (ECF No. 11-2 (“Admin.

Record”) at 5.) Nevertheless, the Alaska Department of Environmental Conservation concluded

the agencies had attempted sufficient remediation and categorized the parcel as “no further

remedial action required.” (Admin. Record at 2.)




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        Claiming they had completed environmental remediation, the DOI drafted conveyance

documents and sent them to YKHC in August 2001. (Compl. ¶ 17.) But a fire that month halted

the conveyance by causing more damage to the property and releasing asbestos, lead paint, and

petroleum contaminants. (Compl. ¶ 19; ECF No. 11-4 (“Johnson Decl.”) ¶ 4.) The next year,

the parties discussed further cleanup efforts, but no funds were allocated to perform it. (Compl.

¶ 21.) Over the next fifteen years, the parties continued to discuss cleanup and conveyance,

including multiple investigations of the land and facility and cost evaluations for demolition and

site restoration. (Compl. ¶ 22, Johnson Decl. ¶ 8.) But sufficient funds were never allocated to

complete the necessary remediation. (Compl. ¶ 21–22, see Johnson Decl. ¶¶ 6–8.)

        Finally, in 2016, YKHC asked the DOI and the Air Force to complete the cleanup

“expeditiously” and convey the land. (Compl. ¶ 24.) The Air Force responded that it had

completed remediation in 2001. (Id. ¶ 25.) Since that time, the Defendants have maintained they

lack funds to either complete the environmental remediation or to give YKHC the funds to do so.

(Id. ¶ 26.)

        On November 16, 2017, YKHC filed this suit, alleging the cleanup and conveyance were

unreasonably delayed and seeking both mandamus and APA relief.

                                    II.     LEGAL STANDARD

        Federal courts are of limited jurisdiction and the limits are especially important in the

agency review context, where “Congress is free to choose the court in which judicial review of

agency decisions may occur.” Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332 (D.C. Cir.

2013) (internal quotation marks omitted) (quoting Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir.

2007)). The law presumes that “a cause lies outside [the court’s] limited jurisdiction” unless the

party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am.,




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511 U.S. 375, 377 (1994). Thus, plaintiffs bear the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

          In evaluating a motion to dismiss for lack of jurisdiction under Federal Rule of Civil

Procedure Rule 12(b)(1), a court must “assume the truth of all material factual allegations in the

complaint and ‘construe the complaint liberally, granting plaintiff[s] the benefit of all inferences

that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). But the

court “need not accept factual inferences drawn by plaintiffs if those inferences are not supported

by facts alleged in the complaint, nor must the Court accept [plaintiffs’] legal conclusions.”

Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United

States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). A motion to dismiss under 12(b)(1) “is not

limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.

1986), vacated on other grounds, 482 U.S. 64 (1987). And “a court may consider such materials

outside the pleadings as it deems appropriate to resolve the question [of] whether it has

jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22

(D.D.C. 2000) (citing, inter alia, Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.

1992)).

          Conversely, a motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the

legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible

when the factual content allows the court to “draw the reasonable inference that the defendant is




                                                       4
liable for the misconduct alleged.” Id. Plaintiffs’ factual allegations need not be “detailed,” but

“the Federal Rules demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me

accusation.’” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting

Iqbal, 556 U.S. at 678).

                                          III.    ANALYSIS

       Defendants move to dismiss under both Rule 12(b)(1) and Rule 12(b)(6), arguing that

Plaintiff’s claims are untimely.

       The APA claim is governed by the six-year statute of limitations for suits against the

United States. 28 U.S.C. § 2401(a). Controlling authority from this Circuit requires the court to

treat § 2401(a) as a jurisdictional statute of limitations, see, e.g., P & V Enterprises. v. U.S. Army

Corps of Engineers, 516 F.3d 1021, 1026 (D.C. Cir. 2008), despite the Supreme Court’s ruling in

United States v. Kai Fun Wong, 135 S. Ct. 1625, 1632 (2015), that the neighboring provision,

§ 2401(b), did not provide a jurisdictional statute of limitations. See Jafarzadeh v. Nielsen, 321

F. Supp. 3d 19, 36 (D.D.C. 2018) (noting that because precedent treating § 2401(a) as

jurisdictional has not been explicitly abrogated, the D.C. Circuit’s holding remains binding).

       The parties disagree on which statute of limitations governs the mandamus action arising

under Public Law 102-497, which was enacted in 1992, and contains no statute of limitations

itself. Defendants argue that the catch-all provision in 28 U.S.C. § 1658, providing a four-year

limit for civil actions arising under an Act of Congress enacted after 1990, governs. (Defs. Br. at

8–9.) YKHC contends that § 1658 does not apply to actions against the United States because

§ 2401(a) provides the catch-all statute of limitations for all actions against the United States

under statutes with no specific statute of limitations. (ECF No. 15 (“Pl. Br.”) at 12.) The court,

however, need not resolve this dispute because the parties conceded at argument that which




                                                      5
statute of limitations applies does not affect the ultimate question of whether this action is timely.

(ECF No. 21 (“Hr’g Tr.”) at 3:3–6; 16:15–16.)

          Defendants contend that both the four- and six-year statutes of limitation have run

because the agencies first violated their statutory obligation on October 1, 1993, when they failed

to meet the deadline, and YKHC sued over twenty years later. (Defs. Br. at 10.) YKHC

responds that, under the continuing violation doctrine, their claims are not time-barred. (Pl. Br.

at 28.)

          The D.C. Circuit explained the continuing violation doctrine in the context of

unreasonably delayed agency action in The Wilderness Soc. v. Norton, 434 F.3d 584, 588 (D.C.

Cir. 2006). The Circuit found that the lower court erred in dismissing an action as untimely

under § 2401(a) because “[t]his court has repeatedly refused to hold that actions seeking relief

under 5 U.S.C. § 706(1) to ‘compel agency action unlawfully withheld or unreasonably delayed’

are time-barred if initiated more than six years after an agency fails to meet a statutory deadline.”

434 F.3d at 588 (citing In re United Mine Workers of America Int’l Union, 190 F.3d 545 (D.C.

Cir. 1999); see also In re Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000)). The Court

explained that because the plaintiff’s allegations were not “about what the agency has done but

rather about what the agency has yet to do,” it was unlikely that the case was time-barred. 434

F.3d at 588. As Defendants note however, the Circuit then found that the plaintiff lacked

standing and affirmed dismissal. Id.

          In Earle v. District of Columbia, 707 F.3d 299, 307 (D.C. Cir. 2012), the D.C. Circuit

noted that it has “occasionally recognized” an application of the continuing violation doctrine “if

the text of the pertinent law imposes a continuing obligation to act or refrain from acting.” The

Court explained that where a statute “imposes a continuing obligation to act, a party can continue




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to violate it until that obligation is satisfied and the statute of limitations will not begin to run

until it does.” Id. (citing AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752, 763

(D.C. Cir. 2012) (Garland, J. concurring)). The Court ultimately found the plaintiff’s claims

failed for other reasons. Id.

        Defendants argue that the continuing violation doctrine is equitable and therefore cannot

overcome a jurisdictional statute of limitation like § 2401(a). (Defs. Br. at 12; ECF No. 18

(“Defs. Reply”) at 4–5.) This contention, however, rests on a misunderstanding of the

continuing violation doctrine, which does not equitably toll a statute of limitations but rather

determines when a claim accrues. Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 45

(D.D.C. 2013) (citing Earle, 707 F.3d at 306). As the court explained in Appalachian Voices,

even if jurisdictional statutes of limitation preclude equitable doctrines, “the continuing violation

doctrine nonetheless applies to determine when a claim accrues rather than to excuse the

plaintiff’s failure to bring a claim that has long-since accrued.” 989 F. Supp. 2d 30, 45 (D.D.C.

2013) (citing Earle, 707 F.3d at 306; McKinney v. U.S. Postal Serv., No. 11–631, 2013 WL

164283, at *3–4 (D.D.C. Jan. 16, 2013))); but see Alaska Cmty. Action on Toxics v. EPA, 943 F.

Supp. 2d 96, 108 (D.D.C. 2013) (holding the jurisdictional nature of § 2401(a) prohibits

application of the continuing violation doctrine). While other courts in this District have

characterized the continuing violation doctrine as equitable, see Alaska Community Action on

Toxics, 943 F. Supp. 2d at 108, the court finds that doing so is “incompatible with Earle’s

discussion of the continuing violation doctrine as a rule governing claim accrual.” Appalachian

Voices, 989 F. Supp. 2d at 46. This court agrees with Appalachian Voices that construing the

continuing violation doctrine to govern accrual “reconciles the reasoning of the Circuit’s dicta

with its precedent concerning the jurisdictional nature of § 2401(a).” Id. Therefore, the court




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concludes that the jurisdictional nature of § 2401(a) does not bar application of the continuing

violation doctrine here.

        To apply the doctrine, the court must first determine whether Public Law 102-497, the

statute Defendants allegedly violated, creates a continuing obligation, which is a “question of

statutory construction.” Earle, 707 F.3d at 307. Defendants argue that the law does not create a

“continuing” obligation but a discrete one. (Hr’g Tr. at 24:8–16.) But the “continuing” nature of

an obligation does not necessarily stem from statutory obligations that are repeated, but rather

those that impose a “continuing obligation to act.” Earle, 707 F.3d at 307.

       Defendants had an unambiguous statutory deadline to complete the environmental

remediation and conveyance by September 30, 1993. This is similar to the deadline in In re

Bluewater Network, 234 F.3d 1305, 1314 (D.C. Cir. 2000), in which the Coast Guard had a

statutory deadline of August 18, 1991, to promulgate certain regulations. Id. at 1307. It did not

meet the deadline but did undertake a failed temporary rulemaking in 1997 that expired in 1999.

Id. When plaintiffs challenged the Coast Guard’s failure to promulgate a rule by the statutory

deadline, the agency argued that the suit was untimely, and plaintiffs should have sued to

challenge the temporary rulemaking. Id. at 1312. The D.C. Circuit disagreed. It found that

because the Coast Guard still had not enacted the regulations, after the deadline passed the

agency was still violating its statutory obligation. Id. at 1314. The Circuit noted that it was

“faced with a clear statutory mandate, a deadline nine-years ignored, and an agency that has

admitted its continuing recalcitrance.” Id. at 1316. Likewise, Defendants here had a clear

statutory mandate to clean up and convey the property by September 30, 1993; they ignored the

deadline for over twenty-five years, and they concede that they have not fulfilled their statutory

obligation. (Hr’g Tr. 13:11–15.) Thus, the court concludes that Public Law 102-497 imposes a




                                                     8
“continuing obligation to act” on Defendants such that they “continue to violate it until that

obligation is satisfied.” Earle, 707 F.3d at 307. Therefore, YKHC pleads a timely claim, and the

court will deny Defendants’ motion to dismiss. The court will also deny Defendants’ alternative

motion for summary judgment as premature.

                                       IV.     CONCLUSION

       Accordingly, the court will DENY Defendants’ motion to dismiss and will DENY their

motion for summary judgment.



Date: March 17, 2020


                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




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