Opinion
8:02CV500
September 2, 2003.
MEMORANDUM AND ORDER
This matter is before the court on defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Filing No. 31. Plaintiffs oppose this motion contending that subject matter jurisdiction exists in this case. I have carefully reviewed the record, briefs in support of and in opposition to the motion, and the relevant case law. I conclude that the motion to dismiss should be granted.
Facts
The decedent in this case, Herbert B. Levering, an enrolled member of the Banncock Tribe at Fort Hall, Idaho, was the beneficial owner of land held in trust for him by the United States through the Department of Interior. Upon the death of Herbert B. Levering, the Department of Interior had to determine who was entitled to the land left after his death. 25 U.S.C. § 372.
Herbert Levering was married to Ann Marie Spiker Levering on February 11, 1941. Two sons were born, Levi Herbert Levering and Randolph C. Levering, Levi before the marriage and Randolph during the marriage. Herbert was named as the father on both birth certificates. In 1945 Herbert and his wife divorced. Herbert died intestate on March 8, 1981, and he was survived by a sister who died April 24, 1982. He has twenty nieces and nephews from his deceased siblings.
On March 31, 1982, a probate hearing was held and testimony given regarding the two sons. The court issued an order determining that these two sons, born September 29, 1940, and December 22, 1942, were the heirs to Herbert Levering. The decision became final on November 17, 1985. Levi Levering died in January 1999, and the plaintiffs in this case sought to reopen the probate proceedings on the basis that neither Randolph or Levi were sons of Herbert Levering.
A petition was filed to reopen the estate, and on April 20, 2001, Indian Probate Judge Kathleen H. Switzer denied the petition to reopen. Plaintiffs appealed and the Interior Board of Indian Appeals (IBIA) vacated and remanded to Judge Switzer for a determination as to whether these were proper parties to seek to re-open the estate. On October 19, 2001, Judge Switzer determined that these plaintiffs were not proper parties to seek re-opening of the estate. In response to the IBIA's remand, she determined that evidence submitted to her by the petitioners was conflicting and inconclusive. Judge Switzer concluded that Herbert Levering died leaving two heirs, based in part on the presumption that these children were born during the marriage (although the facts show that only one child was born during the marriage) and that Herbert Levering was named on the birth certificates as the father. Further, the decedent was given custody of Levi following the divorce from his wife, and the decedent had one of his relatives raise Levi. There was also testimony at the first hearing that military records indicated that the deceased was the father of both sons. Plaintiffs appealed and the IBIA affirmed the decisions on December 31, 2001. Plaintiffs filed a complaint in federal court in Idaho and venue was subsequently changed to Nebraska on October 22, 2002.
Discussion
Plaintiffs contend that they were denied the right to a hearing, and therefore due process, before an administrative law judge pursuant to 25 C.F.R. § 15.405, and thus they were unable to present any evidence and argument. Plaintiffs claim they would have presented evidence that Levi was born September 29, 1940, prior to Ann Marie Spiker's marriage to Herbert on February 11, 1941, and they would have presented evidence that Randolph was conceived while Herbert was in the army for ten months. There was also a letter they would have presented from Herbert's attorney in 1945 stating that Randolph was not Herbert's child, although the letter stated nothing about the paternity of Levi.
Defendants argue that § 15.405 is inapplicable as that section applies to the initial probate proceedings, not to petitions to re-open estates. Further, defendants argue that plaintiffs were afforded a full administrative review, even though they waited fifteen years to allege their claim against the estate. An ALJ reviewed the petition, an appeal was conducted, the ALJ again reviewed the petition, and a second appeal occurred. Plaintiffs evidently wanted DNA evidence to be produced, but both the father Herbert B. and the son Levi are deceased. Further, the mother, Ann Marie Spiker Levering, is also deceased.
My review is very limited. In general, I cannot review the merits of the decision of the Secretary of Interior settling the claims to the allotted Indian trust lands. First Moon v. White Tail, 270 U.S. 243 (1926); Kicking Woman v. Hodel, 878 F.2d 1203, 1205 (9th Cir. 1989). I would not have jurisdiction but for the fact that plaintiffs have alleged due process violations. See Anderson v. Babbitt, 230 F.3d 1158 (9th Cir. 2000); see also Shangreau v. Babbitt, 68 F.3d 208 (8th Cir. 1996) (allowing review for denial of equal protection); Califano v. Sanders, 430 U.S. 99 (1977) (presumption of review when constitutional questions are presented). An examination of the record indicates that plaintiffs' request for re-opening was reviewed by the ALJ and then again on appeal. The ALJ determined that plaintiffs in this case could only become heirs if there were not issue of the decedent. The combination of the birth certificates, an army listing by the decedent that Levi was his son, and Bureau of Indian Affairs records were found by the ALJ to be sufficient to preclude the plaintiffs' contentions regarding paternity.
It is not my prerogative to agree or disagree with the findings of the ALJ. I must only determine if due process was accorded to the plaintiffs. Plaintiffs have cited no legal support for their argument that they are entitled to a hearing on a request to re-open proceedings. I agree with the defendants that 25 C.F.R. § 15.405 does not provide the support for a hearing before an administrative law judge for proceedings such as these as suggested by the plaintiffs. In fact, the regulations that deal with re-opening state that even if the ALJ determines that the petition has merit, the ALJ will determine "with or without a hearing as she or he may determine" whether to "adhere to, modify, or vacate the original decision." 43 C.F.R. § 4.242(c). Consequently, the language does not require a hearing even if the petition to re-open has merit. Allowance of a hearing is purely discretionary on the part of the ALJ. Here, the ALJ provided a review of the evidence presented to her and concluded that at the very least Levi Levering was the son of Herbert Levering and would have properly inherited Herbert's estate. That is all the regulatory scheme requires her to do.
Further, the re-opening of estates that have been closed for more than three years is authorized as follows:
[re-openings] shall be allowed only upon a showing that a manifest injustice will occur; that a reasonable possibility exists for correction of the error; that the petitioner had no actual notice of the original proceedings; and that petitioner was not on the reservation or otherwise in the vicinity at any time while the public notices were posted.43 C.F.R. § 4.242(h). Petitioners must also show that they exercised due diligence in seeking the reopening. See, e.g., Estate of Woody Albert, 14 IBIA 223 (1986). Judge Switzer determined that appellants had not shown that a manifest injustice would result if the case was not reopened. Ex. E (June 22, 2001, Order remanding case to ALJ). The appeals judge instructed the ALJ to determine if petitioners were the proper parties to seek reopening and to determine if they showed due diligence. On remand, the ALJ determined that the petitioners were not the proper parties to re-open this case, as at least one of the sons was the presumptive heir to his father's estate. The Appeals Council affirmed this decision and further noted that the petitioners failed to even attempt to show that they exercised due diligence when they sought to reopen the case, as they allowed 15 years to pass. Exhibit H. No explanation has been forthcoming.
I conclude that the petitioners received an administrative review that comports with the requirements of the due process clause and all the process to which they are entitled. Consequently, I shall grant defendants' motion to dismiss.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that defendants' motion to dismiss, Filing No. 31, is granted and this case is dismissed.