Rahne PISTOR; George Abel; Jacob Whitherspoon, Plaintiffs-Appellees, v. Carlos GARCIA; Farrell Hoosava; Lisa Kaiser, Defendants-Appellants, and Reynolds Nejo; Terry Phillips; Tony McDaniel; Arizona Department of Gaming; Gila County; Gila County Sheriff‘s Department; Travis Baxley, Sgt.; Dennis Newman, Deputy, Defendants.
No. 12-17095
United States Court of Appeals, Ninth Circuit
June 30, 2015
791 F.3d 1104
C
Benvin also seeks reassignment to a different district judge. “We may remand to a different district judge if a party can show personal biases or unusual circumstances, based on an assessment of three factors: (1) whether on remand the district judge can be expected to follow this court‘s dictates; (2) whether reassignment is advisable to maintain the appearance of justice; and (3) whether reassignment risks undue waste and duplication.” Kyle, 734 F.3d at 966-67 (internal quotation marks omitted); see also United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 779-80 (9th Cir.1986) (discussing circuit court‘s authority to reassign on remand). Either of the first two Kyle factors will support remand to a different district court judge. Kyle, 734 F.3d at 967; see Sears, 785 F.2d at 780.
Here, the appearance of justice will best be served by reassignment to a different judge. The current district judge has already expressed explicit views on the appropriate terms of the parties’ plea agreement, suggested the terms he would and would not accept, and explained that he would not grant any motion dismissing forty-nine counts of the indictment unless the government complies with such terms. In such a situation, “[w]hether or not [the district judge] would reasonably be expected to put out of his mind the conclusions previously drawn, and without ourselves reaching any determination as to his ability to proceed impartially, to preserve the appearance of justice, ... we conclude reassignment is appropriate.” Ellis, 356 F.3d at 1211.
III
The petition for a writ of mandamus is GRANTED. Respondent shall order this case be reassigned to another district judge in accordance with local court rules for further proceedings consistent with this opinion.2
Glenn M. Feldman (argued) and D. Samuel Coffman, Dickinson Wright/Mariscal Weeks, Phoenix, AZ, for Defendants-Appellants.
Robert A. Nersesian (argued) and Thea M. Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for Plaintiffs-Appellees.
Before: MARSHA S. BERZON and JOHNNIE B. RAWLINSON, Circuit Judges, and ELAINE E. BUCKLO, Senior District Judge.*
OPINION
BERZON, Circuit Judge:
We conclude that the tribal defendants are not entitled to sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe. Maxwell v. County of San Diego, 708 F.3d 1075, 1089 (9th Cir.2013), makes our determination pretty much foreordained. But the position of the litigants in this case, and the reluctance of the district court to decide the issue on the pleadings, suggest continuing confusion regarding the application of Maxwell, and also regarding the intersection of tribal sovereign immunity doctrine with
I.
Plaintiffs Rahne Pistor, George Abel, and Jacob Whitherspoon (“the gamblers“) are “advantage gamblers” who “use[] legal techniques ... to win at casino games.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1131 (9th Cir.2012). They achieve this success by “limit[ing] their play to games with a statistical advantage favoring the player.” (Most casino games favor the house.) Applying advantage gambling techniques, the gamblers won a significant amount of money on video blackjack machines at the Mazatzal Hotel and Casino (“Mazatzal“) in Payson, Arizona. Mazatzal is owned and operated by the Tonto Apache Tribe (“the Tribe“) on tribal land.
In their original complaint, the gamblers alleged the following: on October 25, 2011, Carlos Garcia, a Chief of the Tonto Apache Police Department, Farrell Hoosava, the General Manager of Mazatzal, and Lisa Kaiser, a Tribal Gaming Office Inspector, (“the tribal defendants“) took them from the gambling floor. The gamblers were then handcuffed and led to interrogation rooms inside Mazatzal, where they were questioned. While they were detained, the tribal defendants took significant sums of
The tribal defendants moved the district court for an order “dismissing all claims against them pursuant to
The tribal defendants also submitted a declaration by Hubert Nanty, Executive Director of the Tonto Apache Tribal Gaming Office, attaching a copy of the Tribe‘s official Tribal Gaming Ordinance. Nanty‘s declaration explained that the Ordinance, approved by the National Indian Gaming Commission under the Indian Gaming Regulatory Act of 1988,
The gamblers opposed the tribal defendants’ motion, repeating their allegations
The district court denied the defendants’ motion to dismiss. It reasoned that “[e]ven if [the tribal defendants] are entitled to tribal immunity from suit ... it would be inappropriate ... to dismiss the claims against them for lack of [subject matter] jurisdiction,” because the district court has “power generally to hear these kinds of claims,” i.e., those relying on
The district court went on to hold, in the alternative, that if the tribal defendants’ motion were construed as a
II.
“Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725 (9th Cir.2008). Tribal sovereign immunity “also protects tribal employees in certain circumstances,” Maxwell, 708 F.3d at 1086, namely, where a tribe‘s officials are sued in their official capacities. “A suit against ... [a tribe‘s] officials in their official capacities is a suit against the tribe [that] is barred by tribal sovereign immunity.” Miller v. Wright, 705 F.3d 919, 927-28 (9th Cir.2013), cert. denied, 570 U.S. 905, 133 S. Ct. 2829, 186 L. Ed. 2d 885 (2013) (internal quotation marks omitted).
A.
“Issues of tribal sovereign immunity are reviewed de novo.” Burlington N. & Santa Fe Ry. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir.2007). Although generally “[a] district court‘s denial of a motion to dismiss is not a final decision within the meaning of
“[T]he issue of tribal sovereign immunity is [quasi-]jurisdictional.” Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989); see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1015-16 (9th Cir.2007); Evans v. McKay, 869 F.2d 1341, 1345-46 (9th Cir.1989). Normally, “‘[s]ubject-matter jurisdiction’ refers to ‘the courts’ statutory or constitutional power to adjudicate the case.‘” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010) (quoting Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 89 (1998))
In the context of a
Given these established principles, the district court was incorrect to conclude that “[e]ven if [the tribal defendants] are entitled to tribal immunity from suit ... it would be inappropriate ... to dismiss the claims against them for lack of [subject matter] jurisdiction.” To the contrary, as the tribal defendants invoked sovereign immunity in an appropriate manner and at an appropriate stage, i.e. in a
B.
The district court‘s alternative reasoning, however, was correct—with regard to the tribal defendants’ invocation of tribal sovereign immunity, “the crucial question ... [is] whether plaintiffs sued these defendants ... in their official capacities or in their individual capacities“; the suit is in fact against the officials in their individual capacities; and it can therefore go forward.
As a general matter, individual or “[p]ersonal-capacity suits seek to impose personal liability upon a government official for [wrongful] actions he takes under color of ... law,” and that were taken in the course of his official duties. Kentucky v. Graham, 473 U.S. 159, 165 (1985). By contrast, official capacity suits ultimately seek to hold the entity of which the officer is an agent liable, rather than the official himself: they “generally represent [merely] another way of pleading an action against an entity of which an officer is an agent.” Id. at 165-66 (quoting Monell v. N.Y.C. Dep‘t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)). For this reason, an officer sued in his official capacity is entitled to “forms of sovereign immunity that the entity, qua entity, may possess.” Id. at 167. An officer sued in his individual capacity, in contrast, although entitled to certain “personal immunity defenses, such as objectively reasonable reliance on existing law,” id. at 166-67, cannot claim sovereign immunity from suit, “so long as the relief is sought not from the [government] treasury but from the officer personally.” Alden v. Maine, 527 U.S. 706, 757 (1999).
These same principles fully apply to tribal sovereign immunity. Although “[t]ribal sovereign immunity ‘extends to tribal officials when acting in their official capacity and within the scope of their authority,‘” Cook, 548 F.3d at 727 (emphasis added) (quoting Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir.2002)); see also Miller, 705 F.3d at 928 (same), tribal defendants sued in their individual capacities for money damages are not entitled to sovereign immunity, even though they are sued for actions taken in the course of their official duties. See Maxwell, 708 F.3d at 1089. As the Tenth Circuit has explained:
The general bar against official-capacity claims ... does not mean that tribal officials are immunized from individual-capacity suits arising out of actions they took in their official capacities. ... Rather, it means that tribal officials are immunized from suits brought against them because of their official capacities—that is, because the powers they possess in those capacities enable them to grant the plaintiffs relief on behalf of the tribe.
Following this rule, Maxwell held that two paramedics employed by a tribe (the Viejas Band) who allegedly had provided grossly negligent care to a shooting victim were not entitled to tribal sovereign immunity from a state tort action brought against them in their individual capacities. 708 F.3d at 1079, 1081, 1089-90. Conducting a “remedy-focused analysis,” id. at 1088, Maxwell explained:
Tribal sovereign immunity derives from the same common law immunity principles that shape state and federal sovereign immunity. Normally, a suit like this one—brought against individual officers in their individual capacities—does not implicate sovereign immunity. The plaintiff seeks money damages not from the state treasury but from the officer[s] personally. Due to the essential nature and effect of the relief sought, the sovereign is not the real, substantial party in interest.
Id. at 1087-88 (citations omitted) (internal quotation marks omitted) (alteration in original). Maxwell went on to caution:
In any suit against tribal officers, we must be sensitive to whether “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the [sovereign] from acting, or to compel it to act.”
Id. at 1088 (quoting Shermoen v. United States, 982 F.2d 1312, 1320 (9th Cir.1992)) (alteration in original).
As examples of such suits, Maxwell pointed to Cook, 548 F.3d 718, and Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir.1985). Maxwell, 708 F.3d at 1088-89. In Cook, for example, the plaintiffs’ object was to reach the public treasury through a respondeat superior ruling. See Maxwell, 708 F.3d at 1088; see also Cook, 548 F.3d at 727. The tribe in Cook was thus “the ‘real, substantial party in interest,‘” and the suit against the tribal officers in their official capacities was therefore barred by sovereign immunity principles. Maxwell, 708 F.3d at 1088 (quoting Cook, 548 F.3d at 727). Likewise, in Hardin, sovereign immunity barred the plaintiff from litigating a case against high-ranking tribal council members seeking to hold them individually liable for voting to eject the plaintiff from tribal land. To hold otherwise, we ruled, would interfere with the tribe‘s internal governance. See Hardin, 779 F.2d at 478. ”Hardin was in reality an official capacity suit,” barred by sovereign immunity, because the alternative, to “[h]old[] the defendants liable for their legislative functions[,] would have attacked ‘the very core of tribal sovereignty.‘” Maxwell, 708 F.3d at 1089 (quoting Baugus v. Brunson, 890 F.Supp. 908, 911 (E.D.Cal.1995)).
Maxwell‘s caution about masked official capacity suits aside, it remains “the general rule that individual officers are liable when sued in their individual capacities.” Id. at 1089. So long as any remedy will operate against the officers individually, and not against the sovereign, there is “no reason to give tribal officers broader sovereign immunity protections than state or federal officers.” Id.
The principles reiterated in Maxwell foreclose the tribal defendants’ claim to tribal sovereign immunity in this case. The gamblers have not sued the Tribe. The district court correctly determined that the gamblers are seeking to hold the tribal defendants liable in their individual rather than in their official capacities. They “seek[] money damages ‘not from the [tribal] treasury but from the [tribal defendants] personally.‘” Maxwell, 708 F.3d at 1088 (quoting Alden, 527 U.S. at
In sum, the tribal defendants have not shown that the Tribe is the “real, substantial party in interest.” Id. at 1088. They are not entitled to invoke the Tribe‘s sovereign immunity.
III.
We do not have jurisdiction to decide whether the gamblers have successfully stated a claim against the defendants under
Nevertheless, we note that the intersection of tribal sovereign immunity principles and
The question whether defendants were acting in their official capacities under color of state or under color of tribal law is wholly irrelevant to the tribal sovereign immunity analysis. By its essential nature, an individual or personal capacity suit against an officer seeks to hold the officer personally liable for wrongful conduct taken in the course of her official duties. Graham, 473 U.S. at 165. As the officer personally is the target of the litigation, she may not claim sovereign immunity—and that is so regardless whether she was acting under color of tribal or of state law at the time of the wrongful conduct in question.
By contrast, whether the defendants were acting under color of state or tribal law when they seized the gamblers is a necessary inquiry for the purposes of establishing the essential elements of the gamblers’
Evans exemplifies this distinction. In Evans, non-Indians residing in a city on the Blackfeet Indian Reservation sued local police officers and tribal officials in their individual capacities under
We reversed. Noting, first, that a
This case law merely confirms the well-established rule that a
CONCLUSION
Tribal sovereign immunity is a quasi-jurisdictional issue that, if invoked at the
AFFIRMED.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE