Indian Educators Fedn. Local 4524 v. Kempthorne

• Decision Date: 31 March 2008
• Docket Number: Civil No. 04-01215 (TFH).
• Citation: 541 F.Supp.2d 257
• Parties: INDIAN EDUCATORS FEDERATION LOCAL 4524 OF the AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Plaintiff, v. Dirk KEMPTHORNE, Secretary, United States Department of the Interior, Defendant.
• Court: U.S. District Court — District of Columbia

541 F.Supp.2d 257

INDIAN EDUCATORS FEDERATION LOCAL 4524 OF the AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Plaintiff, v. Dirk KEMPTHORNE, Secretary, United States Department of the Interior, Defendant.

Civil No. 04-01215 (TFH).

United States District Court, District of Columbia.

March 31, 2008.

Richard Joseph Hirn, Richard Hirn, Attorney at Law, Washington, DC, for Plaintiff.

Judry Laeb Subar, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

THOMAS F. HOGAN, Chief Judge.

Pending before the Court is the Motion For Summary Judgment [Docket No. 12] filed by the plaintiff, Indian Educators Federation, as well as a Motion To Dismiss Or, In The Alternative, For Summary Judgment [Docket No. 15] that was filed by the defendant, Secretary of the Interior Dirk Kempthorne. At issue in this case is the scope of Section 12 of the Indian Reorganization Act of 1934, 25 U.S.C. § 472 (1976), and whether the Act mandates employment preferences for American Indians employed in any position in the Interior Department that directly and primarily relates to the provision of services to American Indians. For the following reasons, the Court will grant in part the plaintiffs Motion for Summary Judgment and deny the defendant's Motion To Dismiss Or, In The Alternative, For Summary Judgment.

I. BACKGROUND

This civil lawsuit was commenced by the Indian Educators Federation ("IEF"), which describes itself as "a professional association, labor union and civil rights organization [that] represents employees of the Office of Special Trustee and the Bureau of Indian Affairs." Mem. of P & A In Supp. Of Pl.'s Mot. For Summ. J. 1 (hereinafter "Pl.'s Mot. For Summ. J."). IEF is suing Dirk Kempthorne in his official capacity as Secretary of the United States Department of the Interior (the "Interior Department") on the grounds that IEF is entitled to a declaratory judgment that (1) the agency must give preference to qualified American Indians when filling all employment vacancies involving positions that directly and primarily relate to the provision of services to American Indians and (2) the agency's implementation of a rule that was proposed on July 12, 1996 violates the rule-making provisions of the Administrative Procedures Act. Pl.'s Second Amended Compl. For Decl. & Injunctive Relief 14 ¶¶ a-b; Pl.'s Mot. For Summ. J. 45. IEF also seeks an injunction against the Secretary to prohibit the agency from "failing to provide qualified Indians with preference when filling all vacant positions within the Office of Special Trustee for American Indians and the Office of the Assistant Secretary for Indian Affairs and all other positions in the Department [that] directly or primarily relate to the providing of services." Pl.'s Second Amended Compl. For Decl. & Injunctive Relief 14 ¶ c; Pl.'s Mot. For Summ. J. 45.

IEF's claim is premised on a statute Congress enacted in 1934 called the Indian Reorganization Act, which is codified at 25 U.S.C. §§ 461 et seq. The purpose of this statute "was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically." Morton v. Mancari, 417 U.S. 535, 542, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Section 12 of the Indian Reorganization Act, referred to colloquially as the "Indian preference,"¹ directs the Secretary of the Interior to:

[E]stablish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.

25 U.S.C. § 472 (2000) (emphasis added). The dispute in this case is focused on the meaning of the term "Indian Office" in the quoted section of the Act. IEF contends that the term "Indian Office" should be interpreted to mean any position at the Interior Department that "directly and primarily relate[s] to the providing of services to Indians." Pl.'s Mem. Supp. Summ. J. 7-14, 32-35. The Interior Department, however, disagrees that the term should be construed so broadly. Instead, the Interior Department asserts that it correctly "construes the term `Indian Office' to mean a specific office — the Bureau of Indian Affairs — and applies the preference to jobs in the BIA, and to positions in organizational subparts of the BIA that have moved intact to other parts of the Interior Department." Def.'s Mot. To Dismiss Or In The Alternative For Summ. J. 13-14 (hereinafter "Def.'s Mot.").

To place the parties' dispute in context requires an account of the Interior Department's historical interpretation of Section 12. It appears that at least prior to September 20, 1977, the Interior Department interpreted Section 12's Indian preference to apply to positions in the Bureau of Indian Affairs and positions transferred from the Bureau to other offices within the Interior Department, as evidenced by a September 20, 1977 letter from Deputy Comptroller General R.F. Keller to the Chair of a House of Representatives Subcommittee on Compensation and Employee Benefits, which stated that "the Department of the Interior treats the Indian preference as incident to particular functions and considers that the preference continues to apply when such a function is transferred from the jurisdiction of the Bureau of Indian Affairs (BIA) to another office within the Department of the Interior." Pl.'s Mot. For Summ. J. Appendix 1 (Letter from Keller to Chair of 9/20/77). In that letter, the Deputy Comptroller General considered whether the Interior Department was correctly applying Section 12's Indian preference to positions transferred from the Bureau of Indian Affairs to other offices in the Department and noted that the Interior Department was properly relying on a Civil Service Commission regulation that applied the preference to "other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians." Id. at A-2 ("Thus, the Department of the Interior's construction of the Indian preference as applicable to BIA and to positions within the Department other than those within the BIA is consistent with applicable CSC regulations."). The Deputy Comptroller General then went on to consider whether the Civil Service Commission regulation properly interpreted the term "Indian Office" and ultimately concluded that:

The broader construction of the Indian preference as applicable to all positions within the Department of the Interior "directly and primarily related to the providing of services to Indians" adopted by the Civil Service Commission more fully gives effect to the purpose of the Indian preference than does a construction which would limit its application to positions within the Bureau of Indian Affairs.

Id. at A-10 (quoting 5 C.F.R. § 213.3112(a)(7)). Again, though, the issue presented to the Comptroller General was limited to whether the Interior Department was correctly applying the Indian preference to positions transferred from the Bureau of Indian Affairs to other offices in the Department.

Two years later, Interior Department Solicitor Leo Krulitz was confronted with the broader question of whether Section 12's Indian preference applied to positions in two new offices that were never part of the Bureau of Indian Affairs, namely the Office of Policy, Planning and Evaluation and the Office of Administrative Oversight, both of which reported to the Assistant Secretary of Indian Affairs. Id. at A-12 (Mem. from Krulitz to Secretary of 6/13/79). In his memorandum to the Secretary of the Interior Department, Solicitor Krulitz adopted the Comptroller General's previous analysis and stated that "[i]t is my opinion that [the Comptroller General's] interpretation is consistent with the purpose for which § 12 was enacted, and that applying preference within the Department outside BIA to positions directly and primarily related to the providing of services to Indians is legally justifiable." Id. at A-13. Solicitor Krulitz further stated, however, that he thought the Civil Service Commission regulation's application of the Indian preference to positions "directly and primarily related to the providing of services to Indians" was too stringent. Id. After acknowledging "the ambiguity in § 12 created by the use of the term `Indian Office[,]'" Solicitor Krulitz resorted to the legislative history of the statute to determine Congress' intent. Id. at A14-15. Although initially suggesting that the standard was more limiting than he preferred, he nevertheless determined that the statute's legislative history supported the conclusion that "the purpose of § 12 would be served" by "having employment preference apply to whatever positions within the Interior which directly and primarily relate to Indians." Id. at A-14 & 15. He also rejected the notion that positions in the Interior Department could be exempt from the Indian preference if the positions were not funded by the Bureau of Indian Affairs. Id. at A-16.

Nearly seven years later, Acting Associate Solicitor Timothy Elliott once again addressed questions about the application of Section 12's Indian preference in a memorandum to the Director of the Office of Information Resources Management at the Interior Department. Id. at A-21 (Mem. from Elliott to Director of 5/6/86). At that time, Acting Associate Solicitor Elliott responded to a request for advice about "how Indian preference and the Buy Indian Act may impact upon the Department's plan to consolidate many administrative services across bureau lines." Id. Acting Associate Solicitor Elliott discussed Solicitor Krulitz's 1979 opinion adopting the Comptroller General's 1977 opinion and observed that, shortly...