Bodi v. Shingle Springs Band of Miwok Indians

• Decision Date: 08 August 2016
• Docket Number: No. 14-16121,14-16121
• Citation: 832 F.3d 1011
• Parties: Beth A. Bodi, Plaintiff–Appellee, v. Shingle Springs Band of Miwok Indians ; Shingle Springs Tribal Health ; Timothy Adams, as current Chairperson of the Shingle Springs Tribal Health Board, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

832 F.3d 1011

Beth A. Bodi, Plaintiff–Appellee,

v.Shingle Springs Band of Miwok Indians ; Shingle Springs Tribal Health ; Timothy Adams, as current Chairperson of the Shingle Springs Tribal Health Board, Defendants–Appellants.

No. 14-16121

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2016 San Francisco, California

Filed August 8, 2016

Christopher F. Wohl (argued), Palmer Kazanjian Wohl Hodson LLP, Sacramento, California; Paula Yost, Sandra R. McCandless and Ian Barker, Dentons US LLP, San Francisco, California; for Defendants-Appellants.

David Nied (argued) and Wendy L. Hillger, Ad Astra Law Group, LLP, San Francisco, California, for Plaintiff-Appellee.

Richard D. Monkman, Harry R. Sachse and Peng Wu ; Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, Alaska; for Amici Curiae Arctic Slope Native Association, LTD and Puyallup Tribe.

Before: M. Margaret McKeown, Robert D. Sack^** , and Michelle T. Friedland, Circuit Judges.

OPINION

FRIEDLAND

, Circuit Judge:

This appeal requires us to decide whether a federally recognized Indian tribe waives its sovereign immunity from suit by exercising its right to remove to federal court a case filed against it in state court. This question has divided the district courts, and it has been reached by only one of our sister circuits, which held that removal does not, standing alone, waive tribal immunity. See Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla. , 692 F.3d 1200, 1206–08 (11th Cir. 2012)

. We now follow the lead of the Eleventh Circuit and hold that the act of removal does not express the clear and unequivocal waiver that is required for a tribe to relinquish its immunity from suit. Because the district court held otherwise, we reverse.

I.

The Shingle Springs Band of Miwok Indians (the “Tribe”) is a federally-recognized Indian tribe located on the Shingle Springs Rancheria in California.¹ Since about 1995, the Tribe has owned and operated a full-service health clinic. The clinic operates under the name Shingle Springs Tribal Health Program (the “Health Program”) and is run by the Shingle Springs Tribal Health Board (the “Health Board”), whose nine directors are all members of the Tribe. Among its duties, the Health Board is responsible for the hiring and termination of the clinic Executive Director.

Plaintiff-Appellee Beth A. Bodi is a member of the Tribe. Bodi began working at the clinic in 1997 and became its Executive Director in November 2001. In August 2012, after she attempted to take job-protected leave under the Family Medical Leave Act (the “FMLA”), 29 U.S.C. §§ 2601

–2654, on account of successive severe health conditions, the Health Board terminated Bodi's employment by way of a letter from its Chairperson. The Tribe later rehired Bodi as Executive Assistant to the Tribal Chairman, but she was terminated from that position in April 2013 after sending a communication to tribal officials complaining about her earlier termination and noting her willingness to seek redress in state court.

Bodi filed suit in California state court, asserting claims against the Tribe under the FMLA and California law. The Tribe timely removed the action to the United States District Court for the Eastern District of California on the basis of that court's federal question jurisdiction over the FMLA claim and supplemental jurisdiction over the state law claims. One week later, the Tribe moved to dismiss the lawsuit under Federal Rule of Civil Procedure 12(b)(1)

for lack of subject matter jurisdiction, arguing that the Tribe's sovereign immunity protected it from suit. In lieu of a response, Bodi amended her complaint, adding the Health Program, the Health Board, and the Health Board's Chairperson² as defendants.

Defendants filed a renewed motion to dismiss based on tribal immunity.³ The district court denied Defendants' motion on the ground that the Tribe had unequivocally waived its immunity by removing the action to federal court. Because it found waiver based on removal, the court did not reach additional grounds for loss of tribal immunity pressed by Bodi, including that Congress abrogated tribal immunity through the FMLA and that the Tribe had waived its immunity through Tribal Council resolutions to obtain federal funding to build the health clinic. The court also declined to reach Defendants' additional defense that the Tribe's exclusive right of self-governance barred Bodi's claims for injunctive relief under the FMLA.⁴

Acknowledging that district courts in this circuit were split on the waiver-by-removal question,⁵ the district court expressed its hope that Defendants would “appeal [its] ruling so that a higher court may definitively resolve the issue.” See Bodi v. Shingle Springs Band of Miwok Indians , 19 F.Supp.3d 978, 987 (E.D. Cal. 2014)

. Defendants did so, and because the “denial of a claim of tribal sovereign immunity is immediately appealable” even absent a final judgment, Burlington N. & Santa Fe Ry. Co. v. Vaughn , 509 F.3d 1085, 1091 (9th Cir. 2007), that issue is now squarely before us.

II.

We review de novo a district court's decision on a motion to dismiss for lack of subject matter jurisdiction. See Miller v. Wright , 705 F.3d 919, 923 (9th Cir. 2013)

. We likewise review de novo whether an Indian tribe has waived its immunity from suit. See id. ; Demontiney v. United States ex rel. Dep't of Interior, Bureau of Indian Affairs , 255 F.3d 801, 805 (9th Cir. 2001).

III.

The gravamen of this appeal is the question whether a tribe's removal of a case from state to federal court constitutes, in and of itself, a valid waiver of its immunity from suit.⁶ The Eleventh Circuit, the only one of our sister circuits to have reached this issue, held that it does not. Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla. , 692 F.3d 1200, 1206–08 (11th Cir. 2012)

. Application of settled tribal immunity principles and consideration of the fairness and administrative concerns at stake lead us to the same conclusion reached by the Eleventh Circuit: that a tribe's exercise of its right to remove a case to federal court, standing alone, does not effect a waiver of its immunity from suit.

A.

The doctrine of tribal sovereign immunity derives from the status of Indian tribes as “separate sovereigns preexisting the Constitution.” Michigan v. Bay Mills Indian Cmty. , ––– U.S. ––––, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014)

(quoting Santa Clara Pueblo v. Martinez , 436 U.S. 49, 56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) ); see also

Santa Clara Pueblo , 436 U.S. at 55, 98 S.Ct. 1670 (“Indian tribes are ‘distinct, independent political communities, retaining their original natural rights' in matters of local self-government.” (quoting Worcester v. Georgia , 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832), abrogation on other grounds recognized by

Nevada v. Hicks , 533 U.S. 353, 361–62, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) )). “Among the core aspects of sovereignty that tribes possess ... is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’ ” Bay Mills , 134 S.Ct. at 2030 (quoting Santa Clara Pueblo , 436 U.S. at 58, 98 S.Ct. 1670 ). The Supreme Court has characterized that immunity as “a necessary corollary to Indian sovereignty and self-governance,” id. (quoting Three Affiliated Tribes of Fort Berthold Reservation v. World Eng'g, P.C. , 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) ), and we employ a “strong presumption against [its] waiver,” Demontiney , 255 F.3d at 811.

There are only two ways in which a tribe may lose its immunity from suit. Congress may abrogate tribal immunity, because, “[a]s dependents, the tribes are subject to plenary control by Congress.” Bay Mills , 134 S.Ct. at 2030

. Or, of relevance to this appeal, a tribe may itself waive immunity. Okla.

Tax Comm'n v. Citizen Band Potawatomi Indian Tribe (Potawatomi ), 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). It is well settled that “a waiver of [tribal] sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” Santa Clara Pueblo , 436 U.S. at 58, 98 S.Ct. 1670 (quoting United States v. Testan , 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) ).⁷ That expression must also manifest the tribe's intent to surrender immunity in “clear” and unmistakable terms. C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe , 532 U.S. 411, 418, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (quoting Potawatomi , 498 U.S. at 509, 111 S.Ct. 905 ).⁸ Thus, absent a clear and unequivocally expressed waiver by a tribe or congressional abrogation, “[s]uits against Indian tribes are ... barred.”

Potawatomi , 498 U.S. at 509, 111 S.Ct. 905

; see also

Bay Mills , 134 S.Ct. at 2030–31 (“[W]e have time and again treated the ‘doctrine of tribal immunity [as] settled law’ and dismissed any suit against a tribe absent congressional authorization (or a waiver).” (second alteration in original) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc. , 523 U.S. 751, 756, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) )).

B.

The question here is thus whether, by removing this case from state to federal court, the Tribe clearly and unequivocally expressed its intent to waive its immunity from suit. We hold that it did not.

1.

It is undisputed that the Tribe did not expressly state its intent to waive its immunity when it removed the case; to the contrary, it asserted its immunity defense promptly upon removal to federal court and neither it, nor any Defendant, ever voiced an intent to litigate on the merits.⁹ The only way in which removal can constitute a waiver, then, is if the voluntary act of removal is tantamount to an express waiver of tribal immunity. Bodi urges us to hold that it is, but we are not persuaded.

By filing a lawsuit, a tribe may of course “consent[ ] to the court's jurisdiction to determine the claims brought” and thereby agree to be bound by the court's decision on those claims. Rupp v. Omaha Indian Tribe , 45...