Equal Employment Opportunity Comm'n v. Karuk Tribe Hous. Auth.

• Decision Date: 13 August 2001
• Docket Number: No. 00-16181,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-16181
• Citation: 260 F.3d 1071
• Parties: (9th Cir. 2001) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,v. KARUK TRIBE HOUSING AUTHORITY, OPINION
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1071

260 F.3d 1071 (9th Cir. 2001)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF-APPELLEE v. KARUK TRIBE HOUSING AUTHORITY, OPINION DEFENDANT-APPELLANT

No. 00-16181

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 11, 2001

Filed August 13, 2001

[Copyrighted Material Omitted]

Counsel: Robert M. Liechty and David Heisterkamp II (argued), Wagenlander and Heisterkamp, Llc, Denver, Colorado, for the defendant-appellant.

Barbara L. Sloan, Equal Employment Opportunity Commission, Washington, Dc, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding D.C. No. CV-99-00196-MMC

Before: James C. Hill, ^* Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge

This case raises issues at the intersection of administrative, Indian, and anti-discrimination law. We must decide whether the district court properly enforced an administrative subpoena issued to an Indian tribe in connection with an age-discrimination investigation. Robert Grant, a member of the Karuk Tribe ("the Tribe") and an employee of the Karuk Tribe Housing Authority (the "Housing Authority"), filed an administrative complaint with the Equal Employment Opportunity Commission (the "EEOC"), alleging that he had been terminated because of his age. The EEOC opened an investigation and issued a subpoena to the Tribe, which refused to comply on the grounds that the Age Discrimination in Employment Act, 29 U.S.C. §§§§ 621-34 (the"ADEA"), does not apply to Indian tribes, and that the Tribe enjoys sovereign immunity from the EEOC investigation.

The EEOC sought judicial enforcement of the subpoena. The district court issued an order enforcing the subpoena, from which the Tribe now appeals. We reverse.

The threshold question is whether the Tribe is immune from suit. We conclude that it is not. We next address whether the Tribe is subject to the ADEA in these circumstances. We conclude that it is not. Resolution of this issue is a pure question of law that is currently ripe for review and, therefore, is best resolved at the subpoena-enforcement stage, rather than in potential downstream litigation. To hold otherwise would frustrate the regulatory scheme, ignore the special status of the Tribe, and subject the Tribe to an unnecessary compliance burden. Thus, because the ADEA does not apply to the Tribe's employment relationship with Grant, we conclude that the Tribe need not comply with the subpoena.

BACKGROUND

The Karuk Tribe Housing Authority owns 100 low-income housing units on tribal trust land in Northern California. The Tribe does not have its own reservation but instead occupies land held in trust by the United States. The Housing Authority, organized and authorized through a tribal ordinance, is a governmental arm of the Tribe. The Housing Authority, which provides safe and affordable housing to members of the Tribe, receives funding under the Native American Housing Assistance and Self-Determination Act, 25 U.S.C.§§§§ 4101-12. This legislation, passed in 1996, was particularly concerned with "the right of Indian self-determination and tribal self-governance." Id. §§ 4101(7). Although there is no formal requirement that only Tribe members may occupy the units, according to the Vice-Chairman of the Karuk Tribe and Acting Executive Director of the Karuk Tribe Housing Authority, ninety-nine of the units are occupied by Indian families. The record does not reveal how many of the Indians who occupy the units are members of the Tribe. According to the district court's order enforcing the subpoena, the Housing Authority employed twenty Indians and four non-Indians.

Grant, an enrolled member of the Tribe, worked as a maintenance supervisor for the Housing Authority for almost seven years, until he was terminated in November 1997. He was fifty-three years old at the time of his termination. Grant challenged his firing in internal tribal administrative proceedings, which are governed by written policies and procedures. After a hearing, the Board of Commissioners upheld the Housing Authority's actions. Grant further appealed to the Tribal Council, the highest governing body of the Tribe, which rejected his claim as well.

In February 1998, Grant filed a "Charge of Discrimination" with the EEOC on a standard form, alleging that he had been terminated because of his age.² The EEOC subsequently opened an investigation based on its purported authority under 29 U.S.C. §§ 626(a). Section 626(a) provides,"The Equal Employment Opportunity Commission shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of this chapter in accordance with the powers and procedures provided in sections 209 and 211 of this title." Section 211(a), which is relevant here, provides,

The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter.

The EEOC served on the Tribe a copy of the charge, along with a request for a written position statement and a list of questions. The Tribe responded that it would not provide the information, based on its position that the ADEA does not apply to Indian tribes. In March 1999, the EEOC served on the Housing Authority's custodian of records an administrative subpoena seeking various employment records. The Tribe responded with a letter explaining that it would not provide the requested information, again based on its view that the EEOC does not have jurisdiction over Indian tribes.

The EEOC filed an application to enforce the administrative subpoena in the United States District Court for the Northern District of California. The district court held that "the EEOC has jurisdiction over Indian tribes for the purpose of enforcing the ADEA," granted the EEOC's application, and issued an enforcement order. The Tribe timely appealed. We have jurisdiction under 28 U.S.C. §§ 1291, and we reverse.

DISCUSSION

I. TRIBAL SOVEREIGN IMMUNITY

As a threshold matter, we first address the Tribe's contention that it enjoys sovereign immunity from the EEOC's inquiry and thus from this lawsuit. It is true that Indian tribes do, as a general rule, enjoy sovereign immunity from private lawsuits. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Indian tribes do not, however, enjoy sovereign immunity from suits brought by the federal government. Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459-60 (9th Cir. 1994); United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir. 1986); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 383 (8th Cir. 1987) ("We conclude that just as a state may not assert sovereign immunity as against the federal government, [United States v.] Mississippi, 380 U.S. [128], 140-41 [(1965)], neither may an Indian tribe, as a dependent nation, do so. Tribal sovereign immunity may not be asserted against the United States . . . ." ); William C. Canby, Jr., American Indian Law 88 (3d ed. 1998) ("Tribes are not immune from suits by the United States.").

The Tribe attempts to circumvent the clear rule that Indian tribes do not enjoy sovereign immunity against suits brought by the federal government by arguing that, for these purposes, the EEOC "is merely a federal commission and does not act as the United States itself." This argument finds no support. The EEOC is an entity created by Congress and is specifically authorized by statute to enforce the ADEA, through both administrative action and litigation. 29 U.S.C.§§ 626. We know of no principle of law (and the Tribe does not cite any) that differentiates a federal agency such as the EEOC from "the United States itself" for the purpose of sovereign immunity analysis.

II. ADMINISTRATIVE SUBPOENA ENFORCEMENT

It bears repeating that we are not confronted here with an age-discrimination suit brought under the ADEA. Rather, the parties to this action have only reached the investigative stage, and this litigation is a suit to enforce an administrative subpoena. Before considering the applicability of the ADEA to the Tribe, therefore, we must first determine whether we should reach that question at this stage of the proceedings.

We begin with the Supreme Court's decision in Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943). In Endicott Johnson, Secretary of Labor Frances Perkins issued an administrative subpoena to the petitioner, a government contractor, in the course of an investigation to determine whether the petitioner had violated the Walsh-Healey Act. Id. at 505-07. Notably, the Walsh-Healey Act "applies only to contractors who voluntarily enter into competition to obtain government business on terms of which they are fairly forewarned by inclusion in the contract." Id. at 507. The petitioner argued that he was not required to comply with the subpoena because the alleged violations of the Act occurred in plants that were not involved in government work and, therefore, were not covered by the Act. Id. at 505-07. Stating that "[t]he evidence sought by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the Secretary in the discharge of her duties under the Act," the Supreme Court concluded that the subpoena should be enforced and that the question whether the Secretary had identified true violations of the Act could be resolved at a later stage of the proceedings. Id. at 508-09.

The principle of ...