11 NICS App. 73, EARL v. PUYALLUP TRIBE (December 2013)
IN THE puyallup TRIBAL COURT OF APPEALS
puyallup INDIAN RESERVATION
Chester Earl, Plaintiff/Appellant,
v.
Puyallup Tribe of Indians Defendant/Appellee.
No. PUY-CV-02/12-020 (December 4, 2013)
Tribal employee whose employment was terminated filed suit combining (1) an appeal of an adverse administrative ruling on his employment grievance with (2) claims for damages and attorney fees based on alleged due process and equal protection violations under the Indian Civil Rights Act (ICRA). Trial court dismissed suit with prejudice, ruling that employee’s failure to produce the administrative record prevented the trial court from hearing the appeal of the administrative action, and sovereign immunity barred the ICRA claims. On appeal to Court of Appeals, employee waived challenges to trial court’s ruling on the administrative grievance, including tribal court’s ruling that employee bore the burden of producing the administrative record, and sought only a ruling that as a matter of law, ICRA claims are not barred by the tribe’s sovereign immunity. Majority of Court of Appeals holds (1) employee expressly waived appeal of trial court’s rulings concerning production of the record and dismissal of the administrative appeal, (2) tribe’s grievance procedures do not include an explicit waiver of tribe’s sovereign immunity to decide independent ICRA claims; (3) employee’s failure to produce the record of the administrative grievance procedure preclude the trial court and the Court of Appeals from reviewing any claim that the grievance procedures were implemented in a manner that denied the employee due process or equal protection. Dissenting judge would hold that (1) the Court of Appeals has discretion to review trial court ruling regarding production of the record; (2) trial court erred in ruling employee bore sole responsibility for producing the record; (3) trial court erred in dismissing the suit with prejudice; (4) case should be remanded to trial court with instructions that ICRA claims be dismissed without prejudice and administrative appeal reinstated. By majority opinion, trial court order affirmed.
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Randy A. Doucet, Chief Judge; Gregory M. Silverman, Judge; Lisa M. Vanderford-Anderson, Judge. |
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Daniel Kalish, Heyrich Kalish McGuigan PLLC, for Appellant; Ann C. McCormick, Forsberg & Umlauf, P.S., for Appellee. |
Doucet, C.J., in which Vanderford-Anderson, J., concurs:
I. Introduction
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briefs or other similar written arguments, and by oral argument, submitted by the Grievant and the program director, or their respective representatives or attorneys.” Manual § 460.2(c) 4.3. Appellant did not provide the trial court with a record for a Step 4 judicial review because, Appellant stated, he could not afford it.1
In response to the Tribe’s argument that the court was being called upon to make a decision in a vacuum due to the lack of a record, Appellant again waived all rights to argue any substantive problems with the Step 3 decision and asserted that he had a strictly procedural challenge based on who the decision makers were.2 In response to the trial court’s question as to why a standalone appeal of the employment decision was not filed, Appellant responded that he mistakenly thought it would be “more efficient” to combine the Step 4 appeal with the ICRA complaint. The trial court, citing Appellant’s decision to combine the Step 4 appeal with the ICRA claims, dismissed the case with prejudice, holding that the court lacked subject matter jurisdiction and that Appellant’s claims exceeded the scope of relief authorized by the Manual. The trial court twice noted that Appellant did not provide the trial court with the administrative record necessary for a Step 4 appeal under the Tribe’s grievance procedures.
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things, review of whether the grievance proceedings were conducted in conformance with the requirements of the Manual. However, Appellant did not properly pursue a Step 4 appeal. Instead, he combined a Step 4 appeal with an action for civil claims alleging ICRA violations, which exceeds the jurisdiction of the trial court for a Step 4 appeal. Had he submitted the relevant portions of the record of the grievance proceedings, the trial court may have been able to review his due process claims within the scope of its Step 4 authority. Without the record, the trial court could not conduct a Step 4 review of the prior grievance proceedings. Because the grievance procedures only allow for limited jurisdiction in a Step 4 appeal, the trial court did not have jurisdiction to consider independent ICRA claims. By foregoing the record of claimed errors, and objections thereto, during the grievance process, Appellant has not established any basis to support his claims of due process violations. Therefore, we hold that the trial court was correct in dismissing the case for not being provided the record to allow for a proper review for a Step 4 appeal.
The dissent would hold that the trial court erred in dismissing the case for not being provided the record of the grievance proceedings. Except for the final two paragraphs, we agree with the analysis presented in Section VI(A) of the dissenting opinion, infra, regarding the interpretation of section 460.02-4.3 of the Tribe’s Personnel Manual. To wit, we agree that an employee does not bear the sole responsibility for producing the record for a Step 4 appeal. However, that issue was expressly waived by the Appellant, not once, but twice. In his opening brief, Appellant states
Brief of Appellant Chester Earl, 5/29/2013, p. 9. Then, in his Reply Brief, Appellant again states, this time emphatically, that “Chester Earl does not appeal this ruling by the lower court.” Reply Brief of Appellant Chester Earl, 7/9/2013, p. 3 (bold and italic emphases in original).3
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court such as to properly present an issue for appellate review.4 Especially here, where Appellant’s notice of appeal goes on to “specifically” identify the one issue being presented for review, and Appellant’s briefs expressly and repeatedly waive the other key issue that could have been presented for review. We decline to hold that simply citing the title of the order being appealed in any way expands the issues properly before this Court.
Finally, the dissent suggests that in certain circumstances this Court has the discretion and equitable powers to consider issues not raised by the parties. We need not decide this issue here because such circumstances are not present in this case. The dissent cites U.S. v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992); Wright & Miller, Federal Practice and Procedure; and State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995) in support of the contention that this Court may address an issue waived by an appellant. However, Ullah and Wright and Miller address only waiver by omission. Neither of these authorities suggests an appellate court should review an issue that has been expressly waived by an appellant. In Olson, the Washington State Supreme Court held nothing more than that a technical violation of the appellate rules should not effect a waiver. The Olson Court held that where an appellant clearly states its challenge and argues the merits in its opening brief, an issue will not be deemed waived merely because the party neglected to formally assign error to the issue in the precise manner required by the Washington Rules of Appellate Procedure. The Olson Court reviewed the cases relied upon by the Petitioner in that case and concluded that “they stand only for the proposition that when an appellant fails to raise an issue in the assignments of error . . . and fails to present any argument on the issue or provide any legal citation, an appellate court will not consider the merits of that issue.” 126 Wn.2d at 321 (emphasis in original). Here, we are not dealing with an omission by waiver or a mere technical violation of the rules that was cured by actual argument and citation to legal authority. Appellant expressly and repeatedly waived his right to challenge the trial court’s dismissal of his Step 4 appeal, and Appellant’s briefs include no argument or citations to the contrary.
Exactly one hundred years ago, the venerable U.S. Supreme Court Justice Oliver Wendell Holmes wrote “[o]f course the party who brings a suit is master to decide what law he will rely upon . . . .” The Fair v. Kohler Die and Specialty Company, 228 U.S. 22, 25 (1913). This concept has been repeated often since. See, e.g., Maltos v. Sauk-Suiattle, 6 NICS App. 132, 136 (Sauk-Suiattle Tribal Ct. App. 2003), dissenting opinion of Eldemar, J. (“Appellant is master of his own case”). As noted above, Appellant made no effort before the trial court to contest the Tribe’s claim that the Tribe bore no responsibility for producing the record, and Appellant did not avail himself of any of the several motions he might have made to get the relevant portions of the record before the trial court at little or no expense to himself. While still in the trial court, Appellant abandoned any claim that would need to be based on evidence in the record.5 We can
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only speculate as to why Appellant did not pursue alternative approaches to the production of the record in the trial court, and then on appeal chose to waive the issues concerning production of the record and dismissal for lack of a record. Whatever the reasons, we do not find it proper, and we do not believe the cases cited by the dissent suggest it is proper, for this Court to serve as an advocate for a party by resurrecting an issue that has been expressly waived by that party on appeal.
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Silverman, J., dissenting:
Under the Puyallup Tribal Code, an appeal from a final order of the Puyallup Tribal Court is initiated by filing a notice of appeal with the clerk of the Puyallup Tribal Court of Appeals. Puyallup Tribal Code, § 4.16.320. Section 4.16.330, entitled Contents of notice of appeal, states that “[t]he notice of appeal shall specify the parties to the appeal, the order, commitment or judgment appealed from, and a short statement of the reasons or grounds for the appeal.” Puyallup Tribal Code, § 4.16.330 (emphasis added). Thus, pursuant to the Puyallup Tribal Code, to determine the issues on appeal we must look to the Appellant’s Notice of Appeal.
In the present appeal, the first sentence of Appellant’s Notice of Appeal states that “Appellant Chester Earl seeks review by the designated appellate court of the following: Order Denying Plaintiff’s Motion to Vacate The Panel’s Grievance Decision And Granting Defendant’s Motion to Dismiss For Lack of Subject Matter Jurisdiction.” From this first sentence, it is quite clear that the Appellant is challenging the lower court’s dismissal of his action for lack of subject matter jurisdiction. Accordingly, the issue on appeal is whether the lower court has subject matter jurisdiction over the Appellant’s action. An inspection of the Order itself reveals that the lower court held that it lacked subject matter jurisdiction over the Appellant’s claims for three separate reasons. First, the lower court held that it lacks subject matter jurisdiction because some of the Appellant’s claims “exceed the scope of the claims against the Tribe permitted in a Step 4 review as authorized by [the] Tribal Council in Section 460 of the Puyallup Tribe Personnel Manual.” Order Denying Plaintiff’s Motion to Vacate the Panel’s Grievance Decision and Granting Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, 2, February 14th, 2013. Second, it held that it lacks subject matter jurisdiction because the Appellant “has not provided the court with a record of the administrative proceedings at Step 1, 2 and 3 for review.” Id. Third, it held that it lacks subject matter jurisdiction because “[t]here is no explicit waiver of the Tribe’s sovereign immunity for this court to consider [the Appellant’s] claims against the Puyallup Tribe” under the Indian Civil Rights Act.6 Given the lower court’s reasoning to support the dismissal of the Appellant’s action, the issues on appeal may be characterized as a single general issue with three subissues or as three separate issues. For ease of reference and clarity, I shall do the latter. Thus, the issues on appeal may be listed as follows:
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(1) Did the lower court err when it dismissed with prejudice some of Appellant’s claims because they exceeded the scope of the claims against the Tribe permitted in a Step 4 review as authorized by the Tribal Council in Section 460 of the Puyallup Tribe Personnel Manual?
(2) Did the lower court err when it dismissed with prejudice the Appellant’s action because the Appellant did not provide the court with a record of the administrative proceedings at Steps 1, 2 and 3 for review? and
(3) Did the lower court err when it dismissed with prejudice the Appellant’s claims under the Indian Civil Rights Act because there is no explicit waiver of the Tribe’s sovereign immunity from such claims?
At this point, however, we must introduce a complication into our analysis of the Notice of Appeal. The third sentence of the Notice of Appeal reads as follows: “Specifically, Appellant Chester Earl appeals the trial court’s ruling that the Puyallup Tribe has immunity from suit in Tribal Court for alleged violations of the Indian Civil Rights Act of 1968.” Upon reading this sentence, the question naturally arises whether this sentence is intended to limit the appeal to the third issue enumerated above, or whether the Appellant intended merely to highlight that the general issue on appeal—whether the lower court erred when it dismissed with prejudice the Appellant’s claims for lack of subject matter jurisdiction?—includes a question about the Tribe’s sovereign immunity from claims under the Indian Civil Rights Act as a subissue? The use of the sentential adverb ‘Specifically’ suggests the latter. According to the Chambers Dictionary, 11th edition, the word ‘specifically’ means “to mention particularly.”7 In other words, the word ‘specifically’ is not an adverb of limitation, but one which is intended to focus attention on some aspect of what has already been said or written. In light of this understanding of the word ‘specifically’, the best reading of the third sentence of the Notice of Appeal is that it is intended merely to highlight the third issue and not to waive the first two issues enumerated above. This reading of the sentence, moreover, comports with the Appellant’s behavior throughout this case: while making several claims in addition to those under the Indian Civil Rights Act, he has consistently emphasized and foregrounded the latter, apparently believing that they were his most important and significant.
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Jurisdiction for denying Plaintiff’s motion to vacate the panel’s grievance decision and granting Defendant’s motion to dismiss for lack of subject matter jurisdiction. While perhaps correct from a strictly grammatical point of view, insisting on such a hypertechnical grammatical reading of the Appellant’s first sentence seems artificial and requires a sophistication in and knowledge of English grammar beyond the ken of most litigants that come before a court. It seems to me that the better and fairer reading of this sentence is the one that I have given above—that the first sentence both names the Order and specifies the error that forms the basis of the appeal.
[w]e ‘will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief.’ Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir.1986). Three main exceptions to that rule exist. First, we will review an issue not present in an opening brief for ‘good cause shown’, Fed. R. App. P. 2, or ‘if a failure to do so would result in manifest injustice.’ United States v. Loya, 807 F.2d 1483, 1487 (9th Cir.1987). Second, ‘[w]e have discretion to review an issue not raised by appellant ... when it is raised in the appellee's brief.’ In re Riverside Linden Investment Co., 945 F.2d 320, 324 (9th Cir.1991). Third, we may review an issue if the failure to raise the issue properly did not prejudice the defense of the opposing party.
U.S. v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). The Washington Supreme Court has affirmed the ability of an appellate court to reach any issue waived by an appellant in even stronger language. In State v. Olson, relying on Washington Rule of Appellate Procedure 1.2, the Court writes
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not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands, subject to the restrictions in rule 18.8(b).
State v. Olson, 126 Wn.2d 315, 318-319, 893 P.2d 629, 630-31 (1995). The Court continued that
Id. at 323, 633. While the Ullah and Olson cases involved waivers by omission, the general principles relied upon by these courts of appeal apply equally to express waivers: there is nothing inherent in the content of these principles that would suggest that it is proper for an appellate court to reject a waiver by omission, but somehow improper for it to reject an appellant’s express waiver. Thus, we may conclude that in the interest of justice, courts of appeal may reach issues waived by an appellant—whether expressly or by omission—provided that there is no compelling reason not to do so and one of the following conditions obtain: (1) the issues are raised in the respondent’s brief, (2) doing so would prevent a manifest injustice, (3) it would not prejudice the defense of the opposing party, or (4) it would promote justice and facilitate a decision of the case on the merits. The principles and policies that support an appellate court’s authority and discretion to reach issues waived by an appellant apply as much in the Puyallup Tribal Court of Appeals as they do in the courts of appeals of the United States and the State of Washington, and support the view that absent extraordinary circumstances, this discretion should be exercised. As I shall now show, all of these conditions obtain in the case.
we agree with the analysis presented in Section VI(A) of the dissenting opinion, infra, regarding the interpretation of section 460.02-4.3 of the Tribe’s Personnel Manual. To wit, we agree that an employee does not bear the sole responsibility for producing the record for a Step 4 appeal. However, that issue was expressly waived by the Appellant, not once, but twice.
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From this statement by the Majority, we know that all three judges on this appellate panel agree that the lower court improperly dismissed with prejudice the Appellant’s action for failing to provide the lower court with a record of the administrative proceeding of the earlier steps in the Grievance Process. Under the Tribe’s Grievance Process, the Appellant is entitled to have a Step 4 review by the Tribal Court of the first three steps in that process. By improperly dismissing his petition for a Step 4 review with prejudice, the lower court has deprived the Appellant of the review to which he is entitled. To deprive a person of an administrative review that he has requested and to which he is entitled under the law is manifestly unjust. To prevent this manifest injustice, this Court of Appeals has the discretion to reach and decide this issue even if, as the Majority believes, the Appellant has waived it. Indeed, not to do so would only compound the injustice already suffered by the Appellant.
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waives the first two issues enumerated above, the Court can and should still reach and decide those issues. Doing so will prevent injustice, will not prejudice the defense of the opposing party, will reach issues raised in the Respondent’s brief, as well as promote justice and facilitate a decision on the merits. Moreover, there is simply no compelling reason not to do so. For these reasons, in the remainder of this dissent, I offer my opinion on how these three issues should have been decided.
III. How the Two-Headed Monster Came to Be
To ensure the fair treatment of its employees, the Puyallup Tribe of Indians (hereinafter the “Tribe”) created a grievance process that “is available to any employee or former employee who is dissatisfied with any disciplinary action imposed on him [or] her....” Puyallup Tribe of Indians, Personnel Policies and Procedures Manual, Part 460, Employee Grievances and Appeals, 25 (June 6, 2011). Available to former employees who believe that they have been improperly or unfairly terminated, this grievance process has four steps. In Step 1, the aggrieved employee meets informally with the supervisor or program director, the Administrative Manager and someone from his or her Department in an attempt to resolve the matter. If a satisfactory resolution of the matter is not achieved, the aggrieved employee may proceed to the next step in the grievance process. If the program director did not participate in the informal meeting of Step 1, then the aggrieved employee may proceed to Step 2. If, however, the program director did participate in that meeting, then the aggrieved employee may proceed directly to Step 3. Id. at 26. In Step 2, the aggrieved employee meets informally with the program director. If that meeting fails to produce a satisfactory resolution of the matter, then the aggrieved employee may proceed to Step 3. In Step 3, a formal hearing is convened before a personnel committee. The Personnel Committee for a particular grievance comprises three program directors chosen randomly by the Tribe’s Human Resources Department. The hearing is to be conducted according to grievance hearing procedures set forth in Appendix G of the Personnel Policies and
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Procedures Manual. Id. at 27. Following the hearing, the Personnel Committee is required to render its decision in writing and give a copy of it to the aggrieved employee. If the aggrieved employee is dissatisfied with the Personnel Committee’s decision, he or she may proceed to Step 4. Step 4 of the grievance process involves a limited review by the Tribal Court of Steps 1 through 3 of the grievance process. Step 4 is the final step set forth in Part 460 of the Personnel Policies and Procedures Manual, though an aggrieved employee unhappy with the Tribal Court’s decision may appeal this decision to the Tribal Court of Appeals under the Tribe’s Judicial Code. Id at 28.
After the Tribe terminated his employment on June 14th, 2010, Appellant decided to forego the Tribe’s grievance process and instead filed suit in Tribal Court against the Tribe under the Indian Civil Rights Act of 1968. 25 U.S.C. §§ 1301-1304. The gravamen of his complaint was that the manner in which the Tribe terminated his employment violated his rights of due process under section 1302(a)(8) of Title 25. In particular, Appellant argued that the grievance process that was available to aggrieved employees who wished to challenge the termination of their employment would not afford him the minimum requirements of due process insofar as a Step 3 hearing would neither be held before an impartial panel, nor grant him the right to discovery or subpoena witnesses.
Chester Earl v. Puyallup Tribe of Indians et al., No. PUY-CV-08/10-145, 49 (February 11, 2010). Regarding the Tribe’s claim that the Appellant’s lawsuit under the Indian Civil Rights Act is barred by the doctrine of sovereign immunity, the Tribal Court stated simply that “I am not going to reach the issue of tribal sovereignty because I don’t think that’s properly in front of me.” Id.
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later, on February 16, 2012, the Appellant filed the pleadings and commenced the lawsuit from which the appeal now before us is taken.
Hearing Tape, timecode 18:59-19:19 (January 8, 2013). He then asked, “So, how do I make a determination within this Complain and Appeal of Step 3 what applies to the Complaint and what applies to the Step 3 Appeal?” Id. at timecode 19:19-32. The Appellant then answered, again through his attorney, that
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Id. at timecode 19:56-20:17. The Appellant’s attorney then went on to explain,
Id. at timecode 20:23-22:33. Toward the end of the hearing, Judge Long Fox repeats his question: “Why was a complaint and an appeal of Step 3 filed together? Why wasn’t a complaint filed separately? Or why wasn’t a petition for review filed separately? Why put them together?” Id. at timecode 1:00:18-42. And the Appellant, through his attorney, answers,
Id. at timecode 1:00:42-01:22. From these exchanges, it is quite clear why the author of this document placed the petition for review of the Step 3 hearing and the complaint under the Indian Civil Rights Act in a single document. The Appellant’s attorney believed that Mr. Earl had exhausted his administrative remedies as required by the Tribal Court in 2010 and that it would be more efficient to initiate both the appeal of the Step 3 hearing and the complaint under the Indian Civil Rights Act in a single document. He was wrong—as this appeal irrefutably demonstrates—but at least his intent is clear. Such is how this two-headed monster came to be.
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petition for review of the Step 3 hearing so completely commingled that these two proceedings must stand or fall together? Or can they be treated separately for purposes of analysis? The Appellant, through his attorney, has suggested the latter and I agree.
In open court below, Judge Long Fox asked, “What am I to do with the complaint and the petition for review?” Hearing Tape, timecode 17:38-41 (January 8, 2013). Appellant, through his attorney, answered, “Let’s first talk about the petition for review, then I want to talk about the complaint, because I believe they are analytically separate.” Id. at timecode 17:44-48. Later in the hearing, in a passage already quoted, the Appellant reaffirms this belief that the complaint and the petition for a Step 4 review are analytically separate when he states that he could have filed both the complaint and the petition for review as separate actions with separate cause numbers.
Counts I through III all contain alleged violations of the Tribe’s Personnel Policies and Procedures. Count I alleges that the Personnel Policies and Procedures were violated when the Tribe terminated the Appellant’s employment rather than disciplining him in a constructive and progressive manner. Count II alleges that the Personnel Policies and Procedures were violated when the Tribe selected the members of the Personnel Committee charged with conducting the Step 3 hearing because the individuals selected were not fair, unbiased decision-makers. Count III alleges that the Personnel Policies and Procedures were violated when the Tribe subjected the Appellant to conditions that are inappropriate in the workplace. If these allegations were supported by sufficient evidence such that it would be arbitrary or capricious for the Personnel Committee not to find that these violations occurred, then the Personnel Committee would have committed errors within the scope of a Step 4 review. Moreover, if the Tribal Court found that such errors had been committed, then it would be wholly appropriate for the Court to rule, inter alias, that the termination of the Appellant violated the Personnel Policies and Procedures, as requested in paragraph C of the Prayer for Relief. Accordingly, I would hold that Counts I through III together with paragraph C of the Prayer for Relief compose the “Appeal of Step 3”.
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Civil Rights Act as well as an order requiring a trial in Tribal Court to determine whether the Tribe’s termination of the Appellant’s employment was wrongful or unlawful. Paragraph D requests compensation for the Appellant, while paragraph E requests punitive damages, prejudgment interest and attorneys’ fees. While neither paragraph D nor E expressly refers to the Indian Civil Rights Act, compensation, punitive damages, prejudgment interest and attorneys’ fees are unavailable through a Step 4 review and so must be included in the forms of relief sought through the action under the Indian Civil Rights Act.
V. Striking Off the Second of the Jural Cerberus’ Two Heads
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court, it receives its authority to act from Resolution 260393-a (03/26/93). When, however, the Puyallup Tribal Court sits as a court of limited jurisdiction in a Step 4 review of the grievance process, it receives its jurisdictional authority to act from Ordinance 261197 (11/26/97). Accordingly, it is to Ordinance 261197 that we must look to determine when the Appellant will have exhausted his administrative remedies, not to the status of the judge qua judge.
Three aspects of the ordinance clearly demonstrate that the Tribal Council intended that the Tribal Court’s review of the first three steps of the grievance process be viewed as an administrative remedy available to an aggrieved employee who is dissatisfied with the results he or she has obtained in the first three steps of that process. First, the Tribal Council designated the Tribal Court’s review of the first three steps of the grievance as the fourth step in that process. By labeling the Tribal Court’s review as “Step 4”, the Tribal Council demonstrated its intent that it be viewed as a part of the administrative process and not a remedy available to an aggrieved employee outside of the administrative process once that process has concluded. Ordinance 261197, page 5 (11/26/97). Second, the ordinance expressly limits the jurisdiction of the Tribal Court for purposes of the Step 4 review “to a review of the record developed in Steps 1, 2, and 3 of the grievance [process]”, id. at § 4.3, in order to determine (1) whether the first three steps in the grievance process were conducted in substantial conformance with the requirements of the ordinance, and (2) whether the disciplinary action or other action complained of violated the Personnel Policies or other provision of applicable law, subjected the grievant to inappropriate workplace conditions, or imposed inappropriate workplace obligations on the grievant, id at § 4.4. By confining the Tribal Court’s Step 4 review to the issues intended to be resolved by the grievance process, the policies intended to be advanced by the grievance process, and the procedures intended to be followed in the grievance process, the Tribal Council clearly telegraphed its intent that the Step 4 review was included as a part of this administrative process in order to ensure that the process functioned as intended. Third, the language used in the ordinance to permit an appeal from the decision of the Tribal Court conducting the Step 4 review also indicates that the Tribal Council intended the Tribal Court’s Step 4 review to be part of the grievance process. Section 4.6 of the ordinance states that “[a]ppeals from rulings of the Tribal Court under the grievance procedure shall be governed by the Tribe’s Judicial Code ....” Id. at 4.6 (emphasis added). This language characterizes the Tribal Court as acting under the grievance process, not outside of the grievance process. In other words, the remedies available through a Step 4 review are remedies available through or under the grievance process and, a fortiori, are administrative remedies. These three aspects of the ordinance clearly demonstrate that the Tribal Court’s Step 4 review is an administrative remedy available to an aggrieved employee who
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believes that the first three steps of the grievance process failed to function in the manner intended by the Tribal Council. Accordingly, I would so hold.
Having determined that the Tribal Court’s Step 4 review is an administrative remedy, it becomes immediately clear how the Appellant’s complaint under the Indian Civil Rights Act must be handled. The issue whether the Appellant may bring an action under the Indian Civil Rights Act before exhausting the administrative remedies available through the Tribe’s grievance process has already been litigated by the parties to the present lawsuit in Earl v. Puyallup Tribe of Indians et. al., No. PUY-CV-08/10-145 (2011). As noted earlier, in that case, the Tribal Court held that the Appellant had to exhaust the administrative remedies available to him through the grievance process before bringing an action under the Indian Civil Rights Act, found that the Appellant had not done so, and dismissed the complaint without prejudice. In the present case, the Appellant has recreated essentially the same situation: he has filed a complaint under the Indian Civil Rights Act before exhausting the administrative remedies available to him through the Tribe’s grievance process. We are confronted with the same issue, between the same parties, with the sole difference that this issue has already been decided by a final judgment of the Tribal Court in an earlier case. I agree with the holding of the Tribal Court in 2011 that the Appellant must exhaust his administrative remedies before he can bring an action in Tribal Court under the Indian Civil Rights Act. The rule the Tribal Court applied is well-settled and accepted in all jurisdictions. Accordingly, I would follow the example of the Tribal Court in 2011 and dismiss the Appellant’s complaint.
Indeed, the requirement that a person exhaust his administrative remedies before filing a lawsuit in Tribal Court is not only the law of the Puyallup Tribe of Indians, but it is also the law of the case. Under the doctrine of res judicata, a valid and final judgment on an issue or cause of action in an earlier lawsuit is binding on the same parties in a subsequent lawsuit with respect to the issue or cause of action adjudicated in the earlier action. See Restatement, Second, Judgments, § 17 (1982). In particular, “[a] valid and final judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.” Id. at § 19. While it is often said that a judgment of dismissal without prejudice is not a final judgment for purposes of res judicata, this statement of the rule must be qualified. When a court dismisses an action without prejudice, “[a]ll that [is] intended by the phrase ‘without prejudice’ [is] to reserve future action based upon changed circumstances.” Fiumara v. American Surety Co. of New York, 346 Pa. 584, 593, 31 A.2d 283, 287 (1943). While the circumstances that led to the dismissal remain unchanged, the doctrine of res judicata applies and the action is barred. Developments in the Law — Res Judicata, 65 Harv. L. Rev. 818, 887 (1952) (“Dismissal without prejudice usually allows the unsuccessful plaintiff to sue again on the same cause in any court. It has been held, however, that he may not bring a second suit where the facts have not changed since the prior suit.”) For present purposes, the formulation of this principle in The Restatement, Second, of Judgments is especially apposite:
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matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.
Restatement, Second, Judgments at § 20.
In Earl v. Puyallup Tribe of Indians et. al. (2011), the Appellant’s complaint under the Indian Civil Rights Act was dismissed without prejudice because he had failed to exhaust the administrative remedies available to him through the Tribe’s grievance process. At the present time (and, therefore, at the time the Appellant’s complaint under the Indian Civil Rights Act was refiled in the present action), the Appellant has still not exhausted the administrative remedies available to him through the Tribe’s grievance process. Accordingly, the circumstances that led to the dismissal of his prior complaint under the Indian Civil Rights Act in the prior lawsuit have not changed, and Appellant’s present action under the Indian Civil Rights Act is barred by the doctrine of res judicata.
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VI. The Step 4 Review
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argument, submitted by the Grievant and the program director, or their respective representatives or attorneys. Written briefs and oral argument shall be submitted on an expedited schedule established by the Court in each case.
11 NICS App. 73, EARL v. PUYALLUP TRIBE (December 2013) p. 95
Thus, the absence of the word ‘and’ tells us that the nonfinite verb phrase beginning with the past participle ‘submitted’ must qualify the conjunction ‘legal briefs and … oral arguments’ and not the word ‘record’. This interpretation is given further support by the next sentence which states that “legal briefs and oral argument shall be submitted on an expedited schedule”. The immediate repetition of the past participle ‘submitted’ with the conjunction ‘legal briefs and oral arguments’ strongly suggests that this was the phrase it qualified in the preceding sentence as well. Since under this first reading of section 460.02-4.3 the phrase ‘submitted by the grievant and program director’ is attached to the conjunction ‘legal briefs and ... oral arguments’ and not to the word ‘record’, the section is silent on who has responsibility to provide the Tribal Court with the record developed in Steps 1, 2 and 3 of the grievance process.
Nonetheless, I am sensitive to the Tribal Court’s legitimate concern that it cannot proceed with a Step 4 review of Steps 1, 2 and 3 of the grievance process without the record developed in Steps 1, 2 and 3. The proper response to this problem, however, is not dismissing the action with prejudice, but an order that requires in an equitable fashion that the parties provide the court with the information it needs. In the present matter, the Tribal Court learned from the Appellant, through his attorney, that the reason the Appellant did not provide the Court with the needed record was because the Appellant could not afford the cost of having the tapes of the Step 3 hearing transcribed. Hearing Tape, timecode 14:12-49 (January 8, 2013). The Tribe never stated why it did not provide the Tribal Court with the needed record. In such circumstances, it would have been proper for the court to request an affidavit from the Appellant attesting to his lack of resources and then order the Tribe to produce the record. Alternatively, as the Tribal Court itself noted, it could ask the parties to stipulate to the needed information. Or the Tribal Court could have inquired further into the extent of the Appellant’s resources and ordered some equitable manner of sharing the costs of having the hearing tapes transcribed. Finally, the Tribal Court could have ordered the parties to submit the tapes of the Step 3 hearing as an adequate
11 NICS App. 73, EARL v. PUYALLUP TRIBE (December 2013) p. 96
record of the proceedings. Any of these alternatives would have provided the Tribal Court with the information it needed to proceed with the Step 4 review.
Section 460.02-4.4 states that
4.4 The Court’s review shall be limited to the following issues:
4.4.1 Whether the disciplinary action or other action complained of:
4.4.1.1 Violated the Personnel Policies or other provision of applicable law:
4.4.1.2 Subjected the Grievant to conditions that are inappropriate in the workplace; or
4.4.1.3 Imposed on the Grievant requirements or obligations inappropriate in the workplace;
11 NICS App. 73, EARL v. PUYALLUP TRIBE (December 2013) p. 97
biased; (4) that the Tribe improperly refused to provide him with documents that were necessary for him to defend himself; (5) that in Step 3, the Personnel Committee improperly refused to compel various witnesses to speak with the Appellant’s attorney and to testify at the Step 3 hearing; and (6) that in Step 3, the Personnel Committee improperly refused to consider important evidence against the Tribe.
11 NICS App. 73, EARL v. PUYALLUP TRIBE (December 2013) p. 98
The complaint made by the Appellant is essentially the same for each of these claims. In the circumstance giving rise to each claim, the Appellant claims that he was treated unfairly. The Appellant claims that the program directors appointed to the Personnel Committee were unfair and biased decision-makers, that the Tribe’s withholding documents essential to his defense was unfair, that the Tribe’s refusal to require other employees of the Tribe to testify unfairly compromised his ability to challenge the termination of his employment, and that the Personnel Committee’s refusal to consider important evidence against the Tribe was unfair. The question presented by each of these claims is the same: is it within the jurisdiction of the Tribal Court when it is conducting a Step 4 review to consider issues concerning whether a Grievant’s treatment in the course of the grievance process was fair or unfair?
The answer to this question turns on whether the Tribe’s Personnel Policies include a policy of fair treatment of its current and former employees. If it does, then such issues fall within the scope of paragraph (1) of subsection 4.4.1 of section 4.4 and, a fortiori, within the jurisdiction of the Tribal Court to consider when it conducts a Step 4 review. If the Tribe’s Personnel Policies do not include a policy of fair treatment of its current and former employees, then such issues would fall outside the scope of paragraph (1) and, therefore, outside the jurisdiction of the Tribal Court when it conducts a Step 4 review.
The Tribe’s Personnel Policies and Procedures Manuals, adopted by Tribal Council Resolution 86630 (04/30/86), contains the Tribe’s Personnel Policies as well as the procedures intended to implement those policies. In the Foreword to the Personnel Policies and Procedures, the Tribal Council writes that the personnel policies of the Tribe are intended to “assure employees receive fair treatment and assure that people are hired and terminated and have a system of recourse that is reasonable.” Puyallup Tribe of Indians, Personnel Policies and Procedures Manual 1 (June 6, 2011). In the very next paragraph of the Foreword, the Tribal Council also states that the procedures are intended to be “rules or steps for the fair treatment of employees.” Id. Finally, still further in the Foreword, the Tribal Council notes that the “approaches to all matters affecting the status of employees of the Puyallup Tribe of Indians” are intended to be “equitable”, id., and that “[t]his manual ha[s] been prepared as a ‘policy’ statement to guide supervisors and administrators.” Id.
11 NICS App. 73, EARL v. PUYALLUP TRIBE (December 2013) p. 99
immediately that issues concerning whether a Grievant’s treatment in the grievance process violated the Tribe’s personnel policy of fair treatment of current and past employees are within the scope of paragraph (1) of subsection 4.4.1 of section 4.4. and, therefore, that it is within the jurisdiction of the Tribal Court when it is conducting a Step 4 review to consider such issues. Accordingly, I would hold that the Appellant’s remaining claims concerning the fairness of his treatment in the grievance process are all within the jurisdiction of the Tribal Court when it conducts a Step 4 review—whether such alleged unfairness is claimed to have resulted from rules or procedures that fail to reflect the Tribe’s commitment to the fair treatment of its employees, past and present, or from the actions of individuals participating in the grievance process.
In sum, for the reasons set forth above, I would order that the judgment of the trial court on all counts be reversed, that the Complaint under the Indian Civil Rights Act be dismissed without prejudice, and that the Petition for a Step 4 Review be remanded to the trial court for further proceedings consistent with this dissenting opinion.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
See, e.g., Plaintiff’s Reply filed in the trial court proceeding on December 19, 2012, at p. 5, ll 15-20 (“This Court does not need a transcript to conclude that the procedure was biased, that the panel was not impartial and unbiased, and that the procedure did not provide Mr. Earl with the protections of ICRA.”) (emphasis added).
We also find it significant that Appellant’s waiver is not limited to the narrow issue of who bore the responsibility of producing the record of the grievance proceedings. Instead, in both his opening and reply briefs, Appellant expressly waives any challenge to the trial court’s dismissal of Appellant’s claim “that the grievance procedure violated the Tribe’s own procedures.” Brief of Appellant Chester Earl, 5/29/2013, p. 9. See, also, Reply Brief of Appellant Chester Earl, 7/9/2013, p. 3 (Appellant expressly waives appeal of the trial court’s conclusion “that it could not decide whether the Tribe violated its own internal policies . . . .”). By doing so, Appellant has abandoned any administrative remedies that might have been available to him, and instead advanced only the ICRA claims he sought to pursue in his original complaint that was dismissed without prejudice in February 2011.
See Plaintiff’s Reply filed in the trial court proceeding on December 19, 2012, at p. 5, ll 8-20 (stating Appellant’s claims before the trial court “are not based on the evidence” [bold and italic emphases in original]) and n. 1 (acknowledging waiver of two specific arguments because Appellant “was unable to afford the cost of providing the transcripts) .