Levy v. Mashantucket Pequot Education Committee, (2019)

• Decision Date: 18 December 2019
• Docket Number: MPTC-CV-AA-2019-127
• Citation: Levy v. Mashantucket Pequot Education Committee (Mashantucket Pequot Tribal Ct. 2019)
• Parties: REBECCA LEVY v. MASHANTUCKET PEQUOT EDUCATION COMMITTEE, ET AL.
• Court: Mashantucket Pequot Tribal Court

REBECCA LEVY v. MASHANTUCKET PEQUOT EDUCATION COMMITTEE, ET AL.

No. MPTC-CV-AA-2019-127

Mashantucket Pequot Tribal Court

December 18, 2019

The Pro Se Appellant, Rebecca Levy

Jared S. Baumgart, Esq., for the Appellee

MEMORANDUM OF DECISION

THOMAS J. LONDREGAN, JUDGE

This case arrives on the docket as an administrative appeal from the Education Committee's denial of tuition benefits for the children of the appellant, Rebecca Levy.The Education Committee of the Mashantucket Pequot Tribe denied the appellant's request for tuition money above the dollar limits set by the Mashantucket Pequot Tribal Council for her two children to attend private school.The appellant has two children, a daughter K--- Levy and a son, C--- Levy.Both children have been enrolled in the Mashantucket Pequot Education Department's scholarship program since 2015.

FACTS

Under the scholarship program guidelines passed by the Tribal Council in 2010(2010 Guidelines), the maximum amount permitted for students between grades 5 - 8 was $20, 000, and the maximum amount for grade 9 - 12 was $30, 000.The Tribal Council amended the scholarship program guidelines in 2018.The maximum amount permitted for students between grades 5 - 8 was reduced to $15, 000, and the maximum amount for grades 9 - 12 was reduced to $20, 000 (the 2018 guidelines).

To understand the appellant's argument, a timeline of events is required.For the school year 2018-2019(and for prior years)the appellant's children were subject to the 2010 guidelines.This appeal does not involve the 2018-2019 school year.In July of 2018, the Tribal Council amended the tuition program and reduced the amounts in the 2010 policy which would affect the current 2019-2020 school year.On September 7, 2018, the Education Department emailed the new guidelines to tribal members.The new guidelines were also posted on the Education Department's Facebook page.In addition, on December 7, 2018 and May 1, 2019, the guidelines were posted on the Tribe's intranet page.In late November or early December, 2018, when the appellant received notice of the amended policy, she filed a grievance with the Mashantucket Pequot Education Committee.On January 30, 2019, the appellant was informed that her grievance hearing with the Education Committee would be held the next day January 31, at the Community Center.The appellant could not attend but was told she could participate by phone.However, when she called in, she was informed the meeting had adjourned.On April 2the appellant received a letter from the Education Committee that her grievance was denied.The Education committee did however state that it did recommend to the Tribal Council that it make an exception to the new tuition cap for "academic excellence."The Tribal Council declined to do so.The appellant filed a Notice of Appeal on April 10 2019.The parties filed briefs with the Court and appeared for oral argument on November 6, 2019.

The appellant's appeal puts forth several arguments that can be summarized as follows:

1.Given the time of the adoption of the new 2018 policy and the length of time for her appeal, she was unable to apply for financial aid directly from the school for the 2019-2020 school year, and therefore has suffered damages.

2.A promise that her children would be grandfathered under the old policy was made by an employee of the Tribe's Education Department in 2016.The employee at that time was the head of the Education Department and told the appellant that her children would stay under the old 2010 policy.

3.The Education Committee should have awarded her children additional tuition for their "academic excellence."

4.The Tribal Council denied her benefits notwithstanding the recommendation of the Education Committee to do so based on the academic achievement of her children.

5.The Education Committee did not follow proper procedure by refusing her the opportunity to speak to the Committee when it deliberated this grievance.

STANDARD OF REVIEW

This appeal is brought under 40 M.P.T.L. entitled "Administrative Procedure Act"(APA).Under the APA, a person dissatisfied with a "Final Decision" of an Agency is entitled to judicial review by the Tribal Court.Id. at ch. 3.The Education Committee is such an agency for purposes of this appeal.In hearing appeals under the APA the Tribal Court's review is limited to the agency record before the court, the briefs filed by the parties and the oral arguments presented by the parties.The Tribal Court must not substitute its judgment for that of the agency as to the weight of the evidence or creditability of any witnesses."The Tribal Court shall affirm the final decision unless the Court finds that the final decision is i. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the Tribal Law; or, ii.In excess of statutory jurisdiction or authority."40 M.P.T.L. ch. 3 § 8(e).The arbitrary, capricious, and abuse of discretion standard has not yet been interpreted by the Mashantucket Pequot Tribal Court in the context of the APA.However, the standard is also found in the employment appeal law, 8 M.P.T.L. ch. 1 § 8(f).Cases decided under Title 8 have considered whether there was "substantial evidence" in the administrative record to support the findings of fact and conclusions drawn therefrom.SeeByron v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 57, 60-61(2013).Federal courts have held that "substantial evidence" means more than a mere scintilla.It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Richardson v. Perales, 402 U.S. 389, 401(1971)(In an administrative appeal from a disability hearing the officer admitted a report by a physician "despite its hearsay . . . and an absence of cross-examination . . . and despite opposing direct medical testimony . . . may constitute substantial evidence . . . .)Id.Numerous employment appeal decisions of the Tribal Court comport with this definition of "substantial evidence."SeeMagee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53(2007);Mashantucket Pequot Gaming Enterprise v. Ju Lian Zheng, 6 Mash.Rep 222, 224(2014);Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 129(2014).

The Court will adopt the "substantial evidence" standard as articulated above.The Court's role is thus limited to determine whether or not there was "substantial evidence" before the education committee such that it did not act "arbitrarily, capriciously or in abuse of its discretion."

DISCUSSION

1.The Inability to Apply for Financial Aid.

At oral argument the Court learned that the Tribal Council has delayed the implementation of the 2018 guidelines for at least one year.The benefits under the 2010 policy guidelines will be awarded for the 2019-2020 school year.This action by the Tribal Council makes moot the appellant's argument that the timing of the new resolution and the decision on her appeal made it impossible for her to apply for financial aid directly from the school.Her children are covered under the 2010 policy for the 2019-2020 school year, which renders the first reason for her appeal moot.Also rendered moot for any claim of damages is the appellant's claim that the Education Committee did not follow proper procedure in deciding her appeal.

At this time the appellant has suffered no immediate damages because the 2019-2020 school year is under the prior policy.Nonetheless, the appellant's other arguments, such as her assertion that her children should be grandfathered, are viable arguments and are not rendered moot by the 2018 policy because they may arise in future school years.

2.The Promise to be Grandfathered Under Prior Guidelines.^[1]

The plaintiff's claim that a member of its Education Department could bind the Education Committee and the Tribal Council implicates the sovereign immunity of the Tribe.Unless the Tribal Council bestowed actual authority on the Education Department or an official of the Education Committee to grandfather the Levy children under the 2010 policy (notwithstanding the Tribal Council's resolution amending that policy), any such promise to grandfather the children would be void as a matter of law under the principles of sovereign immunity.From a search of the record, the Court finds that the Tribal Council did not delegate a determination of which children of the Tribe could be grandfathered under the 2010 policy to the Education Committee nor to any members of the Education Committee.There is nothing in the record which gives actual authority or apparent authority to anyone for this proposition.Therefore, this claim must be dismissed under the principles of sovereign immunity.Sovereign immunity is based on the proposition that Indian tribes are "domestic dependent nations" that enjoy sovereign immunity like other governments.SeeOklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma,498 U.S. 505, 509(1991).Otherwise, tribes would be subject to suits that any employee or official promised something under theories of apparent authority and estoppel.Such claims and suits against a tribe would hamper tribal governments.Federal Native American law specifically rejects such causes of action.SeeMichigan v. Bay Mills Indian Community134 S.Ct. 2024, 2030(2014)(holding that tribes enjoy the same common law immunity from suit that other sovereign powers do).

3.Academic Excellence as Grounds to Avoid Tribal Policy.

While the Tribal Council's action in delaying the implementation of the 2018 guidelines would also make moot the Education Committee's denial of benefits for the 2019-2020 school year based on academic excellence, the Court will address...