Ramey Const. Co., Inc. v. Apache Tribe of Mescalero Reservation, s. 78-1376

• Decision Date: 22 March 1982
• Docket Number: 81-1129,Nos. 78-1376,s. 78-1376
• Citation: 673 F.2d 315
• Parties: RAMEY CONSTRUCTION COMPANY, INC., a Texas corporation, Plaintiff-Appellant, v. The APACHE TRIBE OF the MESCALERO RESERVATION, an incorporated Indian tribe or association in the nature of a non-profit corporation localized in the State of New Mexico; the Mescalero Apache Tribe, Inc., an incorporated Indian tribe localized in the State of New Mexico; the Inn of the Mountain Gods, a tribal chartered corporation or economic organization localized in the State of New Mexico; Boyle Engineering Corporation, a California corporation; and Highlands Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 315

673 F.2d 315

RAMEY CONSTRUCTION COMPANY, INC., a Texas corporation, Plaintiff-Appellant, v. The APACHE TRIBE OF the MESCALERO RESERVATION, an

incorporated Indian tribe or association in the nature of a

non-profit corporation localized in the State of New Mexico;

the Mescalero Apache Tribe, Inc., an incorporated Indian

tribe localized in the State of New Mexico; the Inn of the

Mountain Gods, a tribal chartered corporation or economic

organization localized in the State of New Mexico; Boyle

Engineering Corporation, a California corporation; and

Highlands Insurance Company, Defendants-Appellees.

Nos. 78-1376, 81-1129.

United States Court of Appeals, Tenth Circuit.

March 22, 1982.

B. Warren Hart, St. Paul, Minn. (John M. Harens, St. Paul, Minn., with him on the brief), Moore, Costello & Hart, St. Paul, Minn. (and Dee D. Miller of Miller, Baker, Russell & Shackelford, Amarillo, Tex., with him on the brief), in No. 78-1376; John M. Harens, and David A. Kastelic of Moore, Costello & Hart, St. Paul, Minn., and Dee D. Miller of Miller, Baker, Russell & Shackelford, Amarillo, Tex., on the briefs in No. 81-1129, for plaintiff-appellant.

George E. Fettinger, Alamogordo, N.M. (Kim Jerome Gottschalk, Alamogordo, N.M., on the brief in both cases), Fettinger & Bloom, Alamogordo, N.M., for defendants-appellees Apache Tribe of the Mescalero Reservation, the Mescalero Apache Tribe, Inc., and the Inn of the Mountain Gods.

Frank H. Allen, Jr., Albuquerque, N.M. (Ruth M. Schifani, Albuquerque, N.M., on the brief in both cases), Modrall, Sperling, Roehl, Harris & Sisk, P. A., Albuquerque, N.M., for defendant-appellee Boyle Engineering Corp.

Robert D. Taichert of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., on the briefs in both cases, for defendant-appellee Highlands Insurance Co.

Before BARRETT and McKAY, Circuit Judges, and BRIMMER, District Judge. ^*

McKAY, Circuit Judge.

In 1972 the Mescalero Apache Tribe began construction of a ten million dollar resort hotel complex called the Inn of the Mountain Gods on its reservation in New Mexico for which Ramey Construction Company was the general contractor. After the project was completed in mid-1975, Ramey filed a complaint in the United States District Court for the District of New Mexico against various Tribal Defendants ¹ and Boyle Engineering Corporation, the project's architect and engineer. Ramey sought to recover approximately $427,000 of contract retainage withheld by the Tribe, as well as interest on that amount. ² In addition, Ramey alleged that the Tribal Defendants had breached their contract with Ramey, causing damages due to disruption, delay, improper suspension of work, and undisclosed subsoil problems. Ramey also alleged that Boyle and the Tribe had misrepresented that Boyle would perform as project manager. Ramey further alleged that Boyle misrepresented the date on which the construction site would be ready for Ramey to begin work, and that Boyle was negligent in the performance of its duties, particularly project design and management.

The district court found that it had jurisdiction over the Tribal Defendants, but ruled against Ramey on the merits, adopting verbatim the defendants' proposed findings of fact and conclusions of law. Plaintiff appealed and this court remanded the case to the district court for "significantly new, more detailed findings." Ramey Construction Co. v. Apache Tribe of the Mescalero Reservation, 616 F.2d 464, 468 (10th Cir. 1980). On remand the district court reversed its earlier denial of the Tribe's motion to dismiss for lack of jurisdiction, and dismissed the Tribal Defendants from the case. The district court also concluded, as it had before, that Boyle was not guilty of any negligence, misrepresentations, negligent misrepresentations or other defaults causing damages to Ramey. The district court judge on remand complied with this court's previous mandate by supporting his decision with adequate findings of fact and conclusions of law.

Ramey now appeals alleging: (1) that the district court erred in reconsidering the issues of jurisdiction and sovereign immunity; (2) that even if such a reconsideration were appropriate, the court erred in concluding that the Tribal Defendants were immune from suit and that the court lacked jurisdiction over the subject matter of the action; (3) that the Tribal Defendants owe Ramey $65,000 in interest on the contract retainage; and (4) that the court erred in concluding that Boyle was not guilty of negligence, misrepresentations, or negligent misrepresentations that caused Ramey damage.

I. Reconsideration of Jurisdiction on Remand

Ramey argues that the district court had no power to reverse its earlier judgment that the court had jurisdiction over the Tribal Defendants and that they were not sovereignly immune from suit. In particular, Ramey alleges (1) that the district court exceeded the scope of this court's remand by raising the jurisdictional issue, and (2) that the Tribe was precluded from raising this issue on remand because it failed to cross-appeal the district court's denial of its motion to dismiss. Neither of these contentions has merit.

In Ramey Construction Co. v. Apache Tribe of the Mescalero Reservation, 616 F.2d 464 (10th Cir. 1980), this court remanded the case for a full reconsideration and adoption of appropriate findings at each level of analysis. Our determination at that time was that the lower court's findings of fact and conclusions of law were inadequate on all issues. The absence of findings concerning the issue of tribal sovereign immunity was specifically noted. Id. at 467-68 & n.5. This court's action can only be construed as a general remand requiring the district court to comply fully with Rule 52 of the Federal Rules of Civil Procedure. See id. at 466-67. Therefore, the district court did not exceed the scope of our remand by reconsidering the sovereign immunity issue.

The fact that the Tribal Defendants did not cross-appeal the sovereign immunity ruling after they had prevailed on the merits does not foreclose reconsideration of that issue on remand. The issue of sovereign immunity is jurisdictional. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654, at 156-58 (1976); People ex rel. California Department of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153, 1154 & n.1 (9th Cir. 1979). So long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the proceedings either by the parties or by the court on its own motion. 1 Moore's Federal Practice P 0.60(4) (2d ed. 1981). Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that "(w) henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Therefore, the court did not err in reconsidering this issue, and the court's finding of tribal sovereign immunity must stand unless it affirmatively appears that there has been a congressional or tribal waiver of immunity.

II. Jurisdiction over the Tribal Defendants

Ramey alleges a congressional waiver of sovereign immunity under the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1341, because the Tribal Defendants deprived it of equal protection of the laws and due process of law by (1) denying it access to tribal courts, and (2) wrongfully withholding the contract retainage. In particular, Ramey cites § 1302 of the Act, which provides No Indian tribe in exercising powers of self-government shall-

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.

Because of the alleged deprivation of rights guaranteed by the ICRA, Ramey asserts that the district court had jurisdiction over its claims by virtue of either 28 U.S.C. § 1343(a)(4), conferring jurisdiction over federal laws protecting civil rights, or § 1331, which confers jurisdiction over matters arising under the laws of the United States. ³

In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Supreme Court clarified the meaning and effect of § 1302 of the ICRA. The Court made clear that, aside from authorizing writ of habeas corpus actions as provided in § 1303, the ICRA leaves tribal sovereign immunity intact. Id. at 59, 98 S.Ct. at 1677. In this action, Ramey has alleged a claim for damages based on breach of contract. This type of injury does not rise to the level of a constitutional deprivation to be redressed under the ICRA. ⁴ Therefore, the ICRA neither provides a jurisdictional basis for Ramey's claims nor waives the Tribe's sovereign immunity.

Ramey claims that even if the Tribal Defendants were sovereignly immune from suit, they waived that immunity by one or all of the following actions: (1) agreeing to an attorneys' fees clause in the contract; (2) entering into a loan agreement with the Bank of New Mexico obligating the Tribe to "duly pay and discharge ... all claims of any kind ..."; (3) submitting a certificate to the United States Economic Development Agency stating that the contract documents "constitute valid and legally binding obligations upon the parties ..."; (4) obtaining payment and performance bonds from a surety; (5) consenting to partial summary judgment with respect to the contract retainage; and (6) including a "sue and be sued" clause in its tribal corporate charter.

"It is settled that a waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.' " Santa Clara Pueblo v. Martinez, 436 U.S. at 58, 98 S.Ct. at 1677 (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976)). The first four grounds upon which Ramey premises its claim of a waiver of sovereign immunity are simply attempts by Ramey to imply a waiver when no express waiver exists. There is no evidence that the Tribe expressly...