Mescalero Apache Tribe v. Rhoades

• Decision Date: 07 December 1990
• Docket Number: Civ. No. 89-0401 JP.
• Citation: 755 F. Supp. 1484
• Parties: MESCALERO APACHE TRIBE, on its own behalf and on behalf of the Individual Members of the Mescalero Apache Tribe, and Lewis LaPaz, Plaintiffs, v. Everett RHOADES, Director Indian Health Services, Josephine T. Waconda, Area Director of Albuquerque Indian Health Services, Department of Health and Human Services, and The United States of America, Defendants.
• Court: U.S. District Court — District of New Mexico

755 F. Supp. 1484

MESCALERO APACHE TRIBE, on its own behalf and on behalf of the Individual Members of the Mescalero Apache Tribe, and Lewis LaPaz, Plaintiffs, v. Everett RHOADES, Director Indian Health Services, Josephine T. Waconda, Area Director of Albuquerque Indian Health Services, Department of Health and Human Services, and The United States of America, Defendants.

Civ. No. 89-0401 JP.

United States District Court, D. New Mexico.

December 7, 1990.

George E. Fettinger, Fettinger & Bloom, Alamogordo, N.M., for plaintiffs.

Marilyn S. Page, U.S. Attorney's Office, Albuquerque, N.M., for defendants.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

The subject of this memorandum opinion and order is "Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment" filed June 5, 1989. After reviewing the memoranda submitted by the parties in conjunction with the motion, and after consulting the applicable authorities, I conclude that defendants' motion should be denied.

I. Background

Plaintiff Lewis LaPaz ("LaPaz") is a member of the Mescalero Apache Tribe ("Tribe") and a resident of its reservation located in Otero County, New Mexico. For the last thirty years LaPaz has served in continuous employment with the U.S. government, since 1967 holding employment with the Indian Health Service ("IHS") as a motor vehicle operator.

The dispute in this case arose out of LaPaz's entry into tribal politics and government, creating an alleged conflict of interest with his federal employment. In 1984, LaPaz successfully sought election to the Mescalero Tribal Council, a position he continues to hold. However, when in the beginning of 1987 the Director of IHS, defendant Everett Rhoades ("Rhoades"), learned of LaPaz's position on the Tribal Council, he directed LaPaz to comply with Department of Health and Human Services's Standards of Conduct and submit a request for approval to engage in "outside activity" as required by 45 C.F.R. § 73.735-708(a)(4). LaPaz submitted the request, and on June 1, 1987 Rhoades denied it, finding the activity incompatible with Department Standards of Conduct. 45 C.F.R. § 73.735-701(a) & (b).

Consequently, the Director of the Albuquerque Area IHS, defendant Josephine T. Waconda ("Waconda"), instructed LaPaz, by memorandum of March 21, 1988, either to resign from the Tribal Council or to submit his resignation from federal employment. By return letter of March 28, 1988, LaPaz rejected either alternative and questioned the Department's finding of conflict of interest under § 73.735-701(a) or (b). Furthermore, LaPaz pointed to § 73.735-904(f), which states that termination should only be permitted when it is clear that no other remedy can be found that would be acceptable to both the Department and the employee and, in any event, should be employed only in the most extreme cases.

After reviewing LaPaz's request for approval and letter dated March 28, 1988, Waconda submitted on May 4, 1988 a memorandum to Rhoades requesting reevaluation of his original decision and recommending approval of LaPaz's outside activity. On October 25, 1988, Waconda wrote to LaPaz informing him that Rhoades had reevaluated LaPaz's request and had reaffirmed his decision to deny it. As grounds for the denial, Waconda's memorandum cited 18 U.S.C. §§ 203 and 205, which make it a crime for a federal employee to serve as an agent for someone before the federal government. The memorandum stated that the steadily increasing contracting activities between IHS and tribal organizations, among other things, make it likely that an individual serving on the tribal council will represent the tribe before the government, in contravention of the above sections. Accordingly, Waconda ordered LaPaz either to resign his council seat or to tender his resignation within fifteen calendar days.

LaPaz filed a grievance under the Department's grievance system, pursuant to U.S. Office of Personnel Management regulations. 5 C.F.R. Part 771(C). In a "Stage 1" grievance petition filed with Rhoades and Waconda on November 8, 1988, LaPaz made the following arguments: (1) no conflict of interest exists; (2) the IHS order is contrary to the Indian Preference Act; (3) the IHS order is an infringement of the constitutional rights of LaPaz and of the sovereign powers of the Tribe; and, (4) LaPaz was denied advice, assistance, and consultation on his rights. By letter dated December 12, 1988, Waconda found no merit to LaPaz's contentions and stated that LaPaz would be considered insubordinate if he continued to disobey her order of October 25, 1988.

On December 20, 1988, LaPaz filed a "Stage 2" grievance petition with Rhoades and Waconda, in which, in addition to restating his original four contentions, he presented his reasons for disagreeing with Stage 1 denial. Again, LaPaz's arguments were found to have no merit when Rhoades denied the Stage 2 grievance petition on February 1, 1989.

Claiming that the February 1, 1989 denial constituted a final agency action, LaPaz, joined by the Tribe, seeks review in this Court. Plaintiffs rely on the following statutes in alleging jurisdiction: (1) 28 U.S.C. §§ 1346, 2671-80, commonly known as the Federal Tort Claims Act; (2) 25 U.S.C. §§ 461 et seq., commonly known as the Indian Reorganization Act and Indian Preference Act; (3) 25 U.S.C. § 450 et seq., commonly known as the Indian Self-Determination and Education Assistance Act; (4) 5 U.S.C. §§ 701-06, commonly known as the Administrative Procedure Act; and (5) 28 U.S.C. Section 1362, providing for district court jurisdiction over civil claims brought by an Indian Tribe wherein the matter arises under the Constitution, laws, or treaties of the United States.

II. Jurisdiction over LaPaz's Claims

No one contests LaPaz's standing in this case. The question that I must address is whether I have jurisdiction to hear his claims. This issue turns on which of two competing bodies of law governs in this instance: on the one hand, the Civil Service Reform Act of 1978 (CSRA), Pub.L. 95-454, 92 Stat. 1111 et seq. (codified in scattered sections throughout Title 5 of the United States Code), denies review to district courts, with specified exceptions;¹ on the other hand, Indian law, in particular the Indian Preference Act, allows for district court review in accordance with the Administrative Procedure Act.

A. Civil Service Reform Act

In examining the legislative history of the CSRA, the U.S. Supreme Court has readily discerned the general intent of Congress in passing the Act. In United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 671, 98 L.Ed.2d 830 (1988), the Court recognized "a leading purpose of the CSRA was to replace the haphazard arrangements for administrative and judicial review of personnel action, part of the `out-dated patchwork of statutes and rules built up over almost a century' that was the civil service system, S.Rep. No. 95-969, p. 3 (1978)." In its place, the CSRA would operate as an integrated and comprehensive management system, with a detailed scheme of administrative and judicial review. Id. at 445, 108 S.Ct. at 671; Lindahl v. Office of Personnel Management, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985). Depending on the status of the employee² and on the type of personnel action,³ the Act provides for differing avenues of review. But, other than those exceptions specified in § 7703(b)(2), none of the avenues passes through the district court.

Outside of the Indian law context, many courts have recognized that the CSRA framework is the exclusive means of relief for federal employees seeking review of and redress for a disputed personnel action. See, e.g., Lindahl, 470 U.S. at 798-99, 105 S.Ct. at 1637-38; Harrison v. Bowen, 815 F.2d 1505, 1516 (D.C.Cir.1987); Weatherford v. Dole, 763 F.2d 392 (10th Cir.1985); Broadway v. Block, 694 F.2d 979 (5th Cir. 1982). But see Dugan v. Ramsay, 727 F.2d 192, 194-95 (1st Cir.1984). In Lindahl, the Supreme Court noted "the Senate Report on the CSRA emphasized that trial-level review of agency action was `appropriate' only where `additional fact-finding' was necessary, and that in all other cases direct appellate review would `merely eliminate an unnecessary layer of judicial review.' S.Rep. No. 95-969, at 52, 63." Id., 470 U.S. at 798, 105 S.Ct. at 1637.

As a federal employee, plaintiff LaPaz's claims would ordinarily fall within the constructs of the CSRA framework. But LaPaz is not just a federal employee, he is also an Indian. Indeed, he is an Indian with a grievance arising from a fundamental Indian statute. Although Congress has given a clear indication of its general intent in enacting the CSRA, it has given no indication that it envisioned the consequent displacement of substantive and thriving Indian law.⁴ And it is that law that I find must govern in this case.⁵

B. The Indian Preference Act

As enacted in 1934, section 12 of the Indian Reorganization Act, which constitutes the Indian Preference Act, states:

The Secretary of the Interior is directed to establish 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.

48 Stat. 986 (1934). At present, the Secretary of the Department of Health and Human Services holds the responsibility for enforcing the Indian Preference Act with regard to the providing of health services to Indians. Pub.L. No. 83-568, 68 Stat. 674 (1954); 42 U.S.C. § 2001 (1976 & Supp. V 1981) (both cited in Preston v. Heckler, 734 F.2d 1359, n. 10 (9th Cir.1984)). Consequently, Indian employees, like LaPaz, who work in the Indian Health Service can rightfully demand all those...