Yakama Indian Nation v. State of Wash. Dept. of Revenue
| Citation | 176 F.3d 1241 |
| Decision Date | 01 June 1999 |
| Docket Number | No. 98-35068,98-35068 |
| Parties | 99 Cal. Daily Op. Serv. 4091, 1999 Daily Journal D.A.R. 5201 YAKAMA INDIAN NATION, Plaintiff-Appellant, v. STATE OF WASHINGTON DEPARTMENT OF REVENUE, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Leslie Weatherhead, Witherspoon, Davenport, Kelley & Toole, Spokane, Washington, for the plaintiff-appellant.
John Barnes, Assistant Attorney General, Olympia, Washington, for the defendant-appellee.
Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. No. CV-97-03012-RHW, CV-97-03013-RHW.
Before: PREGERSON and THOMPSON, Circuit Judges, and MOSKOWITZ, District Judge. 1
OVERVIEW
The Yakama Indian Nation ("the Nation") appeals the dismissal of its declaratory judgment and injunctive relief action against the State of Washington Department of Revenue ("the Department"). In that action, the Nation challenged, on the ground of sovereign immunity, the Department's seizure of unstamped packages of cigarettes owned by, and being transported to, the Nation. The Nation argues that the district court erred by immunizing the state against suit under the Eleventh Amendment and by denying the Nation's request to amend its complaint to include ultra vires claims against state officers. We have jurisdiction under 28 U.S.C. § 1291 to review the dismissal of the original action and the denial of leave to amend, and we affirm those decisions.
The Nation also appeals the district court's order remanding an administrative forfeiture proceeding that the Department instituted after it seized the cigarettes, and which the Nation removed to the district court. Because 28 U.S.C. § 1447(d) precludes appellate jurisdiction to review the remand order, we dismiss that portion of the appeal.
Washington taxes the sale, use, consumption, handling, possession, and distribution of cigarettes. See Wash. Rev.Code § 82.24.020. The Department enforces this tax law, which provides that, absent some exceptions, cigarette packages possessed in Washington must bear applicable stamps as proof of tax payment. See id. § 82.24.030. "Although Indians are permitted to buy unstamped, tax-exempt cigarettes on Indian reservations located within the State of Washington, all deliveries of unstamped cigarettes to Indian reservations in Washington must be preapproved by [the Department]." United States v. Baker, 63 F.3d 1478, 1483 (9th Cir.1995) (citing Wash. Admin. Code § 458.20.192). Preapproval is obtained by giving advance notice to the Department. In the absence of such notice, any unstamped cigarettes are considered contraband, see id., and are subject to seizure and sale. See Wash. Rev.Code § 82.24.250(4); Baker, 63 F.3d at 1489.
On January 16, 1997, a Washington state patrol trooper asked the driver of a truck and trailer that had just crossed the scales of a weigh station near Plymouth, Washington, to produce all paperwork related to his shipment. The driver produced a bill of lading indicating that he was carrying a load of cigarettes apparently owned by and bound for the Nation in Toppenish, Washington. While checking the load of the truck, the state trooper noticed individual cigarette packages that did not bear the state tax stamps. The state trooper contacted the Washington Department of Revenue and was informed that the Department had not received notification of the transport of unstamped cigarettes to the Nation. The state trooper then obtained a search warrant from the Benton County Superior Court, searched the truck, seized the load of cigarettes, inventoried them, and stored them in a warehouse.
The Department notified the Nation that the cigarettes had been seized as contraband under Washington law. The Nation then wrote a letter to the Department demanding the return of the cigarettes. Pursuant to Washington Revenue Code section 82.24.135, the Department sent the Nation notice of an administrative forfeiture hearing, during which the Nation would be afforded an opportunity to challenge the seizure and to assert its claim to the cigarettes.
Instead of participating in the hearing, the Nation filed a complaint against the Department in the district court seeking (1) a declaration that the State of Washington and its courts and tribunals cannot exercise jurisdiction over a sovereign nation and that the Nation is immune from suit by the Department; (2) an injunction prohibiting the Department from proceeding with the administrative hearing; and Because of the perishable nature of the cigarettes, the Department sold the cigarettes at auction for $235,000. The proceeds from the auction were paid into the registry of the district court pursuant to stipulation of the parties and order of the court.
(3) an order requiring the Department to return the Nation's cigarettes or the proceeds from their sale. At the same time, although in a separate action, the Nation, relying on 28 U.S.C. § 1441, removed the administrative forfeiture proceeding to the district court. The district court did not order the two cases consolidated.
The Nation moved to dismiss the removed forfeiture proceeding, arguing that the Department could not exercise jurisdiction over a sovereign nation. The Nation also sought leave to amend its original action to include ultra vires claims against individual state officers. The Department moved to dismiss the Nation's complaint under the Eleventh Amendment and to remand the removed administrative proceeding to the state administrative tribunal. The district court granted both of the Department's motions, denied the Nation's motions, and ordered disbursement of the auction proceeds to the Department. The court later denied the Nation's motion for reconsideration, but stayed disbursement of the auction proceeds to preserve the status quo pending appeal.
We first consider whether the Eleventh Amendment bars the Nation's lawsuit against the State of Washington for declaratory and injunctive relief and for return of the cigarette proceeds. Immunity under the Eleventh Amendment is a question of law that we review de novo. See Micomonaco v. Washington, 45 F.3d 316, 319 (9th Cir.1995).
The Eleventh Amendment bars suits against a state or its agencies, regardless of the relief sought, unless the state unequivocally consents to a waiver of its immunity. See Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)); see also Blatchford v. Native Village of Noatak, 501 U.S. 775, 782, 788, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (). The state's consent must be "unequivocally expressed," Pennhurst State Sch. & Hosp., 465 U.S. at 99, 104 S.Ct. 900, meaning that the consent is effective "only where stated by the most express language...." Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) (internal quotation and citation omitted).
The Nation contends that the state consented to suit by "involving itself in federal court litigation" and "depositing the cigarette proceeds into the court's register." We reject this argument because the state did not unequivocally express its assent to suit. As the district court correctly noted, the Department asserted sovereign immunity as an affirmative defense in its first responsive pleading, which was filed before the parties stipulated to the deposit of the cigarette proceeds into the district court's registry. Given the Department's clear assertion of sovereign immunity in its pleadings, its agreement to deposit the forfeited proceeds into the court registry pending litigation was simply an act of cooperation, not an unequivocal consent waiving sovereign immunity. Because the state did not unequivocally waive its Eleventh Amendment immunity, the district court did not err in dismissing the Nation's complaint on that ground.
The Nation argues that the district court erred in denying its motion to amend its complaint to include ultra vires claims against individual state officers not named in the original complaint. According to the Nation, these individuals were "involved We review for abuse of discretion a district court's refusal to grant leave to amend after a responsive pleading has been filed. See Schlacter-Jones v. General Tel. of Cal., 936 F.2d 435, 443 (9th Cir.1991). Amendment under the Federal Rules of Civil Procedure should be granted "unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir.1997).
in the actual seizure in question and [were] the individuals responsible for the enforcement of the statute under which the Department claimed authority to seize and forfeit the Tribe's property." The Nation contends that these state officers acted ultra vires in violating the Nation's sovereign immunity
The district court denied the Nation leave to amend, concluding that Eleventh Amendment immunity also protected the state officers from suit-in essence holding that the Nation's proposed amendment would be futile because it would fail as a matter of law on a motion for summary judgment. See Roth v. Garcia Marquez, 942 F.2d 617, 628-29 (9th Cir.1991). To determine whether the district court abused its discretion by this ruling, we consider whether Eleventh Amendment immunity would bar claims against the individual state officers as a matter of law, rendering the Nation's proposed amendment futile.
The Supreme Court has held that a suit against state officers acting in their individual capacities does not violate a...
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Appendix A
...Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S. Ct. 494, 133 L. Ed. 2d 461 (1995); Yakama Indian Nation v. Wash. Dep't of Revenue, 176 F.3d 1241, 1248 (9th Cir. 1999), cert, denied, 528 U.S. 1116 (2000). The ban on appellate review prevents the delay and uncertainty that could result if ......