UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


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Argued December 11, 2006               Decided January 19, 2007

No. 06-5092

ORANNA BUMGARNER FELTER, ET AL.,
APPELLANTS

V.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,ET AL.,
APPELLEES

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Appeal from the United States District Court
for the District of Columbia
(No. 20cv02156)

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Dennis G. Chappabitty argued the cause and filed the briefs for Appellant.

John E. Arbab, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was David C. Shilton, Attorney.

Before: TATEL and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In 2002, appellants, former members of the Ute Indian Tribe and their descendants, filed a mult-count complaint alleging that in the 1950s and 1960s the federal government improperly terminated their status as federally recognized Indians and, in the process of partitioning tribal assets prior to termination, breached its fiduciary duty to them. The district court dismissed the complaint, finding that plaintiffs' claims were barred by the six-year statute of limitations for non-tort actions against the United States. Although we agree with the district court's reasoning, we nonetheless remaind the case for consideration of whether plaintiffs' claims have been saved by recently enacted legislation providing that the statute of limitations "shall not commence to run" on Indian claims of trust fund mismanagement until the United States has provided an accounting.

I.

Because the district court dismissed plaintiffs' claims under Federal Rule of Civil Procedure 12(b), "we assume the facts alleged in plaintiffs' complaint are true." (rest of text omitted)

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The government also argues that Felter has waived her P.L. 108-108 argument by failing to present it to the district court. But Felter did argue in the district court that section 2401(a) does not bar her claim, and she now contends that P.L. 108-108 supports that argument. Although we generally decline to consider arguments not raised in the district court, see District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984), we have been careful to distinguish between failure to make an argument and failure to cite relevant legal authority, particularly where, as here, the interpretation of a statute is at issue. As the Supreme Court has explained, courts have an “independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). As a result, in United States v. Rapone, 131 F.3d 188, 196-97 (D.C. Cir. 1997), we held that a defendant who had repeatedly demanded a jury trial but failed to cite the relevant statute granting him this right may raise the overlooked legal authority on appeal. “Ignoring relevant precedents discovered on appeal,” we explained, “could ‘occasion appellate affirmation of incorrect legal results.’” Id. at 197 (quoting Elder v. Holloway, 510 U.S. 510, 515 n.3 (1994)). Likewise, in Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336 (D.C. Cir. 1999),"we have a duty to conduct an 'independent examination' of the statute in question." Id. at 1345-46; see also New York v. EPA, 431 F.3d 801,802 (D.C. Cir. 2005) (Williams, J., concurring) (addressing similar issue with regard to applicable regulation parties failed to raise). Here the government seeks dismissal of Felter's action under 28 U.S.C. § 2401(a), but in order to interpret that statute correctly, it must be determined whether it has been modified by P.L. 108-108. Because the district court had no opportunity to consider that question, and because the parties have not fully briefed the issue here, we remand to the district court to determine whether P.L. 108-108 applies to any of Felter's clams.

So ordered

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United States Court of Appeals
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