IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

__________________________________________________________________

DOCKET NO.: 09-15336-AA

HOLLYWOOD MOBILE ESTATES LIMITED, a Michigan Limited Partnership, and LASALLE BANK MIDWEST NATIONAL

ASSOCIATION,

Appellants,

v.

SEMINOLE TRIBE OF FLORIDA, UNITED STATES DEPARTMENT OF THE INTERIOR, and HON. KEN SALAZAR, in his official capacity

as Secretary of the Interior,

Appellees.

__________________________________________________________________

Appeal from the United States District Court for the Southern District of Florida

District Court Case No.: 08-CIV-610489-WPD

APPELLANT LASALLE BANK MIDWEST NATIONAL ASSOCIATION’S INITIAL BRIEF

JOSEPH M. GOLDSTEIN Florida Bar No.: 820880 TEMPLE FETT KEARNS Florida Bar No.: 0306680 SHUTTS & BOWEN LLP 200 East Broward Boulevard PNC Center, Suite 2100 Fort Lauderdale, Florida 33301 Telephone: (954) 524-5505 Facsimile: (954) 524-5506

Hollywood Mobile Estates Ltd. v. Seminole Tribe No. 09-15336-AA

C-1 of 2

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26, Fed. R. App. P., and Eleventh Circuit Rule 26.1, the

undersigned counsel of record certifies that the following listed persons and/or

entities have an interest in the outcome of this case as defined in said rules:

Bank of America Corp. (BAC)

Bank of America, N.A., successor by merger with LaSalle Bank

Bruce S. Rogow, P.A.

Dimitrouleas, Judge William P. (District Court Judge)

Dorsey & Whitney, LLP

Goldstein, Joseph M., Esq.

Gunther, Cynthia E., Esq.

Hamaway, Michael P., Esq.

Hollywood Mobile Estates, Ltd.

Kearns, Temple Fett, Esq.

Kempthorne, Dirk (Secretary of the Interior)

LaSalle Bank Midwest, N.A.

Lindsey, Marilynn Koonce, Esq.

Mombach Boyle & Hardin

Mullin, John M., Esq.

Orlovsky, Donald A., Esq.

Hollywood Mobile Estates Ltd. v. Seminole Tribe No. 09-15336-AA

C-2 of 2

Rogow, Bruce S., Esq.

Rosenbaum, Honorable Robin S. (District Court Magistrate)

Seminole Tribe of Florida

Shutts & Bowen LLP

Snow, Honorable Lurana S. (District Court Magistrate)

Swanick, Christine L., Esq.

Tripp Scott, P.A.

United States Attorneys Office

United States Department of the Interior

Wahpepah, Wilda, Esq.

Dated: December 30, 2009.

/s/ Temple Fett Kearns TEMPLE FETT KEARNS, ESQ. Florida Bar No. 0306680

i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 34 of the Federal Rules of Appellate Procedure and

Eleventh Circuit Rule 34-3(c), Plaintiff-Intervenor Appellant LaSalle Bank

Midwest National Association respectfully requests oral argument to facilitate a

full exposition of the complex issues, history, and record in this case.

ii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT....................................................................C-1

STATEMENT REGARDING ORAL ARGUMENT ................................................i

TABLE OF CONTENTS.......................................................................................... ii

TABLE OF AUTHORITIES ....................................................................................iv

STATEMENT OF JURISDICTION....................................................................... vii

STATEMENT OF THE ISSUES...............................................................................1

STATEMENT OF THE CASE..................................................................................1

(i) Course of Proceeding and Disposition Below ......................................1

(ii) Statement of the Facts ...........................................................................3

(a) The Parties’ Interests...................................................................3

(b) The Regulatory Regime ..............................................................5

(c) The Secretary’s Decision ............................................................8

(d) The District Court’s Orders ........................................................9

(iii) Standard of Review .............................................................................10

SUMMARY OF ARGUMENT ...............................................................................12

ARGUMENT ...........................................................................................................14

I. THE COURT HAS AUTHORITY TO GRANT RELIEF TO HME. ..........14

A. The Court Erred By Applying The Mandamus Standard. ..................16

B. The Court May Set Aside Agency Action That Is An Abuse Of Discretion Or May Order An Agency To Exercise Its Discretion. ...........................................................................................20

C. The Court May Order The Agency To Comply With Its Own Regulations. .........................................................................................21

iii

D. The Court May Remand A Case For Further Proceedings Consistent With Its Opinion................................................................23

II. INTERIOR HAS A NON-DELEGABLE DUTY TO ENFORCE THE LEASE. .................................................................................................24

III. THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO REHEAR AND AMEND THE JUDGMENT. ..................29

CONCLUSION........................................................................................................30

iv

TABLE OF AUTHORITIES

Page(s) CASES

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) ..........................................18

American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237 (11th Cir. 1985)..................................................................... 11, 29

American Horse Protection Ass’n v. Lyng, 812 F.2d 1 (D.C. Cir. 1987) ...............23

Asia Pacific Airlines v. United States, 68 Fed. Cl. 8 (Fed. Cl. 2005) .....................19

Cash v. Barnhart, 327 F.3d 1252 (11th Cir. 2003) ........................................... 24, 25

Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360 (5th 1980) ...... 12, 29

Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976) .............................................25

Environmental Defense Fund v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970) .............21

Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986) ......................................................26

Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972)...........................................18

Florida Ass’n of Rehabilitation Facilities, Inc. v. State of Fla. Dep’t of Health and Rehabilitative Servs., 225 F.3d 1208 (11th Cir. 2000) .......29

Florida Evergreen Foliage v. E.I. Dupont De Nemours and Co., 470 F.3d 1036 (11th Cir. 2006)............................................................................11

Flynn v. Shultz, 748 F.2d 1186 (7th Cir. 1984).......................................................25

Gallo v. Mathews, 538 F.2d 1148 (5th Cir. 1976)...................................................16

Gilbert v. Johnson, 490 F.2d 827 (5th Cir. 1974)....................................................29

Glover v. Liggett Group, Inc., 459 F.3d 1304 (11th Cir. 2006) ..............................10

Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964).............................................18

v

Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997) ..........17

N.A.A.C.P. v. Sec’y of Hous. and Urban Dev., 817 F.2d 149 (1st Cir. 1987) ......................................................................... 18, 20

Nelson v. United States, 64 F. Supp.2d 1318 (N.D. Ga. 1999) ...............................19

Patel v. Reno, 134 F.3d 929 (9th Cir. 1998)............................................................26

Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800 (11th Cir. 1993)....................................................................... 11, 29

Rhode Island Higher Educ. Assistance Auth. v. Sec’y U.S. Dept. of Educ., 929 F.2d 844 (1st Cir. 1991)................................................ 23, 24

Save the Dunes Council v. Alexander, 584 F.2d 158 (7th Cir. 1978).....................25

Secora v. Fox, 747 F. Supp. 406 (S.D. Ohio 1989) .................................................17

Smilde v. Herman, 201 F.3d 449, Case No. 99-1217, 1999 WL 1243081 (10th Cir. Dec. 21, 1999) ......................................................17

Ssab North Am. Div. v. U.S. Bureau of Customs et al., 571 F. Supp.2d 1347 (Ct. Int’l Trade 2008).................................................. 16, 17

St. Charles Foods, Inc., v. America’s Favorite Chicken Co., 198 F.3d 815 (11th Cir. 1999)..............................................................................11

State of Iowa ex rel Miller v. Block, 771 F.2d 347 (8th Cir. 1985)........................20

United Nuclear Corp. v. United States, 912 F.2d 1432 (Fed. Cir. 1990) ... 22, 24, 28

United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S. Ct. 1059 (1940) ............................................................26

Webster v. Doe, 486 U.S. 592, 108 S. Ct. 2047 (1988)...........................................21

Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072 (9th Cir. 1983)..................22

STATUTES 5 U.S.C. §§ 701 et seq................................................................................................3

vi

5 U.S.C. § 705..........................................................................................................16

5 U.S.C. § 706..........................................................................................................16

25 U.S.C. § 415............................................................................................. 5, 22, 24

28 U.S.C. § 1291...................................................................................................... vi

28 U.S.C. § 1331...................................................................................................... vi

28 U.S.C. §1361.......................................................................................................25

OTHER AUTHORITIES

1955 U.S.C.C.A.N. 2691, 2693–94 ...........................................................................5

REGULATIONS

25 C.F.R. Part 162................................................................................. 5, 6, 7, 26, 28

25 C.F.R. § 162.101 .................................................................................................27

25 C.F.R. § 162.104 ............................................................................................ 5, 27

25 C.F.R. § 162.106 ...................................................................................................5

25 C.F.R. § 162.108 ............................................................................................ 5, 28

25 C.F.R. § 162.109 .................................................................................................19

25 C.F.R. § 162.110 ............................................................................ 5, 6, 13, 22, 26

25 C.F.R. § 162.619 ...................................................................................................6

66 Fed. Reg. 7068, 7080 (Jan. 22, 2001) .................................................................28

66 Fed. Reg. 7068, 7081 (Jan. 22, 2001) .................................................................28

vii

STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 granting

jurisdiction to review the final order of the District Court disposing of all claims in

this case. The District Court had subject matter jurisdiction to hear the case under

28 U.S.C. § 1331 providing for review of federal questions. Plaintiff-Intervenor

Appellant LaSalle Bank Midwest National Association timely filed its Notice of

Appeal on November 12, 2009.

1

STATEMENT OF THE ISSUES

Did the District Court err when it found that it could not grant relief to

Hollywood Mobile Estates Limited, which has been illegally ejected from property

validly leased from the Seminole Tribe of Florida under a federal program

administered by the U.S. Department of the Interior?

STATEMENT OF THE CASE

Bank of America, N.A., is the successor by merger to LaSalle Bank Midwest

National Association1 (the “Bank”). The Bank appeals from the District Court’s

August 24, 2009, Order Granting Defendants’ Motion to Dismiss and Denying

Plaintiff’s Motions for Leave to File Amended/Supplemental Complaint, and the

District Court’s Order of October 13, 2009, denying HME’s Motion for Rehearing

and to Amend Judgment.

(i) Course of Proceeding and Disposition Below

Hollywood Mobile Estates Limited (“HME”) filed suit on July 8, 2008,

against the Seminole Tribe of Florida (the “Tribe”), the U.S. Department of the

Interior (“Interior”), and the Secretary of the Interior (collectively the “Federal

Defendants”) to prevent its ouster from premises it leased from the Tribe on the 1 LaSalle Bank Midwest National Association was the successor in interest to

Michigan National Bank-Oakland, the holder of the leasehold mortgage given by Hollywood Mobile Estates. LaSalle Bank Midwest National Association is now owned by Bank of America Corporation, and its charter merged into the charter of Bank of America, N.A. on or about October 17, 2008. [Doc 48-11 – Pg 1, n.1]

2

Tribe’s Reservation near Hollywood, Florida. [Doc 1]. On July 15, 2008, HME

moved for a preliminary injunction to prevent the Tribe from ejecting it from the

premises. [Doc 5]. On that same day, however, the Tribe, purporting to cancel the

Lease, ejected HME. The Tribe then, on July 21st, asked Interior to cancel or

terminate the Lease. [Doc 63 – Pg 2]. On July 24, 2009, the Tribe moved to be

dismissed from the suit on grounds that it had not waived its sovereign immunity.

[Doc 24]. HME’s motion for a preliminary injunction was denied on July 28,

2008, and HME voluntarily dismissed the Tribe as a defendant on August 18,

2008. [Doc 26; Doc 30].

The Bank, as the leasehold mortgagee, intervened in the case on Sept. 25,

2008. [Doc 38]. Interior began an administrative review of the Tribe’s allegations

of Lease breaches and defaults on Sept. 26, 2008, during which HME and the Bank

both renewed their requests to Interior for restoration of HME to the premises, an

escrow of rents, and for an accounting of the rents the Tribe collected and kept.

[Doc 40-2 – Pg 5–6].

The Federal Defendants moved on Oct. 3, 2008, to dismiss the Complaint.

[Doc 39]. HME sought leave on Oct. 20th, to file an amended and supplemental

complaint to add the Bureau of Indian Affairs (“BIA”) Regional Director Franklin

Keel as a party. [Doc 40]. The Federal Defendants opposed this motion and

renewed their motion to dismiss. [Doc 43]. HME brought a second motion for

3

leave to file an amended and supplemental complaint to add claims under the

Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (“APA”) [Doc 48].

Interior, meanwhile, concluded its review of the Lease and determined on

Dec. 4, 2008, that HME was not in breach or default of the Lease. [Doc 55].

Interior, however, took no further action after concluding there was no breach; it

did not reinstate possession or implement its decision finding that HME had a valid

and effective Lease. The District Court denied HME’s motion to file an amended

and supplemental complaint on August 24, 2009, dismissing the suit with

prejudice, and on October 14th, it denied HME’s motion for rehearing and to

amend the judgment. [Doc 63; Doc 69]. HME and the Bank timely appealed.

(ii) Statement of the Facts

(a) The Parties’ Interests

HME is the successor to a Lease of property located on the Tribe’s

Reservation near Hollywood, Florida, on which HME operates a mobile home

park. [Doc 1 – Pg 2]. The Bank holds a leasehold mortgage interest in the property,

as permitted by the Lease, which mortgage was validly approved by the Secretary

of the Interior. [Doc 5-2 – Pg 16; Doc 5-3 – Pg 5; Doc 48-8 – Pg 1].

The Lease provides specific and independent rights to the Bank as the holder

of the leasehold mortgage duly approved by the Secretary of the Interior.

Specifically, Section 18 of the Lease requires Interior to provide written notice of

4

default to both HME and the Bank, after which HME and the Bank are entitled to

60 days to cure any non-payment default before remedies in Section 18 may be

exercised. [Doc 5-2 – Pg 23]. In addition, the Bank is entitled to written notice of

any intent to terminate the Lease, with an additional 45 days following receipt of

such notice to cure the alleged default by HME. Id. at 24. Section 18 also provides

that the exercise of any remedies will be made by the Tribe and Interior.2 Id.

It is undisputed that the Bank never received a notice of default from either

Interior or the Tribe, neither the Bank nor HME received 60 days to cure defaults

before the remedy of self-help was exercised, and that the remedy of self-help was

not exercised by both the Secretary and the Tribe as set forth in the Lease. [See

Doc 48-8; Doc 48-11; Doc 55-2 – Pg 5]. HME has another 15 years remaining on

its Lease. [Doc 5-2 – Pg 3 & 5].

2 Section 18 of the Lease states:

. . . and if such breach shall continue uncured for a period of sixty (60) days after written notice thereof by the Secretary to encumbrancer and the Lessee, during which sixty (60) day period encumbrancer and the Lessee shall have the privilege of curing such breach, then the Lessor and the Secretary may either: A. Collect, by suit or otherwise, all monies as they become due hereunder, or enforce, by suit or otherwise, Lessee’s compliance with any other provision of this lease, or B. Re-enter the premises and remove all persons and property therefrom, excluding the property belonging to authorized sub-lessees, and either (1) Re-let the premises without terminating this lease, as the agent and for the account of Lessee . . . (2) Terminate this lease at any time . . . .

[Doc 5-2 – Pg 24 (emphasis added)].

5

(b) The Regulatory Regime

The Lease with the Tribe was granted pursuant to a federal statute enacted in

1955 to encourage significant capital investment in and development of tribal lands

by lessees and to generate income for tribes and tribal members. See 25 U.S.C.

§ 415 (Supp. 2008); H.R. Rep. No. 83-1093, at 3–4 (1955), as reprinted in 1955

U.S.C.C.A.N. 2691, 2693–94 (Statement of Asst. Sec. of Interior). Regulations

prescribed by the Secretary of the Interior are applicable to the Lease, and are now

contained in 25 C.F.R. Part 162. See 25 U.S.C. § 415(a) (all leases and renewals

shall be made under such terms and regulations as may be prescribed by the

Secretary of the Interior). Part 162 sets forth the authorities, policies and

procedures the BIA uses to grant, approve, administer, and enforce ground leases

and permits on Indian land. Section 162.108 details the BIA’s responsibilities in

administering and enforcing leases, which includes taking immediate action to

recover possession from trespassers operating without a lease. Section 162.104

explains when a lease is needed to authorize possession of Indian lands, and

§ 162.106 sets forth what BIA must do if possession is taken without an approved

lease. Section 162.110 states that “[e]xcept insofar as these regulations provide for

the granting, approval, or enforcement of leases and permits” the regulations that

authorize or require Interior to take certain actions will extend to any tribe or tribal

organization that is administering specific programs or providing specific services

6

under a contract or self-governance compact entered into under the Indian Self-

Determination and Education Assistance Act, 25 U.S.C. § 450f et seq. See 25

C.F.R. § 162.110 (emphasis added). The Tribe has such a contract. [Doc 48-6].

Interior conceded below in its statement of the facts responding to the

preliminary injunction, that while the Tribe administers realty functions of the BIA

through a self-governance contract, it lacks the power to approve or enforce leases.

[See Doc 11 – Pg 3]. Instead, the enforcement of leases is a non-delegable function

of the Secretary of the Interior. Id. The Tribe’s only authority under the contract

is to “monitor” leases for compliance and recommend corrective action. Id. at 5.

The Federal Defendants described the regulatory process in their statement

of facts, noting that 25 C.F.R. Part 162 required the BIA to determine whether the

Lease should be cancelled, whether HME should be afforded additional time to

cure any defaults, or whether to consider other remedies available under the Lease,

in accordance with 25 C.F.R. § 162.619. [Doc 11 – Pg 5]. If the BIA determines

that the Lease should be cancelled, the decision could be appealed to the Interior

Board of Indian Appeals. Id. at 6. The Federal Defendants then argued:

If, however after thorough inquiry into the matter, the Bureau concludes that [HME] has breached the lease, the Bureau is fully prepared to outline the nature of the breach and the required cure. Upon failure to cure, the Bureau then would initiate lease cancellation proceedings, carefully observing due process rights of [HME]. On the other hand, if after investigation it is determined the lease has not been breached, the

7

Bureau would be prepared to use its authority to return the parties to the status quo ante. Selection of either of these two courses of action (or some appropriate variant) must await completion of an investigation of the Tribe’s allegation of breach and formulation of a decision by the Bureau.

[Doc 11 – Pg 6–7 (emphasis added)]. The Federal Defendants concluded by

asking the District Court to “maintain the status quo ante until such time as the

Bureau has issued its decision and the parties have had the opportunity to exercise

their administrative remedies.” [Doc 11 – Pg 7].

The Federal Defendants flatly asserted in argument of their Motion to

Dismiss filed on October 3, 2008, that “any decision of the Regional Director” of

the Bureau “would address possession.” [Doc 39 – Pg 8–9]. In describing the

regulatory process in their renewed Motion to Dismiss, the Federal Defendants

again stated that they had authority under the regulations to seek additional facts,

invite the parties to make presentations, and do anything necessary to safeguard the

property and “protect the procedural rights of the affected parties” under 25 C.F.R.

Part 162. [Doc 44 – Pg 5]. The Federal Defendants urged the District Court to deny

HME’s request for injunctive relief because the request “presumed” the BIA

“would not exercise its administrative authority over trust lands in a manner fair to

[HME].” Id. at 6. HME’s suit was “premature”, the Federal Defendants argued,

and would stop the administrative process before the BIA had an opportunity to

8

make a decision and “implement the decision subject to the parties right of

appeal.” [Doc 44 – Pg 6 (emphasis added)].

(c) The Secretary’s Decision

The Regional Director of the BIA issued its decision on December 4, 2008,

finding that HME did not breach the Lease and declining to cancel or terminate the

Lease as requested by the Tribe. [Doc 55-2 – Pg 1]. Interior considered and

rejected all of the Tribe’s allegations of breach and default, specifically

determining that the Tribe’s re-entry prevented HME from exercising its rights

under the Lease and curing any alleged defects, and concluding that it “would be

manifestly unfair to HME to cancel a lease for an alleged breach it was rendered

powerless by the Tribe to cure.” Id. at p. 5. The Regional Director’s decision

concluded that the Lease would not be cancelled by the Bureau, but it did not

address a remedy for HME for its ejectment, nor did it make any attempt to

implement the decision in any way. Id.

One day after the BIA found that HME was improperly ousted and had not

breached the Lease, Interior again moved to dismiss HME’s suit, arguing that it

could not be ordered by the District Court to restore HME to possession because

such an action involved the exercise of Interior’s discretion. [Doc 55 – Pg 6].

Contrary to its earlier concession, the Federal Defendants’ changed their position

to now argue that Interior could not be compelled to restore HME to possession or

9

otherwise consider or impose a remedy consistent with the Regional Director’s

finding even after completion of the administrative process and judicial review. Id.

(d) The District Court’s Orders

In its order dismissing the case with prejudice, the District Court held that

the Complaint for injunctive relief had to be viewed as one requesting mandamus

relief, because to restore HME to the premises, it would have to order the Federal

Defendants to “go further” in HME’s favor than the Federal Defendants had gone

in the administrative proceedings. [Doc 63 – Pg 6–7]. The District Court opined

that ordering the Federal Defendants to “actively enforce” the Lease would require

removal of the Tribe and must therefore be analyzed under the law of mandamus.

Id. at 7. While the District Court found HME to have a clear right to possession of

the premises, it declined to find a clear duty on the part of the Federal Defendants

to act consequent to HME’s right, stating “how the Department chooses to deal

with the situation is by no means ministerial” and therefore not subject to a District

Court’s order. Id. at p. 9.

The District Court next declined HME’s motion for rehearing and

amendment of the judgment, stating that “[w]hether this Court thinks that the

[Interior’s] actions have been equitable or correct is not germane to this decision.”

[Doc 69 – Pg 2]. Although acknowledging that Interior “has done nothing” to

implement its decision, and noting that Interior was now apparently unwilling to do

10

anything to damage its relationship with the Tribe, the District Court concluded

that there was no clear duty for Interior to remove the Tribe and thus, no

justification for it to “tell the executive branch of government how to exercise [its]

discretion, or how to exercise their duty to act.” [Doc 69 – Pg 3]. The instant

Complaint, however, seeks review of Interior’s failure to enforce the Lease or

respond to HME’s requests for possession, and the escrowing of rents.

Notwithstanding Interior’s finding that the Lease was valid and HME was

not in default, the Tribe did not surrender the premises and Interior never took its

promised steps to “implement” its decision and restore the parties to the status quo

ante. The Tribe appealed to the Interior Board of Indian Appeals the agency’s

finding that the Lease is valid, but a decision has not yet been issued. HME

remains out of possession, and the Tribe continues to operate the mobile home

park and collect rents, without any accounting to Interior, HME, or the Bank.

(iii) Standard of Review

A motion to dismiss under Rule 12(b)(6) for failure to state a claim is an

issue reviewed de novo. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th

Cir. 2006). The factual allegations in the complaint must be accepted and

construed in the light most favorable to the plaintiff. Id. (citing Hill v. White, 321

F.3d 1334, 1335 (11th Cir. 2003)). Dismissal is only appropriate where it is “clear

the plaintiff can prove no set of facts in support of the claims in the complaint.” Id.

11

(citing Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d

1171, 1174 (11th Cir. 1993)). In this case, this Court must review the District

Court’s determination that HME is not entitled to relief from Interior in light of

Interior’s determination that HME has not breached the Lease.

A district court’s ruling on leave to amend is generally reviewed for abuse of

discretion; however, when a court denies a plaintiff leave to amend a complaint

due to futility, the denial is reviewed de novo because “the court is making the

legal conclusion that the complaint, as amended, would necessarily fail.” St.

Charles Foods, Inc., v. America’s Favorite Chicken Co., 198 F.3d 815, 822 (11th

Cir. 1999); Florida Evergreen Foliage v. E.I. Dupont De Nemours and Co., 470

F.3d 1036, 1040 (11th Cir. 2006). The District Court determined that HME’s

proposed amended and supplemental complaint adding claims under the APA

would fail, as a matter of law, because it seeks the same relief as the original

Complaint—injunctive relief against Interior consistent with and supported by the

agency’s finding that HME had not breached its Lease.

When reviewing a district court’s disposition of a motion for rehearing after

final judgment, the decision will be overturned on appeal for an abuse of

discretion. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d

800, 806 (11th Cir. 1993); American Home Assurance Co. v. Glenn Estess &

Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985). The term “abuse of

12

discretion” means “no more than that the court has clearly erred.” Conway v.

Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 367 n. 9 (5th 1980).

SUMMARY OF ARGUMENT

The District Court erred as a matter of law in holding that it could grant no

relief to HME. First, it is axiomatic that federal courts have clear authority to

entertain suits for equitable relief and fashion appropriate remedies. HME’s

Complaint, as originally filed, and as amended and supplemented, requested

equitable declaratory and injunctive relief. The District Court was empowered to

enjoin Interior because, as a federal agency, it can be ordered to exercise its

discretion, to cease abuse of its discretion, to follow its own regulations, and to

modify unlawful interpretations of its regulations. Were it not so, a federal agency

could evade or frustrate judicial review simply by raising either mandamus or

institutional defenses, when the law in fact sets forth a presumption that agency

conduct is reviewable.

Second, even if the District Court concluded that injunctive relief was

inappropriate in this case, it still had authority to remand the case to Interior for

proceedings consistent with both its and Interior’s own finding that HME had a

clear right to possession of the premises under the Lease. Interior, for its part,

could have then escrowed or interdicted rents, as HME and the Bank repeatedly

requested, leaving the Tribe in possession.

13

Third, HME sought to bring a claim under the APA for injunctive relief.

[Doc 49 – Pg 10]. Even if one assumes the law of mandamus to be the proper

analysis (which the Bank disputes), the District Court still erred in dismissing the

Complaint and finding that no law or regulation required Interior to act. Interior

already represented as such to the court that it has a non-delegable duty under the

law to enforce the Lease. In addition, Interior has a duty to eject trespassers—

those in possession without legal authority—even when the trespasser is an Indian

landowner. After determining the Lease was valid, Interior was obligated by its

own regulations to remediate. While HME unquestionably requested reinstatement,

the law of mandamus permits the District Court to order Interior to remediate

without necessarily directing “how” the agency should do so.

Nothing in the trust relationship between Interior and the Tribe obviates

Interior’s overarching duty to follow its own regulations and the express intent of

Congress, which enacted the leasing regime to encourage substantial capital

investment by non-tribal parties in leased tribal land. No one disputes that

Congress’ requirement for the Secretary to approve tribal leases is consistent with

the federal government’s trust duty to tribes, as some courts have found. Thus, the

duty to grant and approve leases cannot be delegated to a tribe, as set forth in 25

C.F.R. § 162.110, nor can the Secretary delegate to the tribes its duty to enforce

leases, since a careful balancing of interests of tribal and non-tribal parties is

14

required to effectuate Congressional intent to encourage investment and insure fair

treatment of all parties.

If the duty of enforcement is to mean anything, it must mean that Interior

cannot stand idly by while the Tribe breaches the uncontroverted terms of a lease;

breaches the Tribe’s own self-governance contract with Interior; and intercepts,

without any accounting, the rents paid by subtenants that are lawfully owed to

HME. It cannot mean, as the District Court suggested, that Interior may only

exercise its regulatory authority to protect tribal interests.3 [Doc 69 – Pg 2]. The

Tribe’s summary ejectment of HME is tantamount to cancellation of the Lease

where Interior will not even respond to a request that it escrow rents the Tribe has

kept since July 2008—some 17 months now—with another 15 years remaining on

the Lease.

ARGUMENT

I. THE COURT HAS AUTHORITY TO GRANT RELIEF TO HME.

The District Court’s Order acknowledges that HME sought equitable relief,

first in HME’s original Complaint to prevent its unlawful ejectment, and next in its

3 According to the lower court, “[i]f tribes have sovergn (sic) immunity,

except for limited circumstances where only the Department of Interior can intervene, and if the Department will only intervene to protect the rights of the Tribe, then non-Indian entities should be very wary of entering into contracts that will be enforced only against them.” This analysis is illogical because it directly contradicts the very purpose and intent of the regulatory scheme, which is to encourage investment in the tribes.

15

amended and supplemental complaints to secure its rights under the Lease and the

federal regulatory framework. [Doc 1 – Pg 5; Doc 40-2 – Pg 9; Doc 49 – Pg 10].

The District Court’s conclusion that it must dismiss HME’s suit because it lacked

authority to grant relief, however, erred as a matter of law. First, the District Court

has authority to compel Interior to exercise its discretion, review the exercise of

discretion for abuse, and compel adherence to the agency’s own regulations.

Second, it could have provided injunctive relief to HME without telling Interior

how or what decision to make. An order directing Interior to exercise its

discretion, consider relevant factors, or provide a reasoned interpretation of its

regulations consistent with Congress’ intent in enacting the leasing regime all

would have been within the District Court’s authority and supported by law.

The District Court erred when it found it lacked the power to provide any

relief for HME’s claims. The court has authority to tailor relief to the exigencies

of the case and could have, at the very least, remanded the matter to the agency, as

the Bank requested. [Doc 50 – Pg 4]. Recall that Interior already represented to

the court that: (1) its decision would address possession; (2) if it found the Lease

had not been breached it would implement its decision; and (3) it had the authority

to call for presentations from the parties, gather additional facts, and “protect the

procedural rights of the parties.” [Doc 39 – Pg 8–9; Doc 44 – Pg 6; Doc 44 – Pg 5].

In spite of those representations, however, Interior’s decision (1) did not address

16

possession; (2) found the Lease to not have been breached but failed to implement

that decision in any way; and (3) did not take any action to “protect the procedural

rights of the parties.” In this case, the District Court could have held Interior to its

word and remanded to Interior for further proceedings consistent with its own

finding that HME had a clear right to possession of the premises. Dismissal of

HME’s suit with prejudice on grounds that HME was not entitled to relief was

unsupported by the law, unwarranted considering the equities of the case, and

should, therefore, be reversed.

A. The Court Erred By Applying The Mandamus Standard.

The District Court erred by applying the mandamus standard to the case

rather than analyzing HME’s claims under a motion to dismiss standard for causes

of action brought under the APA seeking injunctive relief. The APA sets forth a

presumption of reviewability and expressly permits a party to bring a claim for

injunctive relief. See Gallo v. Mathews, 538 F.2d 1148, 1151 (5th Cir. 1976); 5

U.S.C. § 706. Even preliminary relief may be had under the statutory framework.

5 U.S.C. § 705.

Courts have recognized that under the modern administrative law

framework, a claim for injunctive relief should be evaluated under the APA. See

Ssab North Am. Div. v. U.S. Bureau of Customs et al., 571 F. Supp.2d 1347, 1350

(Ct. Int’l Trade 2008) (finding petitioner’s writ for mandamus relief was

17

inapplicable and analyzing complaint instead as one for injunctive relief under

APA) (quoting 3 Charles H. Koch, Jr. ADMINISTRATIVE LAW AND PRACTICE

§ 8.20[4] (2d ed. 2008) (“mandamus should be and generally has been replaced in

modern administrative law by more flexible and better designed forms [of action]

and remedies”)); see also Secora v. Fox, 747 F. Supp. 406, 407–08 (S.D. Ohio

1989) (court need not consider question of its mandamus jurisdiction since all of

the equitable relief sought by the plaintiff could be granted by way of mandatory

injunction under the APA). In actuality, the existence of a remedy under the APA

technically precludes an alternative request for a writ of mandamus. See Mt.

Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997) (granting

mandatory injunction).

A court should analyze the case first under the APA and only apply

mandamus standards if the act does not provide a remedy. See Smilde v. Herman,

201 F.3d 449, Case No. 99-1217, 1999 WL 1243081 at *3 (10th Cir. Dec. 21,

1999) (reversing dismissal on jurisdictional grounds). Even when a plaintiff seeks

a mandatory injunction under the APA, the court determines whether relief may be

granted using the standard four-factor balancing test for injunctions. See Ssab

North Am. Div., 571 F. Supp.2d at 1350.4

4 The District Court’s Order points to two cases that state if a plaintiff seeks a

mandatory injunction under the APA that does not require the exercise of judgment or discretion, the principles and standards of mandamus

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Courts issue mandatory injunctions compelling government action, even

when administrative proceedings are pending, where important rights are at issue.

See Fitzgerald v. Hampton, 467 F.2d 755, 769 (D.C. Cir. 1972) (affirming

injunction compelling government to hold open hearing on employee’s appeal of

his dismissal); Adams v. Richardson, 480 F.2d 1159, 1163 (D.C. Cir. 1973)

(agency’s consistent failure to exercise enforcement responsibilities is a dereliction

of duty reviewable and subject to injunctive power of courts); Gonzalez v.

Freeman, 334 F.2d 570, 574–75 (D.C. Cir. 1964) (finding an “allegation of facts

which reveal an absence of legal authority or basic fairness” in government’s

conduct is justiciable and granting summary judgment in suit for declaratory and

injunctive relief). The government also may be compelled to administer a program

in conformance with Congressional policy. See N.A.A.C.P. v. Sec’y of Hous. and

Urban Dev., 817 F.2d 149, 160–61 (1st Cir. 1987) (vacating dismissal of suit

brought for failure to administer programs in furtherance of Congressional policies

and remanding to agency for further proceedings).

jurisdiction are applicable. However, the weight of authority simply leads to a different conclusion. As discussed above, other courts have found that the mandamus standard should only be used, if at all, where the APA does not provide a remedy. Since the APA expressly provides for mandatory and prohibitory injunctive relief, as well as a remand to the agency, HME’s claims should not be analyzed using mandamus. Additionally, the plaintiffs in each of the District Court’s two cited cases requested that the court issue a writ of mandamus; however, in this case, HME sought injunctive relief under the APA. [See Doc 49 – Pg 2 (citing 5 U.S.C. §§ 702-706)].

19

The District Court erred when it determined that the Complaint could only

be redressed by the application of a mandamus order telling the executive branch

“how to exercise their discretion, or how to exercise their duty to act.” [Doc 63 –

Pg 7; Doc 69 – Pgs 2–3]. As the cases above show, courts may, and not

infrequently do enjoin federal agencies.5 Such an injunction may prohibit

government conduct, such as an order directing the Forest Service from blocking a

landowner access to his property through Forest Service land. See, e.g., Nelson v.

United States, 64 F.Supp.2d 1318, 1326 (N.D. Ga. 1999). Alternatively, the

injunction may compel action, such as an order enjoining the Postal Service to re-

solicit bids. See, e.g., Asia Pacific Airlines v. U.S., 68 Fed. Cl. 8, 25 & 28 (2005)

(applying four-factor test for injunctions).

After finding that HME had a clear right to possession of the premises, the

District Court had the authority to grant prohibitory injunctive relief or order

Interior to escrow the rents until it determined a course of action. Accordingly,

dismissal of the Complaint seeking injunctive relief with prejudice on grounds that

mandamus relief was not available was reversible legal error.

5 Nothing in the trust relationship between the Tribe and the Federal

Defendants obviates the applicability of these principles of federal law to this case. In fact, the regulations expressly state that leases granted or approved under Part 162 are subject to federal laws of general applicability. See 25 C.F.R. § 162.109.

20

B. The Court May Set Aside Agency Action That Is An Abuse Of Discretion Or May Order An Agency To Exercise Its Discretion.

As the First Circuit Court of Appeals noted in N.A.A.C.P., the APA permits

a court to set aside an agency’s unlawful practice if that practice is an abuse of the

agency’s discretion. 817 F.2d at 160. “Set aside” need not be interpreted narrowly;

where a court finds unlawful agency behavior, it may tailor its remedy to the

occasion. Id. (holding that court is empowered to order a remedy either for an act

or a related omission) (citing Indiana & Michigan Elec. Co. v. Fed. Power

Comm’n, 502 F.2d 336, 346 (D.C. Cir. 1974) (“[W]hile the court must act within

the bounds of the statute and without intruding upon the administrative province, it

may adjust its relief to the exigencies of the case in accordance with the equitable

principles governing judicial action.”)).

A court also has authority to compel an agency to exercise its discretion

where it has obviously failed or refused to do so. Id. at 159 (citing Mastrapasqua

v. Shaughnessy, 180 F.2d 999, 1002 (2d Cir. 1950) (ordering INS to exercise

statutory discretion with respect to petition for suspension of deportation order

rather than arbitrarily denying petition)); State of Iowa ex rel Miller v. Block, 771

F.2d 347, 352 (8th Cir. 1985) (court can enforce the clear duty of agency to

promulgate regulations that carry out the intent of Congress).

Given this authority, it was error for the District Court to conclude that it

could provide no relief to HME. Even if it could not tell Interior “how” to exercise

21

its discretion or “how” to exercise a duty to act, it could have, and should have,

told Interior that it had to exercise its discretion or found that Interior had abused

its discretion by failing to take any action to implement its decision or otherwise

address the issues of possession and escrowing of rents. Where an agency is given

authority and discretion to act, it may not delay a decision or refuse to make a

decision with impunity. See Environmental Defense Fund v. Hardin, 428 F.2d

1093, 1099 (D.C. Cir. 1970) (when agency inaction has precisely the same impact

on rights of parties as denial of relief, agency cannot preclude judicial review by

casting its decision as inaction rather than an order denying relief). Such a course

of action would frustrate the principle of presumptive judicial review of agency

conduct, since there would be no decision to review.

C. The Court May Order The Agency To Comply With Its Own Regulations.

When a case involves allegations that the agency has failed to follow its own

regulations, a court may hear the dispute and order the agency to comply with its

regulations. See Webster v. Doe, 486 U.S. 592, 602 n.7, 108 S. Ct. 2047, 2053 n.7

(1988) (federal courts may review an agency’s actions to ensure its own

regulations have been followed). When hearing such a case, traditional equitable

principles balancing public and private interests control the grant of declaratory or

injunctive relief. Id. at 605, 108 S. Ct. at 1054.

22

Here, the federal regulations explicitly provide that only Interior may

enforce a lease. See 25 C.F.R. § 162.110. If the Secretary did not retain exclusive

authority to enforce leases, then the tribal party to the lease administering the realty

functions of Interior through a contract would have sole power to determine

compliance and impose remedies under the lease. As acknowledged in Yavapai-

Prescott Indian Tribe v. Watt, 707 F.2d 1072 (9th Cir. 1983), the tribe’s unilateral

power to terminate a lease would depress the value of the lease for the lessee and

discourage improvements of tribal land. Id. at 1075. Placing unilateral power in

the tribe would, therefore, completely frustrate Congress’ intent when it enacted 25

U.S.C. § 415, the Indian Long-Term Leasing Act.

Nothing in Interior’s trust relationship with tribes supports Interior’s

interpretation of the leasing regulations. As the Federal Circuit found in United

Nuclear Corp. v. United States, 912 F.2d 1432, 1437 (1990), Interior’s promotion

of Indian self-determination only goes so far:

It is difficult to understand, however, how encouraging the Indians not to live up to their contractual obligations, which they entered into freely and with the Secretary’s approval, could be said to encourage self-determination. To the contrary, one would think that the best way to make the Indians more responsible citizens would be to require them to live up to their contractual commitments.

Id. at 1437.

23

In this case, the District Court had ample authority to enjoin Interior from

violating its own regulations, and thus its dismissal of HME’s Complaint on

grounds it lacked such authority to grant any relief was in error.

D. The Court May Remand A Case For Further Proceedings Consistent With Its Opinion.

A court is empowered to remand a dispute to the agency for further

proceedings or with instructions when the agency has failed to provide a

reasonable explanation for its conduct or has failed to consider relevant factors.

See American Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 7 (D.C. Cir. 1987) (remand

to agency for further consideration where Secretary’s explanation of denial to

institute rulemaking and interpretation of statute and regulations were

unreasonable); Rhode Island Higher Educ. Assistance Auth. v. Sec’y U.S. Dept. of

Educ., 929 F.2d 844, 856 (1st Cir. 1991) (finding agency had duty to consider

party’s request to achieve fairness and effectuate congressional intent and

remanding where agency failed to consider party’s requests).

The District Court erred when it concluded that it could grant no relief for

HME’s claims. The court could have remanded the case to the agency with

instructions to, in light of it’s and the agency’s finding that HME had a clear right

to possession, address a remedy or consider HME’s and the Bank’s prior requests

for an accounting and escrowing of rents. Remand on the facts of this case would

be warranted to achieve fairness, address the requests of HME and the Bank, which

24

Interior never responded to, and effectuate the intent of Congress that the leasing

scheme encourage investment by non-tribal parties in tribal land. See, e.g., Rhode

Island, 929 F.2d at 856 (remanding to agency to enable it to consider factors not

addressed to achieve fairness and effectuate congressional intent). Certainly

Interior’s conduct in this case has done nothing but needlessly frustrate such

Congressional purposes.6

II. INTERIOR HAS A NON-DELEGABLE DUTY TO ENFORCE THE LEASE.

Mandamus relief is appropriate when “(1) the plaintiff has a clear right to the

relief requested; (2) the defendant has a clear duty to act; and (3) ‘no other

adequate remedy is available.’” Cash v. Barnhart, 327 F.3d 1252, 1259 (11th Cir.

2003) (quoting Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980)). Although

the issuance of a writ of mandamus is a “legal remedy, it is largely controlled by

equitable principles and its issuance is a matter of judicial discretion.” Id. at 1257–

6 The District Court’s Order notes that the “purpose of § 415(a) is for the

protection of Native American interests.” However, as the legislative history shows, Congress intended to encourage and remove barriers to non-tribal investment in tribal land when it enacted 25 U.S.C. § 415. None of the cases cited by the District Court, which focus exclusively on Interior’s authority to approve leases involving Indian lands, address Interior’s enforcement or other management duties. In this case, since Interior has not fulfilled its responsibilities to manage and enforce the existing Lease as contemplated by the statute, Interior’s actions will have the deleterious effect of undermining Congress’ purpose. See, e.g. United Nuclear Corp., 912 F.2d at 1437.

25

58 (citing Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). A writ of

mandamus under 28 U.S.C. §1361 “permits flexibility in remedy, so that injunctive

and declaratory relief are not inconsistent with its jurisdictional basis.” Crawford

v. Cushman, 531 F.2d 1114, 1126 n.15 (2d Cir. 1976) (citing Burnett v. Tolson,

474 F.2d 877, 883 n.10 (4th Cir. 1973)).

The District Court’s Order dismissing HME’s Complaint with prejudice held

that HME did not show any authority that imposes a “clear duty upon the

Defendants to remove the Tribe from the premises and allow HME to retake

possession.” [Doc 63 – Pg 9]. Assuming arguendo that mandamus standards even

applied, the dismissal was erroneous because Interior does have a clear duty to

enforce the Lease, as conceded by Interior’s own representations to the court.

Mandamus is present only when a “clear, plainly defined, and preemptory

duty on the federal defendant is shown.” Save the Dunes Council v. Alexander,

584 F.2d 158, 162 (7th Cir. 1978). Mandamus is also employed “to compel action,

when refused, in matters involving judgment or discretion, but not to direct the

exercise of discretion in a particular way.” Flynn v. Shultz, 748 F.2d 1186, 1194

(7th Cir. 1984). In this case, Interior has chosen to take no action, and indeed has

argued that it is prevented from acting, even though it found the Tribe to be

unlawfully remaining in possession of the property. [Doc 67 – Pg 4–5]. Interior

conceded that it has a clear, non-delegable duty to enforce leases, and therefore

26

mandamus relief would be proper. See Patel v. Reno, 134 F.3d 929, 931–32 (9th

Cir. 1998) (stating mandamus jurisdiction exists in a suit challenging the authority

of a government official to take or fail to take action, as opposed to a decision

taken within the official’s discretion).

Interior has a duty to act pursuant to 25 C.F.R. Part 162. When interpreting

whether a duty exists, the language from an entire act should be analyzed. Fallini

v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986) (citing Kokoszka v. Belford, 417

U.S. 642, 650, 94 S. Ct. 2431, 2436 (1974) (when interpreting a statute, a court

must look not only to one clause, but to the entire Act in order to give effect to the

legislative intent)). “The fact that a statute requires construction by . . . the court in

order to determine what duties it creates does not mean that mandamus is not

proper to compel the officer to perform the duty, once it is determined.” Id.

The plain language of 25 C.F.R. § 162.110 places a duty on Interior to grant,

approve, and enforce leases. Everyone would concede that the term “enforcement”

in the regulation certainly includes, without limitation, the cancellation and

termination of leases. However, since “enforcement” is not a defined term, the

plain meaning controls, and thus, would also include re-entry and removal

activities. See, e.g. U.S. v. American Trucking Ass’ns., 310 U.S. 534, 543, 60 S.

Ct. 1059, 1063–64 (1940) (when words are sufficient in and of themselves to

determine the purpose of legislation, courts look to their plain meaning). Interior is

27

obligated to enforce the Lease, and it can be compelled to perform this duty

through a mandamus order without the court actually prescribing how Interior

should exercise its authority.

As part of its enforcement duties, Interior also has a duty to recover

possession from trespassers—those who are in possession without legal authority.

See, e.g., 25 C.F.R. § 162.101 (defining trespass as “an unauthorized possession,

occupancy, or use of Indian land”). To avoid being liable as a trespasser, a lease is

required for one to occupy the property at issue in this case. In the typical

scenario, a trespasser would be a non-tribal party who occupies Indian land without

a valid lease or in breach of a lease. Under that scenario, Interior’s duty under the

regulations require it to eject the trespassing non-tribal party. Were that

trespassing party an Indian, Interior’s duty under the regulatory regime to eject

would still apply, and this is so even where one holds an interest in the land. See

25 C.F.R. § 162.104 (requiring Indian landowner to obtain a lease for possession of

fractionated tribal land in which the Indian landowner holds less than 100 percent

interest). Interior does not argue that in such a case, its trust duty to the first Indian

landowner prohibits it from ejecting the second Indian landowner.

Here, it is the Tribe that is occupying the land without authority because it

conveyed its possessory interest to HME through the Lease—a lease that Interior

has found to be valid and in force. [Doc 55-2]. The regulatory scheme is clear that

28

Interior’s duty to eject trespassers applies regardless of the Indian character of the

trespasser. See, e.g., 66 Fed. Reg. 7068, 7081 (Jan. 22, 2001) (in publication

adopting regulations for 25 U.S.C. § 415, stating “we will treat any possession of

Indian land without a lease as a trespass”). Since Interior has the clear duty, under

25 C.F.R. §162.108(b), to “take immediate action to recover possession from

trespassers operating without a lease, and take other emergency action as needed to

preserve the value of the land,” the lower court had authority to grant mandamus.

Interior accepted the duty to enforce leases on Indian lands. The history

behind 25 C.F.R. Part 162 shows Interior knew of and accepted the duty to lease

and permit enforcement, as well as trespass enforcement. 66 Fed. Reg. 7068, 7080

(Jan. 22, 2001) (stating “[i]n both general lease and permit enforcement, as well as

in trespass enforcement, the final leasing regulations reflect . . . reasonable time

frames in which the BIA will take appropriate enforcement action, and to reduce

the amount of procedural steps necessary for effective enforcement”). This duty

on Interior to enforce leases on Indian lands is not a requirement, nor an

opportunity, for Interior to treat one class of citizens above another.7

7 The trust duty is to ensure that tribes do not get taken advantage of, not so

that tribes can take advantage of others. See, e.g., United Nuclear, 912 F.2d at 1438 (Interior’s conduct constitutes taking of mining company’s property rather than mere exercise of regulatory authority).

29

In summary, mandamus relief is proper in this case because Interior has a

clear, non-delegable duty to enforce the Lease at issue, which may include

removing the Tribe, as trespasser, from the premises or leaving the Tribe in place

but intercepting rents for proper disbursal to HME. [Doc 68 – Pg 5]. “[W]here a

specific duty is assigned by law, and individual rights depend on the performance

of that duty, it seems . . . clear, that the individual who considers himself injured,

has a right to resort to the laws of his country for a remedy.” Gilbert v. Johnson,

490 F.2d 827, 829 & n.5 (5th Cir. 1974). Interior has already determined that

HME is the rightful leaseholder, and thus, HME is entitled to possession. The

District Court was well within its authority to compel Interior to fully discharge its

enforcement duties, and thus, it erred in dismissing HME’s Complaint.

III. THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO REHEAR AND AMEND THE JUDGMENT.

When reviewing a district court’s decision on a motion for rehearing, the

decision will be overturned on appeal if the lower court abused its discretion.

Region 8 Forest Service Timber Purchasers Council, 993 F.2d at 806; American

Home Assurance Co., 763 F.2d at 1238–39. The term “abuse of discretion” means

“no more than that the court has clearly erred.” Conway, 610 F.2d at 367 n.9. “A

court abuses its discretion, however, when it misapplies the law.” Florida Ass’n of

Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health and Rehab. Servs., 225 F.3d

1208, 1218 (11th Cir. 2000) (citing Sun America Corp. v. Sun Life Assur. Co. of

30

Canada, 77 F.3d 1325, 1333 (11th Cir. 1996) (court necessarily abuses its

discretion if it “has applied an incorrect legal standard”)).

The District Court abused its discretion when it denied HME’s motion

because the court applied an incorrect legal standard—mandamus relief—to

HME’s claims. The Complaint, as amended and supplemented, sought to bring a

claim under the APA, which provides ample authority to grant a range of relief,

including either prohibitory and mandatory injunctions, or remand to the agency

with instructions or to consider relevant factors. The District Court’s failure to

consider the full and proper range of relief available under the APA was an abuse

of discretion in light of both Interior’s and the court’s finding that HME was

entitled to possession of the leased premises.

The lower court should have either granted a rehearing or, at the very least,

amended the judgment to remand the case to Interior for it to consider and answer

both HME’s and the Bank’s requests for an accounting or escrowing of rents.

CONCLUSION

For the reasons set forth above, the Bank respectfully requests the Court

reverse the District Court Order of August 24, 2009, dismissing HME’s Complaint

and remand the case to the District Court for the matter to be heard on the merits.

In addition, the Bank respectfully requests the Court instruct the District Court to

grant HME’s motion for leave to amend its Complaint.

31

Dated: December 30, 2009.

Respectfully submitted, /s/ Temple Fett Kearns JOSEPH M. GOLDSTEIN Florida Bar No. 820880 TEMPLE FETT KEARNS Florida Bar No. 0306680 SHUTTS & BOWEN LLP 200 East Broward Boulevard Suite 2100 Fort Lauderdale, Florida 33301 Tel.: (954) 524-5505 Fax: (954) 524-5506 Counsel for Appellant LaSalle Bank

32

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 7,759 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using 14-point Times

New Roman in Microsoft Word.

Dated: December 30, 2009 /s/ Temple Fett Kearns TEMPLE FETT KEARNS Attorney for Appellant LaSalle Bank

33

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

Appellant’s Initial Brief was served via U.S. Mail this 30th day of December,

2009, upon:

Donald A. Orlovsky, Esquire Kamen & Orlovsky, P.A. 1601 Belvedere Road Suite 402 South West Palm Beach, Florida 33405

Anne R. Schultz, Esquire United States Attorney’s Office 99 N.E. 4 Street Suite 512 Miami, Florida 33132

Bruce S. Rogow, Esquire Cynthia E. Gunther, Esquire Bruce S. Rogow, P.A. 500 East Broward Boulevard Suite 1930 Fort Lauderdale, Florida 33394

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John M. Mullin, Esquire Tripp Scott, P.A. 110 S.E. 6 Street 15th Floor Fort Lauderdale, Florida 33301

/s/ Temple Fett Kearns

TEMPLE FETT KEARNS Attorney for Appellant LaSalle Bank

FTLDOCS 5496969 1