The Osage Tribal Council v. US. Dept. of Labor, 97-9564

• Decision Date: 04 August 1999
• Docket Number: No. 97-9564,97-9564
• Citation: 187 F.3d 1174
• Parties: (10th Cir. 1999) THE OSAGE TRIBAL COUNCIL, on behalf of the OSAGE TRIBE OF INDIANS, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, CHRIS WHITE, Intervenor
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1174

187 F.3d 1174 (10th Cir. 1999)

THE OSAGE TRIBAL COUNCIL, on behalf of the OSAGE TRIBE OF INDIANS, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, CHRIS WHITE, Intervenor.

No. 97-9564

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 4, 1999

APPEAL FROM DECISION OF THE ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR. A.R.B. No. 96-137

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] F. Browning Pipestem (and Dena L. Silliman with him on the briefs), F. Browning Pipestem & Associates, Norman, Oklahoma, for Petitioner, the Osage Tribal Council.

Ellen L. Beard, Senior Appellate Attorney (Marvin Krislov, Deputy Solicitor for National Operations, and Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, with her on the brief), U.S. Department of Labor, Washington, D.C., for Respondent, U.S. Department of Labor.

John T. Edwards, Oklahoma City, Oklahoma, for Intervenor, Chris White.

Before ANDERSON, HENRY, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

The Osage Tribal Council (the Council) petitions for review of an order by the Administrative Review Board of the Department of Labor in a proceeding under the employee protection provisions of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i). The Board's order rejected the Council's assertion that it was entitled to tribal immunity, found for the complainant, Chris White, and remanded the matter to the administrative law judge for a determination of the amount of back pay, attorneys' fees, and costs to which Mr. White was entitled. We hold that the Board's denial of sovereign immunity is reviewable under the collateral order doctrine, affirm the Board's determination that the SDWA abrogates tribal immunity, and remand to the Board for further proceedings. We do not address the intervenor's arguments as the order is not yet final and thus not reviewable as to his claims.

I. BACKGROUND

Chris White was employed by the Council as an environmental inspector. He was directly supervised by both Council and Environmental Protection Agency (EPA) employees, and was responsible for monitoring the Council's compliance with the underground injection control provisions of the SDWA. His duties included filing violation reports, which could and did trigger SDWA enforcement actions from the regional EPA office.

In late spring of 1994, the EPA directed its inspectors, including Mr. White, to begin monitoring compliance with the SDWA's surface pollution provisions. Inspectors were directed to send copies of any reports of surface pollution violations on the Osage mineral estate to the local Bureau of Indian Affairs (BIA) agency offices in addition to the regional EPA office. Testimony of Mr. White's supervisors established that he performed these duties exceptionally.

In February, 1995, although no one had ever complained before, Mr. White's immediate tribal supervisor, Patricia Beasley, was notified of certain complaints about him from BIA employees and mineral lease operators. Later that month, the joint Council-EPA committee met to discuss the complaints. On March 15, this committee issued a memorandum to Ms. Beasley directing her to fire Mr. White. The memorandum referenced various specific complaints against White by oil leaseholders and cited "serious misconduct" and "disloyalty" as the reasons for his termination.

Mr. White alleged, however, that the Council terminated him for engaging in acts protected under the SDWA filing environmental violation reports because the Council was concerned the reports would affect oil production on the Osage mineral estate. The Council responded that Mr. White only filed his suit for political reasons, owing to the political upheaval and infighting between two factions, the Council (the traditional governing body) and the Osage National Council (a recently formed competitor).

After Mr. White was terminated, he had a hearing before his supervisors, who upheld his termination on April 6, 1995. He did not appeal the decision to the joint Council-EPA Committee. Instead, Mr. White filed a complaint of discrimination with the Secretary of Labor ("the Secretary") under the SDWA's whistle blower employee protection provisions. See 42 U.S.C. § 300j-9(i). In response, the Council argued that the SDWA had not explicitly abrogated its tribal sovereign immunity, and therefore the Council could not be held subject to the SDWA's enforcement provisions.

Following a hearing, the Administrative Law Judge (ALJ) issued a recommended order that rejected the Council's immunity claim and found in favor of White. On administrative appeal, the Administrative Review Board rejected the ALJ's recommendation of punitive damages but otherwise adopted the order on all issues, and remanded to the ALJ for a determination of damages and costs.

On October 7, 1997, the Council petitioned for review of the Board's decision. We have jurisdiction to review orders of the Secretary of Labor under 42 U.S.C. § 300j-9(i)(3)(A). Under Fed. R. App. P. 15(a), the Department of Labor is the respondent on appeal. The original complainant, Mr. White, appears as an intervener. See Fed. R. App. P. 15(d).

On October 27, the Secretary filed a motion to dismiss on the grounds that the Board's action below did not yet constitute a final appealable order. The ALJ returned its pending administrative case to the Administrative Review Board pending the outcome of the appeal in this case.

II. Discussion

A. Whether the Secretary's Ruling is Reviewable on Appeal as a Collateral Order

We must first address the threshold question of whether the Secretary's order rejecting the Council's sovereign immunity defense with respect to the SDWA is reviewable notwithstanding lack of a final judgment. As the Supreme Court has noted, "at least in the absence of an appealable collateral order, the federal courts may exercise jurisdiction only over a final [administrative agency] order." Bell v. New Jersey, 461 U.S. 773, 778-79 (1983) (internal citations omitted). Here, however, the Council argues that its petition is just such an immediately appealable collateral order.

In limited circumstances, the collateral order doctrine allows interlocutory appeal of an order that does not actually end the litigation. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). As the Supreme Court has explained, "[i]n Cohen, we held that §1291 permits appeals not only from a final decision by which a district court disassociates itself from a case, but also from a small category of decisions that, although they do not end the litigation, must nonetheless be considered 'final.'" Swint v. Chambers County Comm'n, 115 S. Ct. 1203, 1208 (1995). An order falls within the collateral order doctrine if (1) it conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See United States v. Leon, 132 F.3d 583, 587 (10th Cir. 1997).

The Eleventh Circuit has held that the denial of a tribal immunity claim satisfies the collateral order doctrine. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Florida, 63 F.3d 1030, 1050 (11th Cir. 1995). The Tamiami court analogized the tribal immunity claim to the Supreme Court's treatment of a qualified immunity claim in Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). As the circuit court noted, in Mitchell, the Supreme Court treated the third Cohen factor effective unreviewability on appeal as predominant. Id. The Mitchell Court held that a denial of qualified immunity was immediately reviewable as a collateral order because qualified immunity shared the essential attribute of absolute immunity: "The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 at 526 (emphasis added). Thus, the Supreme Court held, "the reasoning that underlies the immediate appealability of an order denying absolute immunity indicate to us that the denial of qualified immunity should be similarly appealable." Id. at 526-27. Following suit, the Eleventh Circuit in Tamiami held that because tribal immunity similarly guarantees immunity against suit, the district court's denial of tribal immunity was similarly immediately appealable under the collateral order doctrine. Id.

Following the Supreme Court's guidance in Mitchell, we join the Eleventh Circuit in holding that the denial of tribal immunity is an immediately appealable collateral order. As above, the major part of the inquiry is whether the third Cohen factor is met, i.e., whether the order is effectively unreviewable on appeal. As in Mitchell, that inquiry focuses on whether the immunity at issue shares the essential attribute of absolute immunity, that is, immunity from suit. The Supreme Court has very clearly held that tribal immunity does indeed guarantee immunity from suit, and not merely a defense to liability. See Kiowa Tribe of Okla. v. Manufacturing Techs., Inc., 118 S. Ct. 1700, 1704 (1998). Thus tribal immunity is of the sort that is immediately appealable.

Here, however, the Council has already borne much of the burden of "trial" in the administrative proceeding, and the Secretary argues thus that, in effect, the Council has nothing left to lose and the third Cohen factor is not met. We disagree. Although, ideally, the question of the Council's immunity should have been decided earlier in the administrative process such that Council would not have borne any possibly erroneous trial burden, here the Council still faces the burden of calculating damages in the proceeding on remand. Were this case erroneously permitted to proceed further, the Council's absolute entitlement to immunity from suit would still be effectively lost. Thus, the third Cohen...