FILED NOT FOR PUBLICATION FEB 27 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINDY ALEGRE; FRANK ALEGRE; No. 22-55070 MICHAEL ALEGRE; YOLANDA ALEGRE; CHRISTOPHER D.C. No. ALVARADO; ERIC ALVARADO; 3:16-cv-02442-AJB-MSB JACOB ALVARADO; JULIAN ALVARADO; MATTHEW ALVARADO; NICK ALVARADO; ROBERT MEMORANDUM* ALVARADO; TAMMY ALVARADO; TIANI ALVARADO; TONY ALVARADO; VINCENT ALVARADO; KRISTY ANAYA; CARLOS BLANCO; ERNESTO BLANCO; JUAN BLANCO; RAY BLANCO; SYLVIA BLANCO; REMEDIOS BLANCO; THERESA BLANCO-MURILLO; VALERIE BOYLE; MELVIN CANNON; ANTHONY CHALOUX; NATHAN CHALOUX; SHONTA CHALOUX; APRIL CHAVEZ; LISA CHAVEZ; JULIAN CLAY; BRUCE ROY CLAY; ANDREA CONTRERAS; CHARLES CONTRERAS; MICHAEL CONTRERAS; PAUL CONTRERAS IV; RITA CONTRERAS; ROCHELLE CONTRERAS; ROSEANNE CONTRERA; RUDY CONTRERAS, Jr.; ERIK DELGADO; ROSE DELGADO; FELICIA DURKIN; SHIANNE ELAM;

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. WYATT ELAM; RUBEN GONZALEZ, Jr.; JOHN HUGHES; JUAN LUCERO; VIRGIL LUCERO; AMBER MAJEL; ANGELINA MARTINEZ; HILARIO MARTINEZ; LINDA MARTINEZ- VANDERVERF; PAUL MARTINEZ; SARAH MENDOZA; JAMIE MILLER; JEFFREY MILLER; DANIEL MORALES, Jr.; FREDERICK MURILLO III; JOSEPH MURILLO; KIM MURILLO; PAUL V. MURILLO; THOMAS MURILLO; BEATRICE OCHOA; ROBERT OCHOA; THERESA OCHOA; YOLANDA OCHOA; LENA ORTEGA; LEVON PALMER; ANDRE PEART; CELESTE PEART; DENISE PEART; EVETTE PEART; JAMIE PEART; JON RENEE PEART; RITA PEART; SARAH PEART; TISHA PEART; TONYA PEART; ANITA PEREZ; DOMINIQUE PEREZ; JERMAINE PEREZ; ORTHIUS PEREZ; BRIDGETTE VILLALOBOS; CATHI VILLALOBOS-CAMERON; CORRINE VILLALOBOS-BIGGS; JELENA VILLALOBOS-BRYAN; JESUS VILLALOBOS; JOSEPH VILLALOBOS; PETER VILLALOBOS; SHAUN VILLALOBOS; GERARD VILLALPANDO; RUBY ZWICKER,

Plaintiffs-Appellants,

v.

SALLY JEWELL, Secretary of the Department of Interior, United States of

2 America, in her official capacity; LAWRENCE ROBERTS, Assistant Secretary of the Department of Interior - Indian Affairs, United States of America, in his official capacity; MICHAEL BLACK, Director of the Bureau of Indian Affairs of Department of Interior - United States of America, in his official capacity; UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; DOES, 1 through 25,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted February 7, 2023 Pasadena, California

Before: BOGGS,** IKUTA, and DESAI, Circuit Judges.

Certain descendants of enrolled members of the San Pasqual Band

(collectively, Plaintiffs) appeal the district court’s grant of summary judgment in

favor of the Bureau of Indian Affairs (BIA). The district court held that Plaintiffs’

claims were barred by the statute of limitations. 28 U.S.C. § 2401(a). We have

jurisdiction under 28 U.S.C. § 1291.

** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 3 Plaintiffs brought claims under the Administrative Procedure Act (APA), 5

U.S.C. §§ 551–559, to compel the BIA to reconsider their applications for

enrollment in the San Pasqual Band. Plaintiffs’ fourth amended complaint is based

on events in 2005, when: (1) The Band’s enrollment committee made a formal

request for the BIA to correct the recorded blood degree of Modesta Martinez

Contreras (Modesta Contreras) to 4/4 degree Indian blood; and (2) Plaintiffs

submitted 150 applications for enrollment from Modesta Contreras’s descendants,

whose eligibility for enrollment depended on whether the BIA corrected her blood

degree. In a letter dated April 7, 2006, Michael Olsen, the Acting Principal Deputy

Assistant Secretary of the Interior, exercising authority delegated by the Secretary

of the Interior, denied the request to correct Modesta Contreras’s blood degree, and

stated that the decision was “final for the Department [of the Interior]” (the Olsen

letter). On April 21, 2006, the BIA returned the 150 applications to the tribal

enrollment committee as affected by the blood-degree decision. In 2014, Plaintiffs

requested information regarding the status of their enrollment applications and

after taking other procedural steps, Plaintiffs filed this action on September 28,

2016.

The parties agree that the six-year statute of limitations for claims under the

APA applies. See 28 U.S.C. § 2401(a). Section 2401(a) provides that an action

4 against the government is barred “unless the complaint is filed within six years

after the right of action first accrues.” Id. The parties also agree that the discovery

rule applies in this case, meaning that Plaintiffs’ claims accrued when they

“discover[ed], or in the exercise of reasonable diligence should have discovered,

the injury and its cause.” Tunac v. United States, 897 F.3d 1197, 1206 (9th Cir.

2018) (applying the discovery rule to determine when a claim accrued for purposes

of the statute of limitations in 28 U.S.C. § 2401(b)) (cleaned up); cf. Shiny Rock

Min. Corp. v. United States, 906 F.2d 1362, 1364–65 (9th Cir. 1990) (holding that

a claim accrued when a plaintiff had constructive notice of government action for

purposes of the statute of limitations in 28 U.S.C. § 2401(a)).

The parties disagree, however, as to when Plaintiffs’ claims accrued. The

BIA argues that the blood-degree decision issued on April 7, 2006, was final and

judicially reviewable when issued, and that Plaintiffs reasonably should have

discovered that the decision made them ineligible for enrollment at some date well

before September 28, 2010. Therefore, the BIA argues that Plaintiffs’ claims

accrued well before September 28, 2010, and the limitations period expired well

before Plaintiffs filed their complaint.

Plaintiffs disagree, arguing that the limitations period did not expire before

they filed their complaint for a wide range of reasons, including because their

5 claims did not accrue until mid-2015, after they first received notice of the status of

their enrollment applications in 2014, and had an opportunity to exhaust

administrative remedies. Alternatively, Plaintiffs argue that the limitations period

should be tolled for various equitable reasons.

In addressing the parties’ arguments, the district court did not make adequate

findings regarding when Plaintiffs’ claims accrued. The district court held that

“Plaintiffs have adequately alleged they lacked actual notice of the final agency

action” indicating that the discovery rule applied. But the district court failed to

make a clear finding regarding when Plaintiffs discovered or reasonably should

have discovered the final agency action. Instead, the district court held that

“Plaintiffs should have reasonably known that their applications had not been

approved well before the statute of limitations expired” without identifying the

date when Plaintiffs should have discovered this non-approval. The district court

then agreed with the BIA that “Plaintiffs should have known or could reasonably

have discovered within six years of April 7, 2006, of the denial to increase Ms.

Contreras’[s] blood degree and enroll Plaintiffs in the Band.” This could suggest

that Plaintiffs’ claims accrued on April 7, 2012 (six years after April 7, 2006),

which would mean that the limitations period did not expire until April 7, 2018

(after Plaintiffs had filed their complaint). But such a finding would be

6 inconsistent with the district court’s statement that it found “the statute of

limitations on Plaintiffs’ claim began to run on or around May 7, 2006, thirty days

after the April 7, 2006[,] letter was issued.” The district court appears to have

based that finding on when the time to appeal the BIA’s decision had expired,

without holding that the Plaintiffs should have discovered their injury by that date.

Moreover, the district court considered only the denial of the request to

correct the blood degree on April 7, 2006, and failed to clarify whether the BIA’s

“final agency action” or actions included the subsequent return of Plaintiffs’

enrollment applications to the enrollment committee on April 21, 2006. This

distinction could be significant, because unlike the Olsen letter, which was made

on behalf of the Secretary and thus not subject to appeal, see 25 C.F.R. § 2.6(c), it

is less certain whether Plaintiffs needed opportunities to exhaust administrative

remedies before the return of their enrollment applications was considered a final

agency action, see Darby v. Cisneros, 509 U.S. 137, 146 (1993); see also 25 C.F.R.

§§ 2.6 (Finality of decisions), 2.7 (Notice of administrative decision or action).

Because the district court did not clearly identify a final agency action or

actions, and also failed to make a finding as to when Plaintiffs discovered, or in the

exercise of reasonable diligence should have discovered, that they had been

injured, we are unable to determine when any of Plaintiffs’ causes of action

7 accrued. We reject the BIA’s argument that we can make such a determination on

appeal as a matter of law. When “the accrual of the statute of limitations in part

turns on what a reasonable person should have known” the issue is a “mixed

question of law and fact” which we review for clear error. Kingman Reef Atoll

Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008) (citing Rose v.

United States, 905 F.2d 1257, 1259 (9th Cir. 1990)). In the absence of sufficient

factual findings by the district court, we are unable to determine whether the

district court erred in dismissing Plaintiffs’ action as barred by the statute of

limitations.

Therefore, we vacate the district court’s judgment and remand for further

proceedings consistent with this disposition. In particular, the district court should

identify the final agency action or actions and make a specific finding as to when

Plaintiffs discovered, or in the exercise of reasonable diligence should have

discovered, the final agency action or actions. In light of this disposition, we do

not address Plaintiffs’ remaining arguments. We also deny Plaintiffs’ motion to

strike as moot. (Dkt. 29).

VACATED, REVERSED, AND REMANDED.1

1 Each party will bear its own costs on appeal. 8