Demontiney v. USA.
| Citation | 255 F.3d 801 |
| Decision Date | 08 March 2001 |
| Docket Number | DEFENDANTS-APPELLEES,No. 99-35874,PLAINTIFF-APPELLANT,99-35874 |
| Parties | (9th Cir. 2001) JOHN DEMONTINEY, D/B/A EARTHWALKER ENGINEERING,, v. UNITED STATES OF AMERICA, ON BEHALF OF ITS AGENCY, THE DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS; CHIPPEWA CREE TRIBE OF ROCKY BOY'S RESERVATION, |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Robert L. Stephens, Jr., Southside Law Center, Billings, Montana, for the plaintiff-appellant.
Victoria L. Francis, Assistant United States Attorney, Billings, Montana; Barbara C. Biddle and Mary K. Doyle, Department of Justice, Civil Division, Washington, D.C., for defendant-appellee Department of Interior, Bureau of Indian Affairs.
Daniel Belcourt, Tribal Attorney, Chippewa Cree Tribe, Box Elder, Montana; and Daniel F. Decker, Decker & Desjarlais, St. Ignatius, Montana, for defendant-appellee Chippewa Cree Tribe of Rocky Boy's Reservation.
Appeal from the United States District Court for the District of Montana D.C. No. CV-98-00165-JDS Jack D. Shanstrom, Chief District Judge, Presiding
Before: Harry Pregerson, Sidney R. Thomas, and Ronald M. Gould, Circuit Judges.
This case arises from a contract dispute among an Indian tribal member, the tribe, and a federal agency over a construction project on tribal land. The issues before us are jurisdictional. Appellant, Chippewa Cree tribal member John Demontiney ("Demontiney"), doing business as Earthwalker Engineering, entered into a subcontract with Appellee, the Chippewa Cree Tribe of Rocky Boy's Reservation (the "Tribe"), for engineering services to remodel the Bonneau Dam located on tribal land in Montana. Demontiney sued the Tribe and Appellee, the United States of America, Department of Interior, Bureau of Indian Affairs, the prime contractor for the dam project, for breach of contract. The district court granted the motions to dismiss filed by the United States and the Tribe, concluding that neither the United States nor the Tribe had waived its sovereign immunity to suit in district court and that their sovereign immunity had not been otherwise abrogated. The district court transferred the claims against the United States to the United States Court of Federal Claims ("Court of Federal Claims").
Demontiney appeals the district court's grant of the motions to dismiss. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, and we affirm.
On May 15, 1992, the United States, through the Bureau of Indian Affairs ("BIA"), entered into a contract with the Tribe to perform structural modifications to the Bonneau Dam on the Rocky Boy's Indian Reservation in Montana. On July 16, 1992, Earthwalker Engineering ("Earthwalker") and the Tribe entered into a contract concerning the dam construction ("July subcontract"). On August 6, 1992, Earthwalker and the Tribe signed an "Architect-Engineer contract" for $823,000 to complete all the modifications to the dam ("August subcontract"). The August subcontract incorporated provisions of a longer "General Provisions contract." The two subcontracts also incorporated "Scope of Work" provisions for the "Final Design" and the "Early Warning System" of the dam.1 Disputes arose concerning Earthwalker's performance under the subcontract, and the Tribe terminated the subcontract on May 3, 1995.
About one year later, Demontiney filed a complaint in the Chippewa Cree Tribal Court ("Tribal Court") against the Chippewa Cree Tribal Business Committee ("Business Committee") and the Tribe. Shortly thereafter, Demontiney filed another complaint against the Business Committee and the Tribe in Tribal Court alleging breach of contract. The complaint indicated that "[p]laintiff prays for the Chippewa Tribal Court Remedies to be exhausted and move him to the federal court system." In an affidavit attached to the second complaint, Demontiney stated that he had "appeared before the Chippewa Cree Business Committee on this matter and . . . had no relief." Demontiney then moved for a default judgment against the Business Committee and the Tribe. The Tribal Court denied the motion for default judgment and dismissed the complaint for failure to state a claim. The court found that: (1) the case was moot because the Tribe-BIA contract had been completed and the "Defendant's[sic] have terminated their contractual relationship with the Plaintiff due to Plaintiff's failure to deliver contract documents"; (2) Demontiney had not established that the Tribe had waived its sovereign immunity; and (3) the proper forum for resolving the dispute was the Business Committee. Two months later, the Tribal Court issued another order dismissing the case without prejudice and indicated that its ruling could be appealed within five days. Demontiney did not appeal the decision.
Demontiney also filed a complaint concerning the unpaid balance of the subcontract with a contracting officer of the BIA. The contracting officer made a final determination that because there was no contract between Earthwalker and the BIA, no relief was available. Demontiney did not appeal the contracting officer's decision.
On November 20, 1998, Demontiney filed a complaint against the United States and the Tribe in the United States District Court for the District of Montana. Demontiney asserted jurisdiction pursuant to the Contract Disputes Act of 1978, the Prompt Payment Act, and the Equal Access to Justice Act. Demontiney alleged that Earthwalker had entered into a multi-part contractual agreement with the Tribe to provide engineering services for the dam project, and that the BIA had approved the subcontract and had overseen its performance. Demontiney further claimed to have exhausted tribal judicial and administrative remedies and administrative remedies under the Contract Disputes Act.
In his prayer for relief, Demontiney requested: (1) $185,419 representing the alleged balance due under the subcontract, plus twelve percent interest under the Prompt Payment Act; (2) $55,305 in costs and expenses incurred for performance under the subcontract, plus interest; (3) $145,426 for payment to another firm for work completed in connection with Earthwalker's performance on the subcontract; and (4) attorneys' fees under the subcontract's terms and the Equal Access to Justice Act.
The Tribe filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), stating that the subcontract was between a tribal member and the Tribe and should be resolved by the "administrative, legislative, and judicial branches" of the tribal government. The Tribe also argued that Demontiney had not exhausted tribal remedies, and that the Tribe had not waived its sovereign immunity.
The United States filed a motion to dismiss or in the alternative for summary judgment. The United States contended that federal sovereign immunity barred Demontiney's claims against the BIA in district court and that the Contract Disputes Act, the Prompt Payment Act, and the Equal Access to Justice Act did not provide jurisdiction in this context. The United States also contended that Demontiney was not entitled to bring a claim against it under the Contract Disputes Act because there was no privity of contract between Earthwalker and the BIA.
The Tribe filed a separate response to the United States' motion to dismiss. In the response, the Tribe agreed that the district court lacked jurisdiction over the United States, but argued that there was privity between Earthwalker and the BIA because of: (1) the BIA's close oversight of the subcontract; and (2) the "nearly identical" terms of the Tribe-BIA contract and the Earthwalker-Tribe subcontract.
The district court granted the motions to dismiss of the United States and the Tribe. The district court determined that it lacked jurisdiction over either the United States or the Tribe for Demontiney's contract claims because neither the United States nor the Tribe had waived its sovereign immunity or had its sovereign immunity abrogated by Congress. The district court also found that if Earthwalker was in privity with the BIA, then Demontiney would have jurisdiction to pursue his contract claims against the United States under the Contract Disputes Act in the Court of Federal Claims. Without making this privity determination, the district court transferred Demontiney's claims against United States to the Court of Federal Claims.
Demontiney appeals.
We review de novo whether an Indian tribe possesses sovereign immunity, United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992); whether Congress has statutorily waived an Indian tribe's sovereign immunity, Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 921 (9th Cir. 1995); whether the United States has waived its sovereign immunity, Commodity Futures Trading Commission v. Frankwell Bullion Ltd. , 99 F.3d 299, 305 (9th Cir. 1996); and whether dismissal for lack of subject matter jurisdiction was correct, Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).
We address: (1) whether the United States' sovereign immunity has been waived or abrogated; and (2) whether the Tribe's sovereign immunity has been waived or abrogated.
For Demontiney to state a claim against the United States in district court, he must establish privity of contract with the BIA and a waiver of federal sovereign immunity. We need not resolve privity because no waiver of federal sovereign immunity has been shown. Demontiney asserts waiver or abrogation of federal sovereign immunity arising from: (1) the Indian Self-Determination and Education Assistance Act; (2) the Contract Disputes Act; (3) the Prompt Payment Act; and (4) the Equal Access to Justice Act. We consider each, but none shows a waiver.
Demontiney argues that the Indian Self-Determination and Education Assistance...
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