BETTOR RACING, INC.; J. Randy Gallo, Plaintiffs-Appellants v. NATIONAL INDIAN GAMING COMMISSION, Defendant-Appellee Flandreau Santee Sioux Tribe, Intervenor-Defendant-Appellee.
No. 15-1335.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 20, 2015. Filed Jan. 29, 2016.
812 F.3d 648
Before MURPHY, COLLOTON; and BENTON, Circuit Judges.
Saylor. Walton, 752 F.3d at 1116. Based on these findings, it would be possible to conclude that the defendants “actually knew of, and [were] deliberately indifferent to or tacitly authorized” constitutionally deficient medical care for Saylor. McDowell, 990 F.2d at 435. The facts relevant. to qualified immunity are genuinely disputed, precluding summary judgment on this basis. I would therefore affirm the district court‘s denial of summary judgment as to Saylor‘s Eighth Amendment deliberate indifference claim.
With regard to Saylor‘s First and Fourteenth Amendment claims, the district court did not make any factual determinations or conduct the required “thorough determination” of the defendants’ entitlement to qualified immunity. See Payne, 749 F.3d at 701 (quoting O‘Neil, 496 F.3d at 918). Without the district court‘s factual findings, we have no basis for our review of the grant or denial of qualified immunity. Therefore, when the district court fails or refuses to rule on qualified immunity, “our court only exercises its jurisdiction to compel the district court to decide the qualified immunity question.” Id. I would remand Saylor‘s First and Fourteenth Amendment claims to
Meredith A. Moore, argued, Sioux Falls, SD, for Plaintiffs-Appellants.
Patrick R. Bergin, argued, Sacramento, CA, Allen M. Brabender, argued, Washington, DC, Gregory M. Narvaez, Tim Hennessy, Sacramento, CA, Tyler Bair, Washington, DC, on the brief, for Defendant-Appellee.
BENTON, Circuit Judge.
The National Indian Gaming Commission (“NIGC“) fined Bettor Racing, Inc. $5 million for violations of the Federal Indian Gaming Regulatory Act. The Act requires NIGC to approve all contracts for the operation of gaming activities at tribal casinos.
Bettor Racing contracted to operate its pari-mutuel betting business at the casino of the Flandreau Santee Sioux Tribe. NIGC did not approve the contract until after Bettor Racing had begun operating at the casino. The parties made two modifications to the contract, creating a check-swap scheme: Bettor Racing would pay
NIGC sent a “Notice of Violation” to the Tribe and Bettor Racing. The Tribe settled with NIGC; Bettor Racing did not. NIGC found Bettor Racing had committed three violations of the Act: (1) managing a tribal gaming operation without an approved management contract, (2) operating under unapproved modifications, and (3) holding a proprietary interest in the pari-mutuel betting operation. The Notice offered Bettor Racing the chance to correct the violations by reimbursing the Tribe $4,544,755.1 Bettor Racing did not make this payment. NIGC issued a Civil-Fine Assessment, fining Bettor Racing $5 million for the three violations. Bettor Racing appealed the Notice and Civil-Fine Assessment. The Office of Hearing Examiners granted summary judgment to NIGC.
Bettor Racing sought judicial review, arguing NIGC (1) acted arbitrarily and capriciously in finding the three violations, (2) acted arbitrarily and capriciously and in violation of the Eighth Amendment in setting the fine, and (3) denied Bettor Racing due process by making the determinations without holding a hearing. The Tribe intervened. On cross-motions for summary judgment, the district court2 dismissed the case. Having jurisdiction under
I.
This court reviews de novo a district court‘s decision on whether an agency action violates the Administrative Procedure Act. Friends of the Norbeck v. United States Forest Serv., 661 F.3d 969, 975 (8th Cir.2011). An agency‘s decision is set aside only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This court will not substitute its own judgment so long as the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (quotation omitted).
II.
Bettor Racing challenges the three violations, insisting it acted without requisite scienter because the Tribe represented that NIGC had approved the initial contract, modifications, and check-swap scheme. Rejecting this argument, NIGC concluded that scienter “is neither expressly nor impliedly required to establish wrongful intent or intent to violate the law. In other words, the lack of knowledge
NIGC has the authority to “levy and collect appropriate civil fines ... against ... a management contractor engaged in gaming for any violation....”
By the Act‘s plain language, no scienter is required to establish a violation under
Absent a scienter requirement, the undisputed facts establish the violations. Bettor Racing operated its pari-mutuel betting business at the Tribe‘s casino without an NIGC-approved contract for about six months. During this time, a “consulting agreement” stated Bettor Racing “will manage the Tribe‘s pari-mutuel operation pursuant to this agreement and not under the management agreement that is currently under consideration by the National Indian Gaming Commission.” Bettor Racing and the Tribe twice modified the contract; NIGC approved neither. The modifications created a check-swap scheme. Bettor Racing paid the Tribe the full amount due under the original agreement—an amount within the parameters of the Act. The tribe then immediately paid Bettor Racing a “bonus,” making Bettor Racing‘s share of the net revenues 65% to 78% between 2004 and 2007. See also City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 830 F.Supp.2d 712, 723 (D.Minn.2011), reversed in part on other grounds by City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 702 F.3d 1147 (8th Cir.2013) (identifying three factors considered by NIGC in determining who has the sole proprietary interest in a gaming operation: (1) the term of the relationship, (2) the amount of revenue paid to the third party, and (3) the right of control provided to the third party over the gaming activity).
These facts support NIGC‘s finding that Bettor Racing (1) operated without an NIGC-approved management contract, (2) operated under two unapproved modifications, and (3) held the sole proprietary interest in the gaming operations.
The district court did not err in upholding the charged violations.
III.
The Indian Gaming Act authorizes fines of up to $25,000 per violation, per day.
The NIGC is required to consider five factors in setting a fine for violations
NIGC recognized that Bettor Racing has not previously violated the Act. However, other factors weigh against Bettor Racing. First, Bettor Racing has profited from the violations by about $4.5 million. Second, the regulations explicitly identify operating without an approved contract as a “substantial violation[ ].”
The district court did not err in finding the fine both reasonable and constitutional.
IV.
Bettor Racing contends NIGC violated its right to due process when the agency dismissed the case on summary judgment without a hearing. Whether an agency‘s action violates the constitution is reviewed de novo. Business Commc‘ns, Inc. v. U.S. Dept. of Educ., 739 F.3d 374, 379 (8th Cir.2013). “Due process prevents government actors from depriving persons of liberty or property interests without providing certain safeguards.” Id., citing Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Due process calls only for “protections as the particular situation demands.” Mathews, 424 U.S. at 334. Due process does not always require “a hearing closely approximating a judicial trial....” Id. at 333.
This is not a case where “the evidence consists of testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Business Commc‘ns, 739 F.3d at 380 (holding due process required an opportunity for cross-examination when the decision depended “on the credibility of individual witness testimony....“). Rather, to reach its conclusion, NIGC relied on undisputed facts, including the testimony of Bettor Racing‘s president. Summary judgment without a hearing was appropriate.
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The district court‘s decision is affirmed.