CONTOUR SPA AT THE HARD ROCK, INC., a Florida corporation, Plaintiff-Appellant, v. SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Mitchell Cypress, et al., Defendants-Appellees.
No. 11-11997.
United States Court of Appeals, Eleventh Circuit.
Aug. 30, 2012.
VACATED and REMANDED
Bruce Stephen Rogow, Bruce S. Rogow, PA, Fort Lauderdale, FL, for Plaintiff-Appellant.
Donald Albert Orlovsky, Kamen & Orlovsky, PA, West Palm Beach, FL, for Defendant-Appellee.
Before MARCUS and BLACK, Circuit Judges, and EVANS,* District Judge.
MARCUS, Circuit Judge:
This case arises out of a leasing agreement between Contour Spa (“Contour“) and the Seminole Tribe of Florida (“the Tribe“) that turned sour. Contour appeals from a district court order dismissing its Amended Complaint for lack of subject matter jurisdiction on account of the Tribe‘s sovereign immunity. Contour of-
The district court rejected all three arguments, and we now affirm. Because the problems of inconsistency and unfairness that were inherent in the procedural posture of Lapides are absent here, and because an Indian tribe‘s sovereign immunity is of a far different character than a state‘s Eleventh Amendment immunity, we decline to extend Lapides. As for Contour‘s Indian Civil Rights Act claim, it must fail because the Supreme Court has already held that Indian tribes are immune from suit under the statute. Finally, the equitable estoppel claim is unavailable because it is grounded on a waiver provision contained within a lease agreement that is wholly invalid as a matter of federal law.
I.
Because we are reviewing the district court‘s order granting the tribal defendants’ motions to dismiss, we take as true the facts as alleged in Contour‘s complaint and attached exhibits. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam). The Seminole Tribe of Florida is a federally recognized Indian tribe that owns and operates
In the lease the Tribe expressly waived its sovereign immunity concerning any lawsuits Contour might bring based on the Tribe‘s default or breach of the lease agreement.1 Most pertinently, however, the entire lease‘s validity was explicitly conditioned upon approval by the Secretary of the Interior: “The [agreement] is all conditioned upon approval of this Lease by the Secretary of the Interior, or her authorized representative (‘the Secretary‘).” The lease also incorporated by reference the regulations prescribed by the Secretary pursuant to
It is undisputed that these regulations, as well as
Although the chairman of the Seminole Tribal Council, Mitchell Cypress, submitted the lease to the Secretary of the Interior for approval, it was never approved. Contour alleges, however, that the Tribe knowingly made false oral and written assertions that the lease was valid. The complaint highlights a letter dated November 26, 2003, from the Seminole Tribe‘s authorized representative referring to the lease as having been “fully executed.” Contour also included in the complaint a reference to a conversation its owner had with the tribal representative whereby Contour was assured “that all paperwork needed for the Lease had been submitted and approved,” and that the spa had to be open for business by May 17, 2004. The tribal representative also allegedly said: “Girl, you are good to go. Mazal tov. Congratulations.” Contour then spent more than $1.5 million to design and build the spa, which opened at the Tribe‘s hotel on May 17, 2004.
The deal between the parties began to sour in 2005 when Contour wanted to begin charging Hard Rock Hotel guests to use the fitness center at the spa. But what really set the stage for this lawsuit was a comment made by a tribal representative in June 2007 that the “Lease Agree-
Notwithstanding having learned that the lease had never been approved, Contour continued to operate its spa at the hotel. But Contour‘s operations at the Hard Rock ended on March 17, 2010, when the Tribe‘s counsel e-mailed a letter to Contour informing Contour that the Tribe had decided to retake the premises and to permanently close the spa. By the next day, the Seminole Tribe had padlocked the doors on Contour‘s business and would only allow Contour access when escorted by tribal security and for the limited purpose of removing personal property.
Contour wasted no time in going to court. On March 19, 2010, Contour filed suit against the Seminole Tribe in Florida Circuit Court for Broward County, seeking emergency declaratory and injunctive relief. Shortly thereafter, the Tribe removed the case to the United States District Court for the Southern District of Florida.
Contour then took the opportunity to amend its complaint. In addition to the Tribe itself, Contour added as defendants the Tribe‘s Chairman, Mitchell Cypress, unnamed tribal member(s) John Doe, and unnamed non-tribal defendant(s) Richard Roe. The Amended Complaint alleged two federal claims and five state-law counts. Counts I and II sought declaratory and injunctive relief against all tribal defendants under the Indian Civil Rights Act,
Both the Seminole Tribe and, separately, Chairman Cypress, moved to dismiss for lack of subject matter jurisdiction, asserting tribal sovereign immunity. After full briefing, the district court dismissed the federal claims, and remanded the state-law claims back to state court, finding no basis for retaining supplemental jurisdiction under
II.
“We review de novo the district court‘s dismissal of a complaint for sovereign immunity.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir. 2001); accord Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1240-41 (11th Cir. 1999); Fla. Paraplegic, Ass‘n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1128 (11th Cir. 1999).
Although the Supreme Court has expressed some doubt about the continued wisdom of the tribal immunity doctrine, it is nonetheless clear that “[a]s a matter of
Contour offers three reasons for why tribal immunity should not bar this lawsuit: first, Contour claims that removal of the case to federal court amounted to a waiver of the Tribe‘s sovereign immunity; Contour also says that the Indian Civil Rights Act creates an implied cause of action against the Tribe; and finally, Contour contends that equitable principles should hold the Tribe to its express waiver of sovereign immunity, even though the lease containing that waiver is plainly invalid as a matter of law since the Secretary of the Interior never approved it. We address each argument in turn.
A.
The first and most substantial argument is that the Supreme Court‘s Eleventh Amendment holding in Lapides should be extended in order to establish that when an Indian tribe voluntarily removes a case to federal court it too waives sovereign immunity from suit. We are unpersuaded.
In Lapides, an employee of the Georgia state university system sued the University Board of Regents and individual board members in Georgia state court, alleging violations of both Georgia tort law and federal law. Lapides, 535 U.S. at 616, 122 S.Ct. 1640. By statute, Georgia had expressly waived its immunity from suit for claims sounding in tort and brought in state court, but did not waive immunity from actions brought in federal court.
Not surprisingly, Georgia then removed the cause to federal court based on the federal claim, which had been brought under
Lapides sought certiorari. We agreed to decide whether “a state waive[s] its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court ....”
It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings. That is because Lapides’ only federal claim against the State arises under 42 U.S.C. § 1983, that claim seeks only monetary dam-
ages, and we have held that a State is not a “person” against whom a § 1983 claim for money damages might be asserted. Hence this case does not present a valid federal claim against the State. Nor need we address the scope of waiver by removal in a situation where the State‘s underlying sovereign immunity from suit has not been waived or abrogated in state court.
Id. at 617-18, 122 S.Ct. 1640 (alterations in original) (emphases added) (citations omitted); accord id. at 618, 122 S.Ct. 1640 (“[T]he question presented is not moot. We possess the legal power here to answer that question as limited to the state-law context just described.“).
The Supreme Court ultimately determined that the state of Georgia did indeed waive its Eleventh Amendment immunity by removing the case to federal court. See id. at 619-24, 122 S.Ct. 1640. Notwithstanding the express limitation on its holding, the Court‘s subsequent reasoning was in many ways quite broad. The Court began by observing 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, 122 S.Ct. 1640 (internal quotation marks omitted). The Court further noted that “a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results.” Id.; accord id. at 622, 122 S.Ct. 1640 (“In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create.“). The Court also pointed out that Georgia had “voluntarily agreed to remove the case to federal court,” that “[i]n doing so, it voluntarily invoked the federal court‘s jurisdiction,” and therefore, “unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply.” Id. at 620, 122 S.Ct. 1640.
The Supreme Court rejected Georgia‘s claim that waiver should not apply because “its motive for removal was benign,” reasoning that “[m]otives are difficult to evaluate, while jurisdictional rules should be clear” and that “[t]o adopt the State‘s Eleventh Amendment position would permit States to achieve unfair tactical advantages, if not in this case, in others.” Id. at 621, 122 S.Ct. 1640. The Court concluded this way: “[W]e believe the rule is a clear one, easily applied by both federal courts and the States themselves. It says that removal is a form of voluntary invocation of a federal court‘s jurisdiction sufficient to waive the State‘s otherwise valid objection to litigation of a matter (here of state law) in a federal forum.” Id. at 623-24, 122 S.Ct. 1640.
A few of our sister circuits have turned Lapides into a “straightforward, easy-to-administer rule” that removal by a state waives its Eleventh Amendment immunity, regardless of whether the state has previously waived its immunity in state court or whether the removed claims arose under state or federal law. Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004); accord Estes v. Wyo. Dep‘t of Transp., 302 F.3d 1200, 1206 (10th Cir. 2002); cf. Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix Int‘l Software, Inc., 653 F.3d 448, 461-62 (7th Cir. 2011) (noting that Lapides is not limited to its facts and holding that plaintiff state, by bringing suit in federal court, waived its immunity from related counter-claims). Other circuits have declined to read Lapides quite so broadly, taking the Supreme Court at its word and limiting Lapides to its procedural posture—in-
We need not enter into this conflict today over how best to read Lapides with respect to a state‘s removal of a case to federal court. Simply put, 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. See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng‘g, 476 U.S. 877, 890-91, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) (“[B]ecause 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.” (citing United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 513, 60 S.Ct. 653, 84 L.Ed. 894 (1940))). Indeed, as the Supreme Court observed in Kiowa Tribe, “the immunity possessed by Indian tribes is not coextensive with that of the States,” and “tribal immunity is a matter of federal law and is not subject to diminution by the States.” 523 U.S. at 756, 118 S.Ct. 1700. Moreover, and equally important in this calculus, we may not lightly conclude that an Indian tribe has waived its immunity from suit. Our precedents make it abundantly clear that a waiver of tribal sovereign immunity cannot be implied on the basis of a tribe‘s actions; rather, it must be unequivocally expressed. See Sanderlin, 243 F.3d at 1286; Seminole Tribe, 181 F.3d at 1243. And although the precise issue before us—whether an Indian tribe‘s removal of a suit to federal court waives the tribe‘s sovereign immunity—is one of first impression among the circuits, there are powerful reasons to treat an Indian tribe‘s sovereign immunity differently from a state‘s Eleventh Amendment immunity.
For starters, tribal immunity is in many respects more analogous to foreign sovereign immunity than to state Eleventh Amendment immunity. The significance of the comparison inheres in the fact that foreign sovereigns do not waive their sovereign immunity by removing a case to federal court. See
While Indian tribes do not have an express statutory right of removal, the similarities between foreign sovereign immunity and tribal immunity are nonetheless considerable. Indeed, the Supreme Court has offered just such a comparison in describing the origins of the two doctrines, as
In considering Congress’ role in reforming tribal immunity, we find instructive the problems of sovereign immunity for foreign countries. As with tribal immunity, foreign sovereign immunity began as a judicial doctrine. Chief Justice Marshall held that United States courts had no jurisdiction over an armed ship of a foreign state, even while in an American port. While the holding was narrow, “that opinion came to be regarded as extending virtually absolute immunity to foreign sovereigns.” In 1952, the State Department issued what came to be known as the Tate Letter, announcing the policy of denying immunity for the commercial acts of a foreign nation. Difficulties in implementing the principle led Congress in 1976 to enact the Foreign Sovereign Immunities Act, resulting in more predictable and precise rules.
Like foreign sovereign immunity, tribal immunity is a matter of federal law. Although the Court has taken the lead in drawing the bounds of tribal immunity, Congress, subject to constitutional limitations, can alter its limits through explicit legislation.
Kiowa Tribe, 523 U.S. at 759, 118 S.Ct. 1700 (citations omitted).
Again, tribal immunity is a matter of purely federal law. Id.; see also South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998) (“Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights.“). Much like foreign sovereigns, Indian tribes have an interest in a uniform body of federal law in this area. Cf. Lowery v. Ala. Power Co., 483 F.3d 1184, 1197 (11th Cir. 2007) (noting that
We can discern no sound basis in law or logic for forcing an Indian tribe to make this choice. The Court‘s holding in La-
We also find it difficult to reconcile Contour‘s claim that we should broadly read Lapides and extend its holding to tribal sovereign immunity with the Supreme Court‘s decision in Potawatomi, which held that filing a suit for injunctive relief against a state tax commission in federal court did not waive an Indian tribe‘s immunity from the tax commission‘s counterclaims. 498 U.S. at 509-10, 111 S.Ct. 905 (“We uphold the Court of Appeals’ determination that the Tribe did not waive its sovereign immunity merely by filing an action for injunctive relief.“). It is clear that the Indian tribe had voluntarily invoked the jurisdiction of the federal courts, yet did not waive its sovereign immunity against related counterclaims by doing so. Notably, the Supreme Court in Lapides expressly distinguished Potawatomi and other cases cited by the state of Georgia, recognizing that tribal immunity implicates wholly different concerns than are raised by Eleventh Amendment immunity:
Those cases, however, do not involve the Eleventh Amendment—a specific text with a history that focuses upon the State‘s sovereignty vis-a-vis the Federal Government. And each 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, 122 S.Ct. 1640 (emphasis added). The Supreme Court squarely recognized that waiver rules applicable to states may not apply in the same way to Indian tribes.
We are, therefore, reluctant to extend the Supreme Court‘s decision in Lapides, which, after all, raised questions about a state‘s removal of a claim in the context of Eleventh Amendment immunity, to the substantially different context presented by this case. In short, the Tribe‘s removal of the case to federal court did not, standing alone, waive the Tribe‘s sovereign immunity from suit.
B.
Contour also claims that the Indian Civil Rights Act of 1968 (“ICRA“),
It is settled that a [congressional] waiver of sovereign immunity “‘cannot be implied but must be unequivocally expressed.‘” Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. Moreover, since the respondent in a habeas corpus action is the individual custodian of the prisoner, the provisions of [25 U.S.C.] § 1303 [expressly providing for federal habeas corpus jurisdiction to contest the legality of a tribal detention] can hardly be read as a general waiver of the tribe‘s sovereign immunity. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.
Id. at 58-59, 98 S.Ct. 1670 (emphasis added) (citations omitted). Contour‘s argument does not even address the Supreme Court‘s straightforward tribal immunity holding.
Contour instead relies upon an opinion from the Tenth Circuit holding that the Indian Civil Rights Act creates an implied cause of action, at least where the following narrow circumstances are met: (1) the involvement of a non-Indian in the suit; (2) an attempt by the plaintiff to seek a remedy in a tribal forum; and (3) the unavailability of an adequate tribal remedy. Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682, 685 (10th Cir. 1980). Although the district court in this case examined whether Contour met the factors enumerated by the Tenth Circuit in Dry Creek before declining to find an implied cause of action, it need not have gone that far. As we see it, the Tenth Circuit‘s framework is unnecessary when tribal immunity is at issue. The law is crystal clear that tribal immunity applies unless there has been congressional abrogation or waiver by the tribe. Kiowa Tribe, 523 U.S. at 754, 118 S.Ct. 1700. The problem with Contour‘s claim is that congressional abrogation must be unequivocally expressed and the Supreme Court has already held that “suits against the tribe under the ICRA are barred by its sovereign immunity from suit.” Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. 1670.4 The very notion of an implied
C.
Contour‘s final argument is that the Seminole Tribe‘s misrepresentations about the status of the lease—that the lease was “fully executed,” that “all paperwork needed for the Lease had been submitted and approved,” and that Contour‘s owner was “good to go“—should prevent the Tribe from disclaiming its express waiver of sovereign immunity contained in the concededly invalid lease agreement. Contour claims that “equitable estoppel principles should apply to
Contour has provided us with no support for its claim that the Seminole Tribe is somehow estopped from asserting the invalidity of the lease agreement in its entirety. Indeed, Contour‘s own brief concedes that because “the Secretary of Interior did not approve the long term lease contract ... the waiver of sovereign immunity contained in that lease is not binding.” We are, therefore, unpersuaded by Contour‘s equitable estoppel argument, and join our sister circuits that have addressed similar arguments in holding that estoppel cannot compel enforcement of any of a contract‘s provisions when the contract is rendered legally invalid by operation of federal law. See United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 890 (10th Cir. 1989); A.K. Mgmt. Co. v. San Manuel Band of Mission Indians, 789 F.2d 785, 789 (9th Cir. 1986).
The Ninth Circuit‘s decision in A.K. Management is instructive. That court considered a contract between a non-tribal party (“AK“) and an Indian tribe (“the Band“) that “gave AK the exclusive right to construct a bingo facility and operate bingo games on the Band‘s reservation for twenty years.” 789 F.2d at 786. The agreement included provisions obliging the Band to act in good faith and to take all necessary steps to execute the agreement. Id. The agreement also included provisions expressly waiving the Band‘s sovereign immunity as to any action to enforce or interpret the agreement, and incorporating the statutory and regulatory requirements that the contract receive approval from the Bureau of Indian Affairs. Id. Nonetheless, three days after signing
After first arguing that
The Ninth Circuit rejected this line of argument because it could not be squared with the language of the statute:
Whatever the persuasive force of these arguments, it is doubtful that general contract principles apply to an agreement subject to 25 U.S.C. § 81 (1982). Section 81 explicitly provides that a contract is “null and void” without written approval from the BIA. Therefore it is logical to conclude that an agreement without BIA approval must be null and void in its entirety. No part of it may be enforced or relied upon unless and until BIA approval is given. BIA approval is an absolute prerequisite to the enforceability of the contract. To give piecemeal effect to a contract as urged by AK, would hobble the statute. The plain words of section 81 simply render this contract void in the absence of BIA approval. Since it is void, it cannot be relied upon to give rise to any obligation by the Band, including an obligation of good faith and fair dealing. Accordingly, we find that general contract principles do not impose a duty on the Band to seek BIA approval of the Agreement.
Id. (footnote omitted).5 The Ninth Circuit‘s tribal immunity analysis was then straightforward. The court observed that “the waiver of sovereign immunity is clearly part of the Agreement, and is not operable except as part of that Agreement.” Id. It concluded that “[s]ince the entire contract is inoperable without BIA approval, the waiver is inoperable and, therefore, the tribe remains immune from suit.” Id.
The Tenth Circuit in Potawatomi reached the same conclusion, explicitly following the Ninth Circuit‘s approach. The Tenth Circuit rejected the non-tribal party‘s assertion that the Indian tribe‘s “particularly egregious conduct” supported the claim “that the Tribe is estopped from asserting the protection of section 81.” Potawatomi, 883 F.2d at 890. The court noted that “similar claims of estoppel based on similar circumstances have been considered in the context of section 81 and rejected.” Id. (citing A.K. Mgmt., 789 F.2d at 788-89).
The reasoning behind these decisions is persuasive. The straightforward text of
The Secretary‘s approval is a condition precedent to the validity of any lease covered by
Accordingly, we affirm the judgment of the district court dismissing Contour‘s federal claims for lack of jurisdiction and remanding the state-law claims back to state court.
AFFIRMED.
Mahala AULT, on her own behalf and on behalf of all others similarly situated, Stacie Rhea, on her own behalf and on behalf of all others similarly situated, Dan Wallace, on his own behalf and on behalf of all others similarly situated, Plaintiffs-Appellees,
Jerry Miller, Disability Rights Advocates for Technology, Daniel M. Gade, Alan A. Maccini, James F. Overby, Intervenor Plaintiffs-Appellants,
Jerry Kerr, Interested Party-Appellant,
v.
WALT DISNEY WORLD CO., Defendant-Appellee.
No. 11-12013.
United States Court of Appeals, Eleventh Circuit.
Aug. 30, 2012.