BETH A. BODI, Plaintiff-Appellee, v. SHINGLE SPRINGS BAND OF MIWOK INDIANS; SHINGLE SPRINGS TRIBAL HEALTH; TIMOTHY ADAMS, as current Chairperson of the Shingle Springs Tribal Health Board, Defendants-Appellants.
No. 14-16121
United States Court of Appeals for the Ninth Circuit
August 8, 2016
D.C. No. 2:13-cv-01044-LKK-CKD
829 F.3d 1111
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted May 12, 2016 San Francisco, California
Filed August 8, 2016
Before: M. Margaret McKeown, Robert D. Sack*, and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
SUMMARY**
Indian Law
The panel reversed the district court‘s denial of a motion to dismiss claims under the Family and Medical Leave Act and California law on the ground of tribal sovereign immunity.
Following the Eleventh Circuit, the panel held that a federally recognized Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove to federal court a case filed against it in state court. The panel concludеd that the act of removal does not express the clear and unequivocal waiver that is required for a tribe to relinquish its immunity.
The panel remanded the case, leaving it to the district court to address on remand any remaining immunity issues.
COUNSEL
Christopher F. Wohl (argued), Palmer Kazanjian Wohl Hodson LLP, Sacramento, California; Paula Yost, Sandra R. McCandless and Ian Barker, Dentons US LLP, San Francisco, California; for Defendants-Appellants.
David Nied (argued) and Wendy L. Hillger, Ad Astra Law Group, LLP, San Francisco, California, for Plaintiff-Appellee.
Richard D. Monkman, Harry R. Sachse and Peng Wu; Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, Alaska; for Amici Curiaе Arctic Slope Native Association, LTD and Puyallup
OPINION
FRIEDLAND, Circuit Judge:
This appeal requires us to decide whether a federally recognized Indian tribe waives its sovereign immunity from suit by exercising its right to remove to federal court a case filed against it in state court. This question has divided the district courts, and it has been reached by only one of our sister circuits, which held that removal does not, standing alone, waive tribal immunity. See Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206–08 (11th Cir. 2012). We now follow the lead of the Eleventh Circuit and hold that the act of removal does not express the clear and unequivocal waiver that is rеquired for a tribe to relinquish its immunity from suit. Because the district court held otherwise, we reverse.
I.
The Shingle Springs Band of Miwok Indians (the “Tribe“) is a federally-recognized Indian tribe located on the Shingle Springs Rancheria in California.1 Since about 1995, the Tribe has owned and operated a full-service health clinic. The clinic operates under the name Shingle Springs Tribal Health Program (the “Health Program“) and is run by the Shingle Springs Tribal Health Board (the “Health Board“), whose nine directors are all members of the Tribe. Among its duties, the Health Board is responsible for the hiring and termination of the clinic Executive Director.
Plaintiff-Appellee Beth A. Bodi is a member of the Tribe. Bodi began working at the clinic in 1997 and became its Executive Director in November 2001. In August 2012, after she attempted to take job-protected leave under the Family Medical Leave Act (the “FMLA“),
Bodi filed suit in California state court, asserting claims against the Tribe under the FMLA and California law. The Tribe timely removed the action to the United States District Court for the Eastern District of California on the basis of that court‘s federal question jurisdiction over the FMLA claim and supplemental jurisdiction over the state law claims. One week later, the Tribe moved to dismiss the lawsuit under
Tribe‘s exclusive right of self-governance barred Bodi‘s claims for injunctive relief under the FMLA.4
Acknowledging that district сourts in this circuit were split on the waiver-by-removal question,5 the district court expressed its hope that Defendants would “appeal [its] ruling so that a higher court may definitively resolve the issue.” See Bodi v. Shingle Springs Band of Miwok Indians, 19 F. Supp. 3d 978, 987 (E.D. Cal. 2014). Defendants did so, and because the “denial of a claim of tribal sovereign immunity is immediately appealable” even absent a final judgment, Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir. 2007), that issue is now squarely before us.
II.
We review de novo a district court‘s decision on a motion to dismiss for lack of subject matter jurisdiction. See Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013). We
likewise review de novo whether an Indian tribe has waived its immunity from suit. See id.; Demontiney v. United States ex rel. Dep‘t of Interior, Bureau of Indian Affairs, 255 F.3d 801, 805 (9th Cir. 2001).
III.
The gravamen of this appeal is the question whether a tribe‘s removal of a сase from state to federal court constitutes, in and of itself, a valid waiver of its immunity from suit.6 The Eleventh Circuit, the only one of our sister circuits to have reached this issue, held that it does not. Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206–08 (11th Cir. 2012). Application of settled tribal immunity principles and consideration of the fairness and administrative concerns at stake lead us to the same conclusion reached by the Eleventh Circuit: that a tribe‘s exercise of its right to
A.
The doctrine of tribal sovereign immunity derives from the status of Indian tribes as “separate sovereigns preexisting the Constitution.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)); see also Santa Clara Pueblo, 436 U.S. at 55 (“Indian tribes are ‘distinct, independent political communities, retaining their original natural rights’ in matters of local self-government.” (quoting
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832), abrogation on other grounds recognized by Nevada v. Hicks, 533 U.S. 353, 361–62 (2001))). “Among the core aspects of sovereignty that tribes possess ... is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.‘” Bay Mills, 134 S. Ct. at 2030 (quoting Santa Clara Pueblo, 436 U.S. at 58). The Supreme Court has characterized that immunity as “a necessary corollary to Indian sovereignty and self-governance,” id. (quoting Three Affiliated Tribes of Fort Berthold Reservation v. World Eng‘g, P.C., 476 U.S. 877, 890 (1986)), and we employ a “strong presumption against [its] waiver,” Demontiney, 255 F.3d at 811.
There are only two ways in which a tribe may lose its immunity from suit. Congress may abrogate tribal immunity, because, “[a]s dependents, the tribes are subject to plenary control by Congress.” Bay Mills, 134 S. Ct. at 2030. Or, of relevance to this appeal, a tribe may itself waive immunity. Okla. Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe (Potawatomi), 498 U.S. 505, 509 (1991). It is well settled that “a waiver of [tribal] sovereign immunity ‘cannot be implied but must be unequivocally expressed.‘” Santa Clara Pueblo, 436 U.S. at 58 (quoting United States v. Testan, 424 U.S. 392, 399 (1976)).7 That expression must
also manifest the tribe‘s intent to surrender immunity in “clear” and unmistakable terms. C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001) (quoting Potawatomi, 498 U.S. at 509).8 Thus, absent a clear and unequivocally expressed waiver by a tribe or congressional abrogation, “[s]uits against Indian tribes are ... barred.” Potawatomi, 498 U.S. at 509; see also Bay Mills, 134 S. Ct. at 2030–31 (“[W]e have time and again treated the ‘doctrine of tribal immunity [as] settled law’ and dismissed any suit against a tribe absent congressional authorization (or a waiver).” (second alteration in original) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998))).
B.
The question here is thus whether, by removing this case from state to federal court, the Tribe clearly and unequivocally expressed its intent to waive its immunity from suit. We hold that it did not.
1.
It is undisputed that the Tribe did not expressly state its intent to waive its immunity when it removed the case; to the contrary, it asserted its immunity defense promptly upon removal to federal court and neither it, nor any Defendant, ever voiced an intent to litigate on the merits.9 The only way in which removal can constitute a waiver, then, is if the vоluntary act of removal is tantamount to an express waiver of tribal immunity. Bodi urges us to hold that it is, but we are not persuaded.
By filing a lawsuit, a tribe may of course “consent[] to the court‘s jurisdiction to determine the claims brought” and thereby agree to be bound by the court‘s decision on those claims. Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245 (8th Cir. 1995) (quoting F. Cohen, Handbook of Federal Indian Law 324 (1982)); see also McClendon v. United States, 885 F.2d 627, 630 (9th Cir. 1989) (“Initiation of a lawsuit necessarily establishes consent to the court‘s adjudication of the merits of that particular controversy.“). By consenting to the court‘s jurisdiction to determine its own claims, however, a tribe does not automatically waive its immunity as to claims thаt could be asserted against it, even as to “related matters ... aris[ing] from the same set of underlying facts.” McClendon, 885 F.2d at 630. The Supreme Court has thus emphasized that a tribe‘s initiation of a lawsuit for injunctive relief does not waive its immunity
to counterclaims, including compulsory ones. Potawatomi, 498 U.S. at 509; see also United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 513 (1940) (“Possessing [] immunity from direct suit, we are of the opinion [that a tribe] possesses a similar immunity from cross-suits.“); McClendon, 885 F.2d at 630 (“[W]e consistently have held that a tribe‘s participation in litigation does not constitute consent to counterclaims asserted by the defendants in those actions.“). And we have held that a tribe‘s voluntary participation in administrative proceedings does not waive its immunity in a subsequent court action filed by another party seeking review of the agency proceedings. See Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996) (holding that tribes “did not waive their immunity by intervening in ... administrative proceedings” because “[a]ny waiver must be unequivocal and may not be implied“); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994) (holding that tribe‘s “voluntary participation” in administrative proceedings “is
Like filing a complaint, which invites the court to resolve a specific issue but does not waive immunity as to other issues, the Tribe‘s removal and immediate assertion of immunity invoked the court‘s jurisdiction for the limited purpose of resolving the Tribe‘s “quasi-jurisdictional” immunity defense. Pistor v. Garcia, 791 F.3d 1104, 1110 (9th Cir. 2015) (alteration omitted) (quoting Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir. 1989)). The Tribe‘s actiоn is in this way analogous to a civil litigant‘s filing a motion to dismiss for lack of subject matter jurisdiction. The litigant thereby invites the court to exercise that jurisdiction required to determine its own jurisdiction. See United States v. Ruiz, 536 U.S. 622, 628 (2002) (“[I]t is
familiar law that a federal court always has jurisdiction to determine its own jurisdiction.“). It would defy logic to suggest that, in doing so, the Tribe clearly manifested its intent to waive the very immunity defense that it asserts.
If anything is to be inferred from the Tribe‘s removal and immediate assertion of immunity, it is that the Tribe preferred to have its immunity defense heard in a federal forum, not that it intended to waive its immunity and to have the claims filed against it decided on their merits. But even if it were possible to read into the act of removal some intent by the Tribe to relinquish its immunity to suit, we could not uphold a waiver on that basis because “waivers of tribal sovereign immunity may not be implied.” Allen, 464 F.3d at 1047.
2.
To resist this result, Bodi urges us to extend the Supreme Court‘s decision in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002), in which the Court held that the defendant State waived its Eleventh Amendment immunity through the “affirmative litigation conduct” of “remov[ing] a case to federal court,” id. at 616–17. The Eleventh Circuit in Contour Spa rejected a similar attempt to extend Lapides from the Eleventh Amendment context to the tribal immunity context, 692 F.3d at 1204–08, and we do as well.
In Lapides, a professor brought suit in Georgia state court against his employer, the Georgia state university system, аnd various university officials, alleging violations of state and federal law based on the placement of allegations of sexual harassment in his personnel files. 535 U.S. at 616. The Georgia legislature had passed a statute expressly waiving the State‘s sovereign immunity to state law claims
filed in state court. See id.;
At the outset, the Supreme Court determined that the sole federal claim, which sought monetary damages under
After expressing this limitation, the Court used some more general language in discussing the consequences of the State‘s decision to remove the case. The Court reasoned that “[i]t would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the ‘Judicial power of the United States’ extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the ‘Judicial Power of the United States’ extends to the case at hand.” Id. at 619. Observing that it had previously held that a “State‘s voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity,” id. (citing Clark v. Barnard, 108 U.S. 436, 447 (1883)), the Court reasoned that a State similarly expresses its intent to “voluntarily invoke[]
the federal court‘s jurisdiction” by “voluntarily agree[ing] to remove the case to federal court.” Id. at 620. Unable to discern “something special about removal or about this case,” the Court concluded that the “general legal principle requiring waiver” when a State voluntarily invokes judicial authority “ought to apply.”10 Id.
As a result of the tension between Lapides‘s express limitations on its own holding and this general language, courts are divided on whether Lapides indicates that a State defendant‘s removal to federal court waives its Eleventh Amendment immunity if the State has not waived its immunity to suit in state court. See Contour Spa, 692 F.3d at 1205–06 (citing cases).11 Here, the Tribe—unlike the
State
As the Eleventh Circuit observed in Contour Spa, we need not resolve here the question how broadly to read Lapides with respect to a State defendant‘s removal of a suit to federal court, because we hold that Lapides‘s waiver-through-removal reasoning does not apply at all in the context of tribal immunity. Cf. Contour Spa, 692 F.3d at 1206
case, a State defendant does not waive its general common law immunity from suit, regardless of whether it would thereby waive its Eleventh Amendment immunity under Lapides. See, e.g., Beaulieu v. Vermont, 807 F.3d 478, 483–89 (2d Cir. 2015).
In Embury v. King, 361 F.3d 562 (9th Cir. 2004), we extended Lapides in a limited fashion to hold that a State defendant‘s removal waived its immunity to federal as well as state law claims, including those claims pled in an amended complaint after removal, id. at 564–65. Although, in Embury, we characterized Lapides broadly as setting forth a “straightforward, easy-to-administer rule” that “[r]emoval waives Eleventh Amendment immunity,” id. at 566, wе did not explicitly consider whether it applied when a State defendant retained its immunity from suit in state court, as it appears the State defendants there had not done. See id. at 564 (noting that the State defendants had “concede[d] that, under Lapides, they [were] stuck with federal jurisdiction over the state law claims“); see also Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 662-63 (9th Cir. 2009) (“Under Embury, the Director, having waived state court immunity, also waived federal court sovereign immunity by voluntarily removing the action.“), vacated on other grounds sub. nom Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204 (2012). We have since observed that the question whether Lapides‘s rule applies when a State defendant has not consented to suit in its own courts remains unresolved in this circuit. See Indep. Living Ctr., 572 F.3d at 662 n.20.
(declining to “enter into this conflict ... over how best to read Lapides with respect to a state‘s removal of a case” because “an Indian tribe‘s sovereign immunity is not the same thing as a state‘s Eleventh Amendment immunity, and Lapides in no way addressed tribal sovereign immunity“).
Tribal immunity is not synonymous with a State‘s Eleventh Amendment immunity, and parallels between the two are of limited utility. See, e.g., Three Affiliated Tribes, 476 U.S. at 890 (“Of course, because of the peculiar ‘quasi-sovereign’ status of the Indian tribes, the Tribe‘s immunity is not congruent with that which the Federal Government, or the States, enjoy.“). Importantly, States can waive their Eleventh Amendment immunity through litigation conduct that would not effect a waiver of tribal sovereign immunity. For example, a State‘s filing of a claim may waive its Eleventh Amendment immunity to counterclaims that arise from the same transaction or occurrence, at least in the bankruptcy context. See In re Lazar, 237 F.3d 967, 978 (9th Cir. 2001) (holding that “when a state ... files a proof of claim in a bankruptcy proceeding, the state waives its Eleventh Amendment immunity with regard to the bankruptcy estate‘s claims that arise from the same transaction or occurrence as the state‘s claim“). A tribe, in contrast, does not waive its immunity to a compulsory counterclaim by voluntarily filing suit. Potawatomi, 498 U.S. at 509–10. In addition, while waiver cannot be implied with respect to tribal immunity, it can be implied under certain circumstances with respect to Stаtes’ Eleventh Amendment immunity. See Aholelei v. Dep‘t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (“Express waiver is not required; a state ‘waive[s] its Eleventh Amendment immunity by conduct that is incompatible with an intent to preserve that immunity.‘” (first quoting In re Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002);
then quoting Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999))).
Indeed, recognizing the important distinctions between the two forms of immunity, Lapides itself suggested that its holding was specific to the Eleventh Amendment context. The Supreme Court explained of cases about federal immunity and tribal immunity that
[t]hose cases ... do not involve the Eleventh Amendment—a specific text with a history that focuses upon the State‘s sovereignty vis-á-vis the Federal Government. And each [such] case involves special circumstances not at issue here, for example, an effort by a sovereign (i.e., the United States) to seek the
protection of its own courts (i.e., the federal courts), or an effort to protect an Indian tribe.
Lapides, 535 U.S. at 623. These comments from the Supreme Court indicate that “waiver rules applicable to states may not apply in the same way to Indian tribes.” Contour Spa, 692 F.3d at 1208. Like the Eleventh Circuit, we decline to interpret Lapides as extending beyond States’ Eleventh Amendment immunity.
Comparisons to foreign sovereign immunity also do not help Bodi. Bodi argues that the differences between tribal immunity and the immunity enjoyed by foreign nations suggest that a tribe waives its immunity by removing to federal court. In refusing to extend Lapides to the tribal immunity context, the Eleventh Circuit in Contour Spa reasoned in part that tribal sovereign immunity is instead “more analogous to foreign sovеreign immunity,” and that “[t]he significance of the comparison inheres in the fact that foreign sovereigns do not waive their sovereign immunity by
removing a case to federal court.” Id. at 1206 (citing
This distinction misconceives tribal immunity principles. Congress, of course, need not affirmatively preserve tribal immunity; rather “[a]s separate sovereigns pre-existing the Constitution,” Indian tribes possess immunity from suit unless expressly abrogated or waived. Santa Clara Pueblo, 436 U.S. at 56–58. Nothing in the removal statute,
dedicated removal provision has on that question, so Bodi‘s analogies to foreign sovereign questions get her nowhere.13
C.
We are further persuaded that this result is correct because of the likely unfairness and administrative challenges that a contrary holding would entail. In concluding that the State of Georgia had waived its immunity by removal, Lapides was motivated by the desire
to avoid “inconsistency, anomaly, and unfairness” and to prevent the “selective use of ‘immunity’ to achieve litigation advantages.” 535 U.S. at 620. As Contour Spa recognized, these concerns cut the other way in the tribal immunity context. 692 F.3d at 1207–08.
First, we join the Eleventh Circuit in its concern that it would be unfair to put tribes to a choice between asserting their right to remove to federal court federal claims filed against them and asserting their tribal immunity defense. See Contour Spa, 692 F.3d at 1207. If а tribe had to litigate its immunity defense in state court to avoid waiver through removal, and that immunity defense proved to be completely or partially unsuccessful, the tribe would almost certainly have missed the statutory 30-day deadline to remove the case to federal court. See
would face a Morton‘s Fork: remove the federal claim to federal court and waive immunity or litigate the federal claim in state court regardless of its federal nature. Either way, the [tribe] would be compеlled to relinquish a right: either its right to assert
immunity from suit or its “right to a federal forum.”15
Bergemann, 665 F.3d at 342 (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005)). The Eleventh Circuit could find “no sound basis in law or logic for forcing an Indian tribe to make this choice” between asserting its removal right and its sovereign immunity defense, Contour Spa, 692 F.3d at 1207, and we cannot either.
Also problematic is the race to the courthouse that Bodi‘s position on tribal waiver-by-removal would likely inspire. There are reasons why a tribe may prefer to litigate in federal court. “[T]ribal immunity ‘is a matter of federal law,‘” Bay Mills, 134 S. Ct. at 2031 (quoting Kiowa Tribe, 523 U.S. at 756), and, as such, tribes may wish to avail themselves, when possible,16 of the “experience, solicitude, and hope of uniformity that a federal forum offers on [such] federal issues,” Grable & Sons Metal Prods., Inc. v. Darue Eng‘g & Mfg., 545 U.S. 308, 312 (2005) (discussing removability of claims “implicat[ing] significant federal issues“); see Contour Spa, 692 F.3d at 1207 (recognizing that tribes “have
an interest in a uniform body of federal law in [the] area” of tribal immunity). In addition, state courts have long been at least perceived as “inhospitable to Indian rights.” Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 566 (1983).
Faced with losing the opportunity to have their immunity defenses to federal claims heard in federal court if they were sued in state court, tribes would be strongly incentivized to file an affirmative suit for declaratory or injunctive relief in federal court in order to preserve their ability to assert their federal immunity defense in that forum to any counterclaim for damages. This is because, as indicated above, a tribe does not waive its immunity to related—and even compulsory—counterclaims by filing a suit for injunctive or declaratory relief. See Potawatomi, 498 U.S. at 509. Thus, for instance, in this case, once Bodi threatened to sue, Defendants would have been incentivized to rush to the federal courthouse doors to file a suit for declaratory relief that the FMLA does not apply to the instant dispute, so that the Tribe could then assert in that forum its federal immunity defense to any counterclaim for damages filed by Bodi. In resolving a different jurisdictional dispute involving tribal rights, the Supreme Court was swayed by the overriding need to avoid such “wasteful” litigation and an “unseemly and destructive race to see which forum can resolve the same issues first.” San Carlos Apache Tribe, 463 U.S. at 567. That concern militates against recognizing waiver-by-removal here.
Finally, we note that our holding does not leave plaintiffs like Bodi without a forum for redress. Defendants conceded at oral argument that, like the State of Georgia in Lapides, the Tribe would likely have been amenable to Bodi‘s suit in
its own court system—here, Shingle Springs Tribal Court.17 Cf. Shingle Springs Tribal Court Ordinance, art. II, ch. 4, § 1(b) (2013) (setting forth the Tribe‘s express waiver of sovereign immunity in tribal court for various purposes, including labor relations); William Wood, It Wasn‘t an Accident: The Tribal Sovereign Immunity Story, 62 Am. U. L. Rev. 1587, 1666 (2013) (recognizing that “many (though not all) Indian tribes make tribal court rеmedies available for claims against their governments“); Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 137, 155–61 (2004) (concluding based on “a survey [of] caselaw and constitutional and statutory provisions from selected tribes ... that many Indian nations currently provide significant remedies, in tribal court, for claims alleging misconduct by tribal governments“).
IV.
We join the Eleventh Circuit in holding that an Indian tribe‘s removal of a case
address on its merits Defendants’ separate defense that the FMLA is not applicable to the dispute at hand.
REVERSED and REMANDED.