Michelle Rivera, Plaintiff/Appellant, v. Puyallup Tribe of Indians, Defendant/Appellee.

12 NICS App. 44, RIVERA v. PUYALLUP TRIBE (April 2014)

IN THE Puyallup TRIBAL COURT OF APPEALS

Puyallup INDIAN RESERVATION

Michelle Rivera, Plaintiff/Appellant,

Puyallup Tribe of Indians, Defendant/Appellee.

NO. PUY-CV-08/11-137 (April 14, 2014)

Tribal member whose employment was terminated filed complaint seeking declaratory relief, compensatory damages, and punitive damages for wrongful discharge, infliction of emotional distress, denial of equal protection, denial of due process, withholding of records, and other claims. In an initial order, trial court found tribal member was an employee, rather than a political appointee as argued by the tribe, and was therefore eligible to pursue an administrative grievance in accord with tribe’s employee manual, but trial court also dismissed all claims beyond the scope of this administrative remedy. Rather than appeal this order or pursue an administrative grievance, employee moved for summary judgment claiming no material fact remained in dispute regarding wrongful termination claim. In a second order, trial court denied the motion for summary judgment and dismissed remaining claim of wrongful termination without prejudice. Employee then sought to appeal both trial court orders dismissing her various claims. Court of Appeals holds that neither order is final for purposes of appeal because employee retained the right to pursue the administrative remedy and to return to court if dissatisfied with the result. Case remanded to allow exhaustion of administrative remedies.

Before:	Michelle Demmert, Chief Judge; Ric Kilmer, Judge; Ron J. Whitener, Judge.
Appearances:	Mark G. Olson, Attorney for Appellant; Ann C. McCormick, Fossberg & Umlauf, for Appellee.

OPINION

Whitener, J:

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I. Introduction

Plaintiff/Appellant Michele Rivera (Rivera), appeals the decisions of the Puyallup Tribal Court, Hon. Randy Doucet pro tempore, issued on May 6, 2013 (“May Order”) and on August 16, 2013 (“August Order”)1, and which together dismissed all claims of Rivera. Rivera filed Plaintiff’s Motion for Reconsideration on September 3, 2013, which was denied by the trial court on September 30th, 2013. Rivera timely filed this appeal on 9/13/13.

II. Factual and Procedural History

Plaintiff/Appellant Michelle Rivera is an enrolled member of the Puyallup Tribe of Indians (Tribe) and in March of 1995 was appointed by the Puyallup Tribal Council (Council) as “Tribal Council Secretary” pursuant to Council Resolution No. 310595A, 5/31/1995. May Order at 2. At the time of her termination, she was employed as the Director of the Puyallup Tribal Council Office, another appointment made by Council Resolution No. 100699J, June 10, 1999. Id. Rivera held this position until December 9, 20102, when the Council adopted Resolutions No. 1209010 A-D, which reorganized the Tribal Council Office and placed Rivera and five other “Tribal Council secretaries on lay-off status.” Id.

Pursuant to this lay-off, Rivera received notice from the Tribe of the timelines for filing a grievance under the Tribe’s Personnel Policy and Procedures Manual. Id. Rivera did submit an administrative grievance on December 14, 2010 and on January 19, 2011 the Tribe’s Human Resources Department issued a letter to Rivera that her position was an appointed position and thus was not eligible for the employee grievance policy. Id. On May 12, 2012, Rivera filed an “Administrative Claim” with the Tribe under the Tribe’s Tort Claims Act. May Order at 3. After no response for 90 days from the Tribe, Rivera filed the Complaint with the Tribal Court on August 12, 2012 which underlies this appeal.

In her Complaint, Rivera sought several forms of relief. First, she sought a declaratory judgment that Tribal Council Resolutions No. 1209010 A-D were invalid under the Tribe’s Administrative Procedures Act, Chapter 2.08 of the Puyallup Tribal Code. 2nd Amended Complaint at 11. Her second claim was for wrongful termination and resulting monetary damages for lost compensation, emotional distress, punitive damages and attorneys’ fees. Id. at 14. Her third claim was for “Infliction of Emotional Distress” and monetary damages for emotional distress and punitive damages. Id. at 14. Her fourth claim was for a “Violation of Due Process under the Puyallup Tribal Constitution” for which she sought monetary damages for lost compensation, emotional distress, punitive damages and attorneys’ fees. Id. at 14-15. Rivera’s fifth claim was for a finding of a “Violation of Equal Protection and Due Process Under

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the Indian Civil Rights Act of 1968” for which she sought monetary damages for lost compensation, emotional distress, punitive damages and attorneys’ fees. Id. at 15. Her 6th claim was for “Improper Withholding of Personnel Records” for which she sought copies of her personnel records, punitive damages and attorneys’ fees. Id. at 16-17. Her 7th and final claim was for “Improper Withholding of Public Records” for which she sought “punitive damages and attorneys’ fees.” Id at 18.

The Tribe filed “Defendant’s Motion to Dismiss All Claims for Lack of Subject Matter Jurisdiction Based upon Tribal Sovereign Immunity” on February 11, 2013. In its Motion to Dismiss, the Tribe asserted that no sovereign immunity waiver was executed by the Tribal Council other than the limited waiver in the Puyallup Tribal Tort Claims Act, PTC 4.12.010. Defendant’s Motion to Dismiss at 23-24. The Tribe asserted that the sovereign immunity waiver in the Puyallup Tribal Tort Claims Act did not authorize suits on the subject matters for which relief was sought in the Complaint. Id. at 3.

After hearing, the Tribal Court made several findings in its May Order. First it found that Ms. Rivera was an employee, not an appointee. The Court noted that Article III, Section 3 of the Constitution and Bylaws of the Puyallup Tribe of the State of Washington (Puyallup Constitution) creates the position of “a Secretary”:

The Council so organized shall elect from within its own number (1) a Chairman; (2) a Vice-Chairman; and from within or without, (3) a Secretary, and (4) a Treasurer; and may appoint or employ such officers or committees, as may be deemed necessary.

May Order at 4. The Tribal Court also noted that the Puyallup Constitution’s Bylaws set out the duties of the Secretary:

The Secretary of the Council shall conduct all Tribal correspondence and shall keep an accurate record of all matters transacted at Council meetings. It shall be his duty to submit promptly to the Superintendent of the jurisdiction, and Commissioner of Indian Affairs, copies of all minutes of regular and special meetings of the Tribal Council.

Bylaws of the Puyallup Tribe for the Puyallup Reservation, Section 3 (Bylaws). The Tribal Court found that the Bylaws envisioned a single person being the Secretary. May Order at 4. The Tribal Court also found relevant the language of the resolution placing Ms. Rivera into her initial position, which read that “…the Puyallup Tribal Council has the authority to appoint or employ, a Secretary…[and] the Puyallup Tribal Council wishes to employ a secretary to record…[and] the Puyallup Tribal Council does hereby employ…” Id. at 4-5. The Tribal Court noted this same language was used in the later resolution appointing Rivera to her position as Director to Tribal Council Offices. Id. Based on these findings, the Tribal Court ruled that Ms. Rivera was an employee of the Tribe and not an appointee. Id. As to the remaining claims, the Tribal Court found that the claims for Declaratory Relief, Wrongful Discharge, Infliction of Emotional Distress and Denial of Equal Protection Opportunity and Due Process were not

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allowed under the Tribal Torts Claims Act, Puyallup Tribal Code, Chapter 4.12, and were thus barred by sovereign immunity. Id. at 5-7. The Court further found that no waiver existed pursuant to the Indian Civil Rights Act, Id at 7-8, the Puyallup Constitution, Id. at 8, or the Puyallup Administrative Procedures Act, Puyallup Tribal Code, Chapter 2.08. Id at 8-9. The Tribal Court did, however, find some relief for Rivera in the Puyallup Personnel Policies and Procedures Manual. The Tribal Court found that based on its ruling that Rivera was an employee, that the Human Resources Department’s decision that she was an appointee, not an employee, and thus ineligible for the employment grievance process, was incorrect. Id. at 11. Based on this finding, the Tribal Court did not dismiss Rivera’s claims under the Manual. Finally, the Court stated that “[a]ll issues related to discovery are reserved to allow the parties to evaluate the Plaintiff’s requests for discovery based on this ruling on the Tribe’s Motion to Dismiss.” Id. at 12.

After the May Order dismissing all claims except those under the Personnel Policies and Procedures Manual, Rivera moved for summary judgment that there were no genuine issues of material fact underlying her wrongful termination claim, and seeking reinstatement to her former position and back pay. Plaintiff’s Motion for Summary Judgment at 1-2 (June 28, 2013). The Tribe opposed the motion and counter-moved to dismiss the remaining claim without prejudice to require Rivera to exhaust administrative remedies. Opposition of Defendant to Plaintiff’s Motion for Summary Judgment; Defendant’s Counter-Motion to Dismiss without Prejudice to Exhaust Administrative Remedies under the Personnel Manual (Opposition/Counter-Motion) at 1. The Tribe noted that the Policies and Procedures Manual does not authorize tribal court involvement until three administrative steps are completed and then “[t]he Puyallup Tribal Court shall have jurisdiction over such actions, limited to a review of the record developed in Steps 1, 2, and 3 of the grievance…” Id at 10-11. The Tribal Court agreed with this assertion and dismissed without prejudice the complaint. Ruling on Plaintiff’s Motion for Summary Judgment and Defendant’s Counter Motion to Dismiss at 1-2 (August 16, 2013). Rivera filed a Motion for Reconsideration on September 3, 2013, which after full briefing by both Parties, was denied by the Tribal Court. Ruling on Plaintiff’s Motion for Reconsideration (September 30, 2013). Prior to the ruling on the Motion for Reconsideration, Rivera filed her Notice of Appeal on September 13, 2013.

III. Discussion

On December 13, 2013 this Court entered an order requiring the parties “to provide briefing regarding this Court’s jurisdiction” over the matters presented herein. The Puyallup Tribal Rules of Appellate Procedure provide that “[a]ny party aggrieved by any final order, commitment, or judgment of the Puyallup Tribal Court may appeal such order, commitment or judgment to the Appellate Court by filing a notice of appeal within 30 days after such order, commitment or judgment has been entered.” PTC § 4.16.320. In this case, Plaintiff/Appellant Michelle Rivera filed her notice of appeal on September 13, 2013. A threshold issue, then, is whether the May Order and August Order are “final orders” for the purposes of applying PTC § 4.16.320.

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A. The May Order is not a “final order” for the purposes of applying PTC § 4.16.320.

This Court formerly noted of the May 6, 2013 order: “While that order did not end the litigation, and therefore an appeal filed at that time might have been considered interlocutory in nature and disfavored as such, the May Order does appear to be a ‘final order’ in regards to the claims dismissed therein.” Order Requiring Briefing on Jurisdiction at 1. Having considered the arguments of the parties, the provisions of the Puyallup Tribal Codes, and the reasoning of other courts with regard to the issues presented herein, we now find that the May Order, which dismissed some but not all of Ms. Rivera’s claims, was not a final order for the purposes of applying PTC § 4.16.320.

We begin with the observation that

as a general matter, all appellate courts disapprove of interlocutory and piecemeal appeals for valid policy reasons. The gold standard is to allow one appeal after all the trial court proceedings are at an end and there is a final judgment to review. Judicial economy, fairness to the parties and the court, and numerous other justifications argue for this standard.

Confederated Tribes of the Chehalis Indian Reservation v. Hillstrom, 9 NICS App. 94 (Chehalis Tribal Ct. App. 2010) (citations omitted). In keeping with this principle, the federal courts have adopted Federal Rule of Civil Procedure 54(b), which provides: “When an action presents more than one claim for relief . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay” (emphasis added). This rule “was originally adopted . . . to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case,” but not to overturn the well-settled rule “prohibit[ing] piecemeal disposal of litigation and permit[ing] appeals only from final judgments except in those special instances covered by statute.” Fed. R. Civ. P. 54 advisory committee’s notes.

We are also guided in our deliberation by the Puyallup Tribal Civil Procedures Code, which by its own terms “shall be liberally construed to provide a just and equitable result for the parties to civil actions and members of the Puyallup Reservation community generally, and to secure the just, speedy, and inexpensive determination of every civil action.” PTC § 4.08.030. In the present case, a finding that the May Order of the Puyallup Tribal Court was a final order for the purposes of applying PTC § 4.16.320 would run counter to both the stated purposes of the Puyallup Tribal Codes and the concerns underlying the widely-held rule barring interlocutory appeals. As suggested by the court in Hillstrom, judicial economy is best served by a rule allowing “one appeal after all the trial court proceedings are at an end,” 9 NICS App. 94. Another advantage of such a rule is that it provides clarity to the parties with regard to the proper time for filing an appeal; and this Court is wary of establishing precedent that would encourage parties to file interlocutory appeals rather than risk losing their right to appeal altogether

The Tribe, for its part, cites In re Custody of Watchman, No. 242 (Fort Peck, 12/19/1996), in which the Fort Peck Court of Appeals held that “when an order or judgment

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leaves no issue for future consideration except the fact of compliance or noncompliance with its terms, then that order or judgment is final for the purposes of appeal.”3 Applying this test, the court went on to find that two “portions” of an order entered by the Fort Peck Tribal Court were final and therefore appealable, while three other “portions” of that order were interlocutory and therefore not ripe for appeal. Id. at 4. It is just this sort of piecemeal determination of the issues, however, which the general rule against interlocutory appeals is intended to prevent. Thus, we decline to follow the approach of the Watchman court, and instead hold that, in the absence of compelling reasons for finding otherwise, an order which does not dispose of all of the claims set forth in a single action before the trial court is not a final order for the purposes of applying PTC § 4.16.320.

We do not attempt to set forth at this time what might constitute “compelling reasons” for a contrary determination; we only find that no such reasons exist in the present case, which is distinguishable, for instance, from the other tribal case cited by the Appellee. In Hwal’Bay Ba:J Enterprises, Inc. v. Beattie, No. 2008-AP-007 (Hualapai 04/02/2009), the Hualapai Court of Appeals found that an order denying a motion to dismiss on the basis of sovereign immunity “was ‘final’ on the sovereign immunity issue.” While the court reasoned that the trial court’s order “was not based on a need for further factual development or other proceedings,” and that the trial court “simply denied the motion to dismiss precluding any further action on the sovereign immunity issue by the Tribal Court,” id. at 2, it also relied explicitly on a line of federal court decisions “acknowledg[ing] that an appeal of a decision denying a motion to dismiss based on sovereign immunity is immediately appealable,” id. at 3 (citations omitted).

Those decisions, however, do not characterize such orders as “final orders,” but as “appealable interlocutory orders.” See, e.g., Adler v. Federal Republic of Nigeria, 107 F.3d 720 (9th Cir. 1997); Compania Mexicana de Aviacion, S.A. v. United States Dist. Court, 859 F.2d 1354, 1358 (9th Cir.1988) (per curiam). In Compania Mexicana de Aviacion, for instance, the court notes:

Notwithstanding the absence of a final judgment . . . a small class of interlocutory orders is immediately appealable. This class embraces orders that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment.

859 F.2d at 1358 (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)). An order denying a motion to dismiss on the basis of sovereign immunity comes within this class because, as the Hualapai Court of Appeals explains, “[requiring] a sovereign to defend a case through trial, without allowing it to immediately appeal, would destroy [the] sovereign right to be free from the crippling interference of litigation.” Hwal’Bay Ba:J Enterprises at 3 (internal

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quotations and citations omitted). An order denying a motion to dismiss on the basis of sovereign immunity is “effectively unreviewable on appeal from a final judgment,” because “the damage to the sovereign can never be undone.” Id.

While the court in Hwal’Bay Ba:J Enterprises seems to go further than the federal courts, characterizing an order denying a motion to dismiss on the basis of sovereign immunity as a “final order” rather than an “appealable interlocutory order,” we need not address the distinction, because the May 6, 2013 order of the trial court in this case granted the motion to dismiss. Thus, the May Order is not “unreviewable on appeal from a final judgment,” and does not come within the class of cases described in Compania Mexicana de Aviacion, supra. We therefore hold that the May Order was not a final order for the purposes of applying PTC § 4.16.320.

B. The August Order is not a “final order” for the purposes of applying PTC § 4.16.320.

The parties appear to agree that the August Order of the trial court was a final order. Plaintiff’s Statement Regarding Jurisdiction at 2; Response of Defendant Puyallup Tribe Regarding Jurisdiction at 1. The parties also agree, however, that Rivera has a pending appeal to the trial court under Step 4 of the grievance process set forth in the Tribe’s Personnel Policies and Procedures Manual. Plaintiff’s Statement Regarding Jurisdiction at 2 n.1; Response of Defendant Puyallup Tribe Regarding Jurisdiction at 3. Having considered the matter, we now hold that a dismissal without prejudice which leaves open the possibility of further litigation on the merits of a claim before the trial court is not a “final order” for the purposes of applying PTC § 4.16.320. Thus, because Rivera may still have her appeal from the grievance process heard before the Tribal Court, we are compelled to find that the August Order was not a final order, and this Court lacks jurisdiction over the matters raised by Rivera on appeal.

This holding is not only consistent with the position taken by federal courts that “a dismissal without prejudice is usually not a final decision,” Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001), but serves the interest of judicial economy by allowing “one appeal after all the trial court proceedings are at an end,” Hillstrom, 9 NICS App. 94. We also note that, together with our holding regarding the May Order, it preserves Rivera’s right to appeal the trial court’s rulings on all of her claims, but only after the trial court has finally disposed of all of those claims and no further proceedings are possible before the trial court. Without this interpretation, Rivera would face a “catch-22” whereby she would have to choose to either immediately appeal her issues related to dismissal on sovereign immunity grounds and risk missing deadlines to exhaust the administrative remedies the Tribal Court found available to her, or go through the administrative remedies and risk failing to appeal the dismissal of her other claims. By finding that the rulings by the Tribal Court do not constitute final orders, all appeal issues and administrative remedies are available to Rivera, meeting both the philosophy of the disfavor toward interlocutory appeals and the liberal construction mandated by PTC § 4.08.030.

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IV. Conclusion

Based on the foregoing, this matter is remanded back to allow exhaustion of the administrative remedy as ordered by the Tribal Court. If after completion of administrative remedies, and review is requested under “step four” of the Puyallup Personnel Policies and Procedures Manual, all orders of the Tribal Court related to the Complaint underlying this appeal will be final, as will the Tribal Court’s “step four” review of the administrative remedy.

If after exhaustion of administrative remedies, no “step four” Tribal Court review is needed due to administrative ruling in Rivera’s favor, the orders of the Tribal Court related to the original Complaint in this matter will become final and ripe for appellate review.

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.

Judge Doucet signed the August Order on August 16, 2013, and the clerk stamped it as “filed” on that date. However, it appears that the clerk was not able to serve the August Order until August 20, 2013, and again stamped the Order as “filed” on that date. The parties have consistently referred to this order as the August 20 Order. The exact date of the August Order is immaterial for purposes of this appeal.

The May Order mistakenly dated this Resolution as being passed on December 9, 2012. The citation in the May Order is to the Plaintiff’s Second Amended Complaint at § 3.11 which dates these resolutions as being passed on December 9, 2010.

“On the other hand, if the order or judgment leaves anything further in the nature of judicial action on the part of the Court, which action is essential to the determination of the rights of the parties, then that order or judgment is interlocutory.” Id. at 4.