Dawavendewa v. Salt River Project

• Decision Date: 02 January 2002
• Docket Number: No. 00-16787,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,00-16787
• Citation: 276 F.3d 1150
• Parties: (9th Cir. 2002) HAROLD DAWAVENDEWA, A SINGLE MAN,, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, AN ARIZONA CORPORATION,, THE NAVAJO NATION, APPELLEE
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1150

276 F.3d 1150 (9th Cir. 2002)

HAROLD DAWAVENDEWA, A SINGLE MAN, PLAINTIFF-APPELLANT, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, AN ARIZONA CORPORATION, DEFENDANT-APPELLEE, THE NAVAJO NATION, APPELLEE.

No. 00-16787

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 17, 2001

Filed January 2, 2002

[Copyrighted Material Omitted]

Counsel Bradley H. Schleier, Schleier, Jellision & Schleier, P.C., Phoenix, Arizona, for the plaintiff-appellant.

John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix, Arizona, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona D.C. No. CV-96-01165-SMM Stephen M. McNamee, Chief District Judge, Presiding

Before: Robert R. Beezer, Stephen S. Trott, and Richard C. Tallman, Circuit Judges.

Trott, Circuit Judge

OVERVIEW

Harold Dawavendewa ("Dawavendewa") sued the Salt River Project Agricultural Improvement and Power District ("SRP") for employing a hiring preference policy in violation of Title VII of the Civil Rights Act of 1964.¹ In particular, he alleged that SRP's lease with the Navajo Nation ("Nation") required it to preferentially hire Navajos at the Navajo Generating Station ("NGS"). The district court dismissed Dawavendewa's complaint for failure to join the Nation as an indispensable party.

Pursuant to 28 U.S.C. §§ 1291, we have jurisdiction over Dawavendewa's timely appeal. As a signatory to the lease, we conclude the Nation is a necessary party that cannot be joined because it enjoys tribal sovereign immunity. We further conclude that tribal officials cannot be joined to replace the immune Nation; rather, the Nation itself is indispensable to this suit. Accordingly, we affirm the district court's dismissal of Dawavendewa's complaint without prejudice.

BACKGROUND

SRP operates NGS on reservation lands leased directly from the Navajo Nation. As required by its lease, SRP extends employment preferences to qualified local Navajos at NGS.² This lease provision mirrors the Navajo Preference in Employment Act ("NPEA") which states: "[a]ll employers doing business . . . [on or near the reservation ] of the Navajo Nation . . . shall . . . [g]ive preference in employment to Navajos." Nation Code tit. 15, §§ 604 (1995)."Preference in employment shall include specific Navajo affirmative action plans and timetables for all phases of employment to achieve the Navajo Nation goal of employing Navajos in all job classifications including supervisory and management positions." Id.

Dawavendewa, a member of the Hopi Tribe, lives less than three miles from the Navajo reservation. Dawavendewa applied for employment as an Operator Trainee at NGS. After a qualifications test Dawavendewa ranked ninth out of twenty applicants. Yet, because Dawavendewa is not affiliated with the Nation, he was never interviewed for the Operator Trainee position.

Dawavendewa filed a complaint in district court accusing SRP of discriminating against him on the basis of his national origin in violation of Title VII. Dawavendewa's complaint asserted no causes of action against the Nation or tribal officials, and they are not parties to this litigation. SRP moved to dismiss Dawavendewa's complaint on the grounds that a hiring preference policy based on tribal affiliation does not constitute national origin discrimination or, in the alternative, that Title VII's Indian preference exemption³ expressly shelters tribal hiring policies from liability. The district court granted SRP's motion to dismiss, holding that the Indian preferences exemption excludes from liability hiring preference policies based on tribal affiliation.

On appeal, we reversed and remanded. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120 (9th Cir. 1998) (Dawavendewa I ). We concluded that (1) as described in the complaint, differential employment treatment based on tribal affiliation is actionable as national origin discrimination under Title VII; and (2) the Indian preferences exemption in Title VII does not shelter this conduct. Id. at 1124.

SRP appealed our decision in Dawavendewa I to the Supreme Court. The Solicitor General submitted an amicus brief arguing against the grant of certiorari because "this case is in an interlocutory posture, and [SRP] would not be barred from presenting other arguments in defense of its preference [policy] on remand." Indeed, no court had yet considered Dawavendewa's suit on the merits or whether any legal justification, such as treaty rights or the federal policy encouraging tribal self governance excused SRP's Navajo preference policy. The Supreme Court denied certiorari. See Salt River Project Agric. Improvement & Power Dist. v. Dawavendewa, 528 U.S. 1098 (2000).

On remand to the district court, SRP moved to dismiss Dawavendewa's complaint for failure to join the Nation as an indispensable party. The district court ruled that the Nation was an indispensable party and granted SRP's motion.

Dawavendewa appeals that determination.

STANDARD OF REVIEW

We review a district court's decision to dismiss for failure to join an indispensable party for abuse of discretion. See Clinton v. Babbitt, 180 F.3d 1081, 1086 (9th Cir. 1999); Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996). "To the extent that the district court's determination whether a party's interest is impaired involves a question of law, we review de novo." Pit River Home & Agric. Coop. Assoc. v. United States, 30 F.3d 1088, 1098 (9th Cir. 1994).

DISCUSSION

Application of Federal Rule of Civil Procedure 19 determines whether a party is indispensable. The inquiry is a practical, fact-specific one, designed to avoid the harsh results of rigid application. See Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). We must determine: (1) whether an absent party is necessary to the action; and then, (2) if the party is necessary, but cannot be joined, whether the party is indispensable such that in "equity and good conscience" the suit should be dismissed. Confederated Tribes v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991) (quoting Makah Indian Tribe, 910 F.2d at 558).

I. Necessary Party

In determining whether the Nation is necessary under Rule 19,⁴ we consider whether, in the absence of the Nation, complete relief can be accorded to Dawavendewa. See Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992). In the alternative, we consider whether the Nation claims a legally protected interest⁵ in the subject of the suit such that a decision in its absence will (1) impair or impede its ability to protect that interest; or (2) expose SRP and Dawavendewa to the risk of multiple or inconsistent obligations by reason of that interest. See Fed. R. Civ. P. 19(a)(2); Makah Indian Tribe, 910 F.2d at 558. If the Nation satisfies either of these alternative tests, it is necessary to the instant litigation. See Clinton, 180 F.3d at 1088.

A. In the Absence of the Navajo Nation, Complete Relief Cannot Be Accorded To Dawavendewa

Even if ultimately victorious in federal court, Dawavendewa cannot be accorded complete relief in the absence of the Nation. Dawavendewa seeks injunctive relief to ensure his employment at SRP and to prevent SRP from employing the Navajo hiring preference policy required by its lease with the Nation. Yet only SRP and Dawavendewa -and not the Nation -would be bound by such an injunction. The Nation could still attempt to enforce the lease provision in tribal court and ultimately, even attempt to terminate SRP's rights on the reservation. The district court correctly observed that "if SRP were to ignore [the] injunction, [Dawavendewa] and others like him would not receive the employment they seek," whereas "[i]f SRP were to comply with the injunction, the Navajo Nation would be likely to take action against SRP under its lease."

We faced a similar situation in Confederated Tribes where we addressed an action brought by various Indian Tribes against federal officials challenging the United States' continued recognition of the Quinault Indian Nation as the sole governing authority of the Quinault Indian Reservation. 928 F.2d at 1497. In affirming the district court's dismissal of the case for failure to join the Quinault Nation as an indispensable party, we held that "success by the plaintiffs . . . would not afford complete relief to them" because "[j]udgment against the federal officials would not be binding on the Quinault Nation, which could continue to assert sovereign powers and management responsibilities over the reservation. " Id. at 1498.

Likewise, in Pit River Home, plaintiff Association sought judicial review of the Secretary of Interior's designation of the Pit River Tribal Council as the beneficiary of reservation property. 30 F.3d at 1092. We affirmed the district court's dismissal of the suit for the Association's failure to join the Council as an indispensable party. In doing so, we opined that "even if the Association obtained its requested relief . . . it would not have complete relief, since judgment against the government would not bind the Council, which could continue to assert its right to [ ] the [property]." Id. at 1099.

Dawavendewa stands in the same position as the plaintiff Association in Pit River Home and the various Indian Tribes in Confederated Tribes: he is not assured complete relief even if victorious. Indeed, if the federal court granted Dawavendewa's requested injunctive relief, SRP would be between the proverbial rock and a hard place -comply with the injunction prohibiting the hiring preference policy or comply with the lease requiring it. If, in resolving this quandary, SRP declines to abide by the injunction and instead continues to comply with its lease obligations, Dawavendewa would not be accorded complete relief. Thus, under Rule 19(a)(1), the Nation is a necessary party.

B. Impairment of the Nation's Legally...