FILED
United States Court of Appeals
Tenth Circuit
AUG 4 1999
PATRICK FISHER
Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
_____________________________
THE OSAGE TRIBAL COUNCIL, on
behalf of the OSAGE TRIBE OF
INDIANS,
Petitioner,
v.
UNITED STATES DEPARTMENT
OF LABOR,
Respondent,
CHRIS WHITE,
Intervenor.
No. 97-9564
_____________________________
APPEAL FROM DECISION OF THE
ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR
(A.R.B. No. 96-137)
_____________________________
F. Browning Pipestem (and Dena L. Silliman with him on the briefs), F. Browning Pipestem &
Associates, Norman, Oklahoma, for Petitioner, the Osage Tribal Council.
Ellen L. Beard, Senior Appellate Attorney (Marvin Krislov, Deputy Solicitor for National Operations,
and Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, with
her on the brief), U.S. Department of Labor, Washington, D.C., for Respondent, U.S. Department of
Labor.
John T. Edwards, Oklahoma City, Oklahoma, for Intervenor, Chris White.
_____________________________
Before ANDERSON, HENRY, and MURPHY, Circuit Judges.
_____________________________
HENRY, Circuit Judge.
_____________________________
The Osage Tribal Council (the Council) petitions for review of an order
by the Administrative Review Board of the Department of Labor in a proceeding under the
employee protection provisions of the Safe Drinking Water Act (SDWA), 42 U.S.C.
§ 300j-9(i). The Board's order rejected the Council's assertion that it was entitled to
tribal immunity, found for the complainant, Chris White, and remanded the matter to the
administrative law judge for a determination of the amount of back pay, attorneys' fees, and
costs to which Mr. White was entitled. We hold that the Board's denial of sovereign
immunity is reviewable under the collateral order doctrine, affirm the Board's
determination that the SDWA abrogates tribal immunity, and remand to the Board for
further proceedings. We do not address the intervenor's arguments as the order is not yet
final and thus not reviewable as to his claims.
I. BACKGROUND
Chris White was employed by the Council as an environmental
inspector. He was directly supervised by both Council and Environmental Protection
Agency (EPA) employees, and was responsible for monitoring the Council's compliance
with the underground injection control provisions of the SDWA. His duties included filing
violation reports, which could and did trigger SDWA enforcement actions from the
regional EPA office.
In late spring of 1994, the EPA directed its inspectors, including Mr.
White, to begin monitoring compliance with the SDWA's surface pollution provisions.
Inspectors were directed to send copies of any reports of surface pollution violations on
the Osage mineral estate to the local Bureau of Indian Affairs (BIA) agency offices in
addition to the regional EPA office. Testimony of Mr. White's supervisors established that
he performed these duties exceptionally.
In February, 1995, although no one had ever complained before, Mr.
White's immediate tribal supervisor, Patricia Beasley, was notified of certain complaints
about him from BIA employees and mineral lease operators. Later that month, the joint
Council-EPA committee met to discuss the complaints. On March 15, this committee
issued a memorandum to Ms. Beasley directing her to fire Mr. White. The memorandum
referenced various specific complaints against White by oil leaseholders and cited
"serious misconduct" and "disloyalty" as the reasons for his
termination.
Mr. White alleged, however, that the Council terminated him for
engaging in acts protected under the SDWA filing environmental violation reports
because the Council was concerned the reports would affect oil production on the Osage
mineral estate. The Council responded that Mr. White only filed his suit for political
reasons, owing to the political upheaval and infighting between two factions, the Council
(the traditional governing body) and the Osage National Council (a recently formed
competitor).
After Mr. White was terminated, he had a hearing before his
supervisors, who upheld his termination on April 6, 1995. He did not appeal the decision to
the joint Council-EPA Committee. Instead, Mr. White filed a complaint of discrimination
with the Secretary of Labor ("the Secretary") under the SDWA's whistle blower
employee protection provisions. See 42 U.S.C. § 300j-9(i). In response,
the Council argued that the SDWA had not explicitly abrogated its tribal sovereign
immunity, and therefore the Council could not be held subject to the SDWA's enforcement
provisions.
Following a hearing, the Administrative Law Judge (ALJ) issued a
recommended order that rejected the Council's immunity claim and found in favor of
White. On administrative appeal, the Administrative Review Board rejected the ALJ's
recommendation of punitive damages but otherwise adopted the order on all issues, and
remanded to the ALJ for a determination of damages and costs.
On October 7, 1997, the Council petitioned for review of the Board's
decision. We have jurisdiction to review orders of the Secretary of Labor under 42 U.S.C.
§ 300j-9(i)(3)(A). Under Fed. R. App. P. 15(a), the Department of Labor is the
respondent on appeal. The original complainant, Mr. White, appears as an intervener.
See Fed. R. App. P. 15(d).
On October 27, the Secretary filed a motion to dismiss on the grounds
that the Board's action below did not yet constitute a final appealable order. The ALJ
returned its pending administrative case to the Administrative Review Board pending the
outcome of the appeal in this case.
II. Discussion
A. Whether the Secretary's Ruling is Reviewable on Appeal as a Collateral
Order
We must first address the threshold question of whether the
Secretary's order rejecting the Council's sovereign immunity defense with respect to the
SDWA is reviewable notwithstanding lack of a final judgment. As the Supreme Court has
noted, "at least in the absence of an appealable collateral order, the federal courts
may exercise jurisdiction only over a final [administrative agency] order." Bell
v. New Jersey, 461 U.S. 773, 778-79 (1983) (internal citations omitted). Here,
however, the Council argues that its petition is just such an immediately appealable
collateral order.
In limited circumstances, the collateral order doctrine allows
interlocutory appeal of an order that does not actually end the litigation. SeeCohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). As the
Supreme Court has explained, "[i]n Cohen, we held that §1291
permits appeals not only from a final decision by which a district court disassociates itself
from a case, but also from a small category of decisions that, although they do not end the
litigation, must nonetheless be considered 'final.'"Swint v. Chambers
County Comm'n, 115 S. Ct. 1203, 1208 (1995). An order falls within the
collateral order doctrine if (1) it conclusively determines the disputed question, (2) resolves an
important issue completely separate from the merits of the case, and (3) is effectively unreviewable on
appeal from a final judgment. SeeUnited States v. Leon, 132 F.3d 583, 587
(10th Cir. 1997).
The Eleventh Circuit has held that the denial of a tribal immunity
claim satisfies the collateral order doctrine. SeeTamiami Partners, Ltd. v.
Miccosukee Tribe of Indians of Florida, 63 F.3d 1030, 1050 (11th Cir. 1995). The
Tamiami court analogized the tribal immunity claim to the Supreme Court's
treatment of a qualified immunity claim in Mitchell v. Forsyth, 472 U.S. 511,
525 (1985). As the circuit court noted, in Mitchell, the Supreme
Court treated the third Cohen factor effective unreviewability on appeal as
predominant. Id. The Mitchell Court held that a denial of
qualified immunity was immediately reviewable as a collateral order because qualified
immunity shared the essential attribute of absolute immunity: "The entitlement is an
immunity from suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to
trial." Mitchell, 472 at 526 (emphasis added). Thus, the Supreme Court
held, "the reasoning that underlies the immediate appealability of an order denying
absolute immunity indicate to us that the denial of qualified immunity should be similarly
appealable." Id. at 526-27. Following suit, the Eleventh Circuit
in Tamiami held that because tribal immunity similarly guarantees immunity
against suit, the district court's denial of tribal immunity was similarly immediately
appealable under the collateral order doctrine. Id.
Following the Supreme Court's guidance in Mitchell, we
join the Eleventh Circuit in holding that the denial of tribal immunity is an
immediately appealable collateral order. As above, the major part of the inquiry is whether
the third Cohen factor is met, i.e., whether the order is effectively unreviewable
on appeal. As in Mitchell, that inquiry focuses on whether the immunity at issue
shares the essential attribute of absolute immunity, that is, immunity from suit. The
Supreme Court has very clearly held that tribal immunity does indeed guarantee immunity
from suit, and not merely a defense to liability. SeeKiowa Tribe of Okla. v.
Manufacturing Techs., Inc., 118 S. Ct. 1700, 1704 (1998). Thus, tribal
immunity is of the sort that is immediately appealable.
Here, however, the Council has already borne much of the burden of
"trial" in the administrative proceeding, and the Secretary argues thus that, in
effect, the Council has nothing left to lose and the third Cohen factor is not met.
We disagree. Although, ideally, the question of the Council's immunity should have been
decided earlier in the administrative process such that Council would not have borne any
possibly erroneous trial burden, here the Council still faces the burden of calculating
damages in the proceeding on remand. Were this case erroneously permitted to proceed
further, the Council's absolute entitlement to immunity from suit would still be effectively
lost. Thus, the third Cohen factor is satisfied.
Yet, as in Mitchell, for the order to be immediately
appealable under the collateral order doctrine, it must also satisfy two additional criteria:
the remaining first and second Cohen factors. Here, that inquiry is easy. The
first Cohen factor is met because, as the Secretary conceded, the question of
tribal sovereignty is conclusive of whether the tribe must bear the burden of the
administrative proceeding. The second Cohen factor is also met because the
question of tribal sovereignty is distinct from the underlying merits of whether the Council
violated Mr. White's whistle blower rights under the SDWA.
Thus, we hold that the Secretary's order as to sovereign immunity may
be immediately appealed under the collateral order doctrine, and deny the Secretary's
motion to dismiss the petition for review. At the same time, we do not reach the merits of
the order, as the remainder of the order is not subject to the collateral order doctrine, is not
yet final, and is thus not reviewable. Accordingly, we do not address the intervenor's
arguments as to the appropriateness of punitive damages.
B. Whether the SDWA Abrogates Tribal Sovereign Immunity
The Council argues that Congress failed to unequivocally abrogate
tribal immunity in enacting the whistle blower provision of the SDWA. We review de novo
the legal question of whether Congress has abrogated tribal immunity. SeeUte Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263 (10th Cir. 1998).
As a preliminary matter, the Secretary has raised the issue of whether
the tribe may even assert its immunity in this administrative proceeding. The Secretary
argues it is the real party respondent and the Council cannot assert its immunity against a
representative of the federal sovereign. Because we conclude that the SDWA has explicitly
abrogated tribal immunity in any case, we need not address the merits of this argument.1
1The issue of whether immunity is
validly asserted arguably precedes the issue of whether Congress has abrogated immunity,
however, resolution of this issue may implicate issues of constitutional dimension.
Therefore, we follow the "fundamental and longstanding principle of judicial
restraint" which requires that we "avoid reaching constitutional questions in
advance of the necessity of deciding them." Lyng v. Northwest Indian Cemetery
Protective Ass'n, 485 U.S. 439, 445 (1988).