Winnebago Tribe of Nebraska v. Babbitt

• Decision Date: 17 January 1996
• Docket Number: No. CIV 95-1042.,CIV 95-1042.
• Citation: 915 F. Supp. 157
• Parties: WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. Bruce BABBITT, Secretary of the Department of Interior, sued in his official capacity, Defendant.
• Court: U.S. District Court — District of South Dakota

915 F. Supp. 157

WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. Bruce BABBITT, Secretary of the Department of Interior, sued in his official capacity, Defendant.

No. CIV 95-1042.

United States District Court, D. South Dakota, Northern Division.

January 17, 1996.

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Vernle C. Durocher, Jr. and Clifford S. Anderson, Dorsey & Whitney P.L.L.P., Minneapolis, MN, Kennith L. Gosch, Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, SD, for plaintiff.

James J. Gilligan, United States Department of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

KORNMANN, District Judge.

INTRODUCTION

Plaintiff filed a complaint and motion for injunctive relief on November 17, 1995, seeking a temporary restraining order, a writ of mandamus, and permanent injunctive relief enjoining the Bureau of Indian Affairs (BIA) from enforcing hiring freezes or reduction in force (RIF) notices to employees at the Winnebago, Nebraska, agency and from implementing any new hiring freezes or issuing new RIF notices without engaging in prior meaningful consultation. The Winnebago Tribe of Nebraska (tribe) maintains the BIA was required to consult with the tribe prior to instituting a hiring freeze or issuing RIF notices.

This matter came on for hearing on November 30, 1995. Prior to the hearing, the Court was advised that the RIF terminations of employment had been delayed from December 16, 1995 until January 2, 1996. News reports indicate the RIF has been further delayed until February. Counsel have not communicated such fact to the Court.

BACKGROUND

The facts in this case are substantially similar to the facts in Lower Brule Sioux Tribe v. Ada Deer, 911 F.Supp. 395 (S.D. 1995). As in Lower Brule, the Winnebago, Nebraska, agency is a local agency within the Aberdeen Area. There are thirty-seven (37) authorized BIA positions in the Winnebago local agency. On March 13, 1995, the Secretary of the Department of Interior issued a department-wide hiring freeze in anticipation of a reduced budget. Acting on the Secretary's instructions, Hilda Manuel, the Deputy Commissioner of Indian Affairs, Bureau of Indian Affairs, issued a notice to all area directors advising them of the freeze. The freeze affected eight (8) positions at the Winnebago agency: two (2) police officers, three (3) secretaries, an administrative file clerk, a contract specialist, and a property clerk.

On June 21, 1995, the Assistant Secretary, Policy, Management & Budget, issued a memorandum to all Department of Interior employees notifying them that a RIF must be planned. The Department did not consult as to this RIF with any tribe. On July 18, 1995, the House of Representatives passed a Department of Interior appropriations bill which reduced funding for the BIA $50 million below the FY 1995 budget. The Department did not consult with plaintiff in response to the possible budget cut. On August 9, 1995, the Senate passed an appropriations bill (the Senate mark) which reduced BIA funding $270 million below BIA's FY 1995 budget. The Senate mark proposed a $206 million cut in Tribal Priority Allocations (TPA), which covers funding for human services, education, public safety and trust management programs.

On August 25, 1995, Hilda Manuel sent a memorandum to all area directors and agency superintendents, notifying them that with the pending possibility of a RIF, they were to notify employees to make sure their employment records were accurate and up to date (to correctly reflect their seniority, educational attainments, performance ratings, and preferences). Again, the BIA failed to consult with any tribe, despite other preparations for the RIF. On August 28, 1995, Hilda Manuel, in response to the Senate mark, held a conference call with all area office directors notifying them the decision had been made to implement a bureau-wide RIF. Despite setting forth very specific directions in implementing the RIF in her August 31, 1995, memorandum to the area office directors, she made no mention of consulting with any tribe.

On August 29, 1995, Joe B. Walker, then acting Area Director for the Aberdeen Area, held a conference call with the Aberdeen Area agency superintendents, including Russell Bradley, Winnebago Agency Superintendent. Walker followed that conference call with a memorandum on August 30, 1995, directing the local agency superintendents to prepare retention registers and to submit budget information and organizational charts by August 31, 1995. The Aberdeen Area's "re-engineering team," out of the Aberdeen office, sent a proposed organizational chart to the Winnebago superintendent.

The Aberdeen Area office determined, without consulting with plaintiff, that twelve (12) positions were to be eliminated at the Winnebago agency. These twelve positions included the eight positions which were previously the subject of a hiring freeze, along with two secretaries, one of whom provides support services for the police department, the only heavy mobile equipment operator (roads), and a program assistant. In addition, three other employees were given notice of displacement because three of the employees whose positions were abolished were entitled to bump other employees with less seniority.

Superintendent Bradley sent a memo to Acting Director Walker on September 11, 1995, complaining about the proposed abolishments, stating the "re-engineering team is creating Agency's sic based upon unknown criteria and their version of Agency/Tribal relations." Bradley also complained the team's proposed cuts were not conducive to BIA/Tribal relations.

On September 12, 1995, Hilda Manuel advised all area directors she expected full and complete cooperation in the decision to implement the RIF despite "the precarious position inherent in the decision to move forward without consulting with the Tribes." Ms. Manuel also expressed her dissatisfaction with some area directors' proposals to abolish police officers, among other positions, in key program areas in Trust and Indian Services programs. On September 18, 1995, the House-Senate conference passed a Department of Interior appropriation bill reducing the cut to approximately $117 million. Under the conference legislation, sufficient funds would be restored to the Winnebago agency to retain all positions that were described in the RIF. Hilda Manuel, on October 3, 1995, issued a memo to all area directors stating that, due to the delay in the 1996 appropriations bill, there existed an opportunity to consult. Area directors were directed to consult with the tribes, giving them an opportunity to reflect their priorities in the distribution of the RIF. No consultation followed with the Winnebago tribe. Acting Director Walker contacted all agency superintendents, including Bradley, advising them to consult with the tribes. The tribes were to be given an opportunity to shift the funds within the TPA programs to insert funds into programs where BIA employees had been selected for RIF, thereby making it possible to retain those positions if the tribes wished. The superintendent at Winnebago delayed consulting with the tribe. Hilda Manuel notified then Acting Director Walker that the Aberdeen personnel office's RIF plan had been approved and authorized the RIF notices to be issued on October 11, 1995.

On October 14, 1995, RIF notices were issued to the four Winnebago agency employees set forth above, along with the three "bump notices". Finally, on November 1, 1995, Bradley initiated "consultation" with the tribe, after the decision had already been made as to which positions would be eliminated. On November 20, 1995, Hilda Manuel delayed the effective date of employee terminations of employment to January 2, 1996. The Court takes judicial notice that no employees will be terminated pursuant to the RIF until February of 1996.

DISCUSSION

I. JURISDICTION

"Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Marine Equipment Management Co. v. U.S., 4 F.3d 643, 646 (8th Cir.1993), citing Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501, reh'g denied 476 U.S. 1132, 106 S.Ct. 2003, 90 L.Ed.2d 682 (1986), citing in turn Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). "The threshold inquiry in every federal case is whether the court has jurisdiction" and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir.1964); Sanders v. Clemco Industries 823 F.2d 214, 216 (8th Cir.1987).

A. BASIS

The tribe seeks an injunction pursuant to Fed.R.Civ.P. 65 and mandamus pursuant to 28 U.S.C. § 1361. The tribe claims subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361 (writ of mandamus) and 28 U.S.C. § 1362 (civil action brought by an Indian tribe). This Court held in Lower Brule at 397-98 that jurisdiction was proper under the three foregoing statutes and so holds herein.

B. RIPENESS

Defendant contends this matter is not ripe for adjudication because the actual terminations of employment would not occur until January 2, 1996 (now moved to February of 1996). Further, if the conference committee budget is passed, no RIF would be necessary at the Winnebago office.

Article III of the United States Constitution imposes a "case or controversy" requirement upon the federal courts. Ripeness is one such doctrine to determine justiciability. Schanou v. Lancaster County School District No. 160, 62 F.3d 1040, 1042 (8th Cir.1995). The "ripeness doctrine is drawn from constitutional limitations of Article III on judicial power as well as discretionary reasons of policy for refusing to exercise jurisdiction. It...