CUMMINGS v. K’IMA:W MEDICAL CENTER

12 NICS App. 79, CUMMINGS v. K’IMA:W MEDICAL CENTER (October 2014)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY TRIBE

HOOPA, CALIFORNIA

Dawn Cummings, Plaintiff/Appellant,

K’ima:w Medical Center, An Entity of the Hoopa Valley Tribe, Defendant/Appellee.

NO. A-14-004 (October 7, 2014)

SYLLABUS^*

Employee of tribal entity filed suit challenging termination from employment. Employee’s complaint named the entity, but did not separately name the tribe. Employee served the complaint on the entity and the tribe. Trial court dismissed the complaint based on employee’s failure to comply with code requirement that tribe be named as a defendant. Court of Appeals rules that employee substantially complied with code, and substantial requirement is all that is required. Trial Court order reversed.

Concurring, Judge Fletcher writes separately to address an additional jurisdictional issue not raised by the parties on appeal.

OPINION

Before:	Lisa E. Brodoff, Chief Judge; Matthew L.M. Fletcher, Judge; Eric Nielsen, Judge.
Appearances:	Anthony Daher, for Appellant; Rebecca McMahon, Office of Tribal Attorney, for Appellee.

OPINION

Nielsen, J.:

Introduction

The K’ima:w Medical Center terminated Dawn Cummings’ employment. Ms. Cummings exhausted her administrative remedies and then timely filed a suit in the Hoopa Valley Tribal Court alleging, among other things, wrongful termination. Under Title 30 of the

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tribal code, the Tribe waives its sovereign immunity from suits brought by tribal employees alleging wrongful termination.¹

In the caption of her complaint, Ms. Cummings named the “K’ima:w Medical Center an Entity of the Hoopa Valley Tribe” as the defendant. The Tribe moved to dismiss the suit, in part, on the grounds that Ms. Cummings did not comply with 2 HVTC § 2.3.01(b), which requires that employees name the Tribe as the defendant. The trial court granted the Tribe’s motion and dismissed the complaint for failure to properly name the Tribe as the defendant under 2 HVTC § 2.3.01(b).²

We disagree with the trial court. We hold that Ms. Cummings substantially complied with the requirements of the code, and that substantial compliance is all that is required. The purpose of requiring that the Tribe be named in employee lawsuits is to make sure that the Tribe has notice of the proceedings and can respond. That goal was accomplished by the filing here. We therefore reverse the lower court’s order and reinstate Ms. Cummings’ suit.

Facts and Procedural History

In her complaint, Ms. Cummings alleges she was employed by the K’ima:w Medical Center. The K’ima:w Medical Center terminated her employment and she unsuccessfully grieved her termination in accordance with its personnel policies. After exhausting those remedies she timely filed a suit in the Hoopa Valley Tribal Court under 1 HVTC § 1.1.04(f).

The caption of Ms. Cummings’ complaint names the defendant as the “K’ima:w Medical Center an Entity of the Hoopa Valley Tribe.” Both the Hoopa Valley Tribal Council’s office and the Hoopa Valley Tribal Attorney’s Office were properly and timely served a copy of the complaint.

The Tribe moved to dismiss the complaint on the grounds that the limited waiver of the Tribe’s sovereign immunity for allegations of wrongful termination does not extend to the K’ima:w Medical Center. The Tribe also argued that because the complaint named the defendant as the “K’ima:w Medical Center An Entity of the Hoopa Valley Tribe,” Ms. Cummings failed to comply with 2 HVTC § 2.3.01(b). The Tribe argued that the failure to more explicitly name the Tribe in the caption of the complaint divested the trial court of jurisdiction

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over the suit and mandated dismissal of the complaint. The trial court agreed and granted the motion. The court did not address the waiver of immunity issue.

Ms. Cummings appeals that order. The Tribe did not cross appeal on the waiver of immunity issue.

Discussion

The only issues decided by the trial court and the only issues on appeal are whether Ms. Cummings’ failed to comply with 2 H.V.T.C § 2.3.01(b), and if so, whether that failure deprived the trial court of subject matter jurisdiction. These are strictly legal issues requiring interpretation of the relevant code provisions. We review legal issues de novo. Ferris v. Hoopa Valley Tribe, 3 NICS App. 1, 3 (Hoopa Valley Tribal Court of Appeals 2007).

The Hoopa Valley Tribe is immune from suit unless it consents or waives its immunity. Hostler v. Hoopa Valley Tribe, 10 NICS App. 14, 16 (Hoopa Valley Tribal Court of Appeals 2011). “A waiver of sovereign immunity cannot be implied but must be unequivocally expressed …. It is a canon of sovereign immunity that where the issue is the scope or extent of a waiver of sovereign immunity any ambiguities in the statutory text must be strictly construed in favor of the sovereign.” Id. at 16.

The Tribe has unambiguously waived its immunity from suit where the claim is wrongful termination from employment with the Tribe. 1 HVTC § 1.1.04(f).³ When a suit is brought under 1.1.04(f), the plaintiff is required to “name the Hoopa Valley Tribe as the defendant.” 2

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HVTC § 2.3.01(b). We hold that naming the K’ima:w Medical Center “an entity of the Hoopa Valley Tribe” as the defendant meets this requirement.

We find that the purpose of naming the Tribe as a defendant is to put the Tribe on notice that the employee is alleging wrongful termination from employment. The Tribe admits the K’ima:w Medical Center is a legal entity of the Tribe and an “arm of the tribal government.” Brief of Appellee, at 10. Correctly identifying the defendant as the “K’ima:w Medical Center an Entity of the Hoopa Valley Tribe” put the Tribe on notice that Ms. Cummings claimed she was wrongfully terminated from employment with its legal entity the K’ima:w Medical Center, a branch (arm) of its tribal government.⁴ Ms. Cummings also complied with all the code’s other notice requirements by timely serving a copy of the complaint and summons on the Tribal Council and the Tribe’s attorney.

This Court’s primary duty in interpreting any provision of the Hoopa Valley Tribal Code is to discern and implement the intent of the Tribal Council that enacted the code provision. Hostler v. Hoopa Valley Tribe, 10 NICS App. 14, 18 (Hoopa Valley Tribal Ct. App. 2011), citing Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 6 (Hoopa Valley Tribal Ct. App. 2007). Under the plain language in 2 HVTC § 2.3.13(b) the failure to timely file a 1.1.04(f) complaint divests the trial court of subject matter jurisdiction. 1 HVTC 1.1.04(f). If the Tribal Council intended that failure to name the Hoopa Valley Tribe as the defendant under 2 H.V.T.C § 2.3.01(b), as opposed to naming the K’ima:w Medical Center and correctly identifying it as an entity of the Tribe, divests the trial court of subject matter jurisdiction, the Tribal Council would have used similar language. It knew how to do that but it did not. That further supports our finding the purpose of 2 HVTC § 2.3.01(b) is to provide notice to the Tribe of the suit.

Ms. Cummings substantially complied with 2 HVTC § 2.3.01(b) because naming the defendant as the “K’ima:w Medical Center An Entity of the Hoopa Valley Tribe” satisfies the provision’s essential objective of putting the Tribe on notice. See, Costa v. Superior Court, 34 Cal.4th 986, 1017 n. 24 (2006) (citations omitted) (“Substantial compliance ... means actual compliance in respect to the substance essential to every reasonable objective of the statute.”). The Tribe does not argue it was prejudiced because the defendant named in the complaint is the K’ima:w Medical Center as an entity of the Hoopa Valley Tribe. Without a showing of prejudice, Ms. Cummings’ substantial compliance with 2 HVTC § 2.3.01(b) is sufficient.

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Judge Fletcher’s Concurrence

Judge Fletcher, in his concurrence, issues an advisory opinion on whether the Tribe has waived K’ima:w Medical Center’s immunity from suits alleging wrongful termination. Judge Fletcher does so because he believes “that a narrow holding solely on the grounds addressed by the trial court is an incomplete picture.” There is no code provision or Hoopa Valley case law authorizing this Court to issue advisory opinions. Furthermore, that issue was not decided by the trial court nor addressed in the order Ms. Cummings appeals from, and was not briefed by the parties. In the absence of any authority or request for appellate review of that issue, we believe it is inappropriate to issue advisory opinions and decline to follow Judge Fletcher’s lead to do so in this case. We caution the trial court and the parties not to interpret our refusal to address the substance of Judge Fletcher’s advisory opinion as a sign that we agree with his analysis.

Order

We reverse the trial court’s order dismissing the case and remand for proceedings consistent with this opinion.

Fletcher, J., concurring in the judgment only:

While I agree with the court’s analysis above, I write separately because I believe it is incomplete without going further. I would resolve the jurisdiction question on grounds originally argued by the tribe below but not reached by the trial court; namely, that the limited waiver of tribal sovereign immunity here applies only to employees covered by Title 30, and therefore excludes employees of the K’ima:w Medical Center (KMC) like Ms. Cummings. Because the majority opinion does not foreclose the tribe’s ability to raise this defense on remand, I concur in the judgment.

Initially, I will address why I would reach issues not adequately briefed by the parties on appeal, or reached by the trial court. Below, the court held that Ms. Cummings failed to comply with 2 HVTC § 2.3.01(b), which requires her to name the tribe as the defendant. On appeal, the parties largely, but not exclusively, focused on that issue. It is well settled that “[l]ack of subject matter jurisdiction may be asserted at any time by the parties or by the court sua sponte.” Fox v. Brown, 6 Am. Tribal Law 446, 447 (Mohegan Trial Court 2005). See also Westbrook v. Mashantucket Pequot Gaming Enterprise, 2010 WL 3021887 (Mashantucket Pequot Tribal Court, July 20, 2010) (addressing a question of subject matter jurisdiction on appeal); Simpson v. Barber, 2004 WL 5748396 (Nevada Intertribal Court of Appeals, Nov. 15, 2004) (same). I am of the view that a narrow holding solely on the grounds addressed by the trial court is an incomplete picture. My reading of the law would require an additional inquiry into whether an employee of a tribal entity is covered by Title 30 at all. Naming the tribe as the defendant is irrelevant if KMC employees may not invoke § 1.1.04(f).

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The tribe argued below, and again at oral argument, that the limited waiver of immunity does not inure to the benefit of KMC employees.¹ The trial court below chose not to address this argument. Instead, the trial court impliedly held that Ms. Cummings was an employee who was entitled to sue the tribe under 1 HVTC § 1.1.04(f), but that she failed to comply with 2 HVTC § 2.3.13(b)’s requirement that the tribe must be named as the defendant. I agree with the majority that the trial court’s analysis was in error.

Preliminarily, I agree with the tribe’s claim below that no employee of the K’ima:w Medical Center may bring suit in tribal court to challenge an adverse employment decision. Ms. Cummings’ employment with KMC was not governed by Title 30. Her employment was governed by a separate personnel manual specific to KMC and approved by the tribal council. That personnel manual allows KMC employees to grieve adverse employment decisions but establishes that the grievance process ends with a decision of the KMC governing board, a decision that is final and not subject to further review. In short, the KMC personnel manual does not allow KMC employees to enjoy the limited waiver of immunity applicable to employees covered by Title 30.

The tribe’s reasoning begins with the limited waiver of immunity in § 1.1.04(f), which provides in relevant part:

The claim is that only employees “subject to Title 30” may invoke the limited waiver. The question, then, is whether KMC employees are covered by Title 30.

It is apparent from the record that KMC proposed, and the tribal council concurred with, a separate personnel manual that removes KMC employees from the Title 30 rubric. A Hoopa tribal entity such as the K’ima:w Medical Center may, with council concurrence, adopt and implement a personnel manual outside of the confines of Title 30. Section 1.4 of Title 30 establishes a process of sorts by which the tribal council may allow a tribal entity to adopt, with council concurrence, its own personnel policies and procedures. That provision of Title 30 states:

This manual shall apply to all entities of the Tribe. Tribal chartered entities may develop personnel manuals that are not in conflict with this manual provided that

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there is concurrence by the Tribal Council. Entities shall, no later than 30 days following passage of this policy, submit to the Council their present personnel policies and procedures accompanied by proposed deletions and amendments in conformance with this paragraph; subsequent entity personnel policies and procedures shall, proceeding implementation, by submitted to the Council for their concurrence.

Title 42 also states that the tribe’s personnel policies and procedures applies to all tribal entity employees “[e]xcept to the extent provided in the governing charter, bylaws or other governing document.” 42 HVTC § 42.8.2. I find that the KMC personnel manual constitutes a “governing document” under this provision.

I would hold, based on the record before me, that the KMC manual effectively displaces the Title 30 personnel policies and procedures. The tribe’s motion to dismiss below included materials amounting to an offer of proof that the tribal council has concurred with the KMC personnel manual.² If that is the case, and I will assume for the sake of argument that it is, then I agree with the tribe that Ms. Cummings and other KMC employees are no longer governed by the tribe’s default personnel policies and procedures. It appears KMC has opted out of the tribe’s personnel policies and procedures. In short, Ms. Cummings is not a Title 30 employee with an entitlement to the tribe’s § 1.1.04(f) waiver of immunity for Title 30 employees.

Moreover, the KMC personnel manual covers virtually all aspects of employment of with the KMC. As the tribe argued below, “All employment with K’ima:w Medical Center is governed by the K’ima:w Medical Center Policies, not Title 30.” Section 1.4 of Title 30 expressly allows for entities like KMC to submit “subsequent entity personnel policies and procedures … to the Council for their concurrence.” My cursory review of the KMC personnel manual, which is at least as comprehensive and detailed as Title 30 itself, strongly supports the tribe’s assertion.

That KMC employees are not governed by Title 30 is also consistent with the plain language of § 1.1.04(f), which states that for an employee to enjoy the limited waiver of immunity she “must be subject to Title 30 of the Hoopa Valley Tribal Code ….” If all tribal employees were covered by Title 30, then this provision is surplusage. “Statutes and ordinances

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normally should be read to give effect to every word and phrase ….” Olson v. Nooksack Indian Housing Authority, 6 NICS App. 49, 53 (Nooksack Tribal Ct. App. 2001) (citation omitted).

The exclusion of KMC employees from Title 30 is also consistent with the tribe’s entity statute. The Hoopa tribal code expressly states that a critical aspect of tribal entities is separation of entity assets from tribal government assets. 52 HVTC § 52.107. See also 52 HVTC § 52.102(a) (declaring that a purpose of the entity statute’s enactment is to “protect the credit of the Tribe.”). It is not so unusual for tribes to allow for tribal government employees to sue in tribal court for wrongful discharge, but to simultaneously bar tribal entity employees the same right. For example, the Grand Traverse Band of Ottawa and Chippewa Indians has waived its immunity in tribal court for tribal government employees to sue for wrongful discharge, but employees of the Grand Traverse Band’s Section 17 corporation may not. See Shananaquet v. Grand Traverse Band of Ottawa and Chippewa Indians Economic Development Corporation, 8 Am. Tribal Law 160 (Grand Traverse Band of Ottawa and Chippewa Indians Tribal Appellate Court 2009) (per curiam). The reason for this legal structure is to protect limited tribal assets from high-stakes tribal business and government operations – such as gaming or perhaps medical services – that could implicate the financial stability of the entire tribal government. The tribal council could have been persuaded to limit KMC and tribal government exposure to tort claims for this reason.

To be sure, some provisions of tribal law are consistent with the view that KMC employees are eligible to sue under § 1.1.04(f). Section 12.3(C)(5) of the KMC personnel manual provides that an employee grieving an employment decision must ultimately appeal to KMC’s governing board, and the board’s decision is “final.” The tribe appears to argue that the finality of the governing board’s decision making is the end of the road for KMC employees, effectively reinstating tribal immunity and preventing tribal court suits. However, in Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 6-7 (Hoopa Valley Tribal Ct. App. 2007), we interpreted parallel language contained in Title 30 as merely constituting the moment at which administrative remedies are exhausted, allowing a tribal employee covered by Title 30 to invoke the waiver of immunity found at 1 HVTC § 1.1.04(f). Section 12.3(C)(5) could have the same legal import as the provision in the Ferris matter. Still, Ferris is distinguishable. Title 30 includes a provision specifically linking Title 30 to the § 1.1.04(f) waiver. See 30 HVTC § 15.1. There is no analogous provision in the KMC personnel manual. The only way for a KMC employee to invoke § 1.1.04(f) is if the employee is covered by Title 30. As I explained above, it is far more likely than not that KMC employees are excluded from Title 30’s protections.

It is possible that § 1.4 of Title 30 could be read to prohibit tribal entities from being excused from Title 30’s waiver. Section 1.4 initially provides that Title 30 applies to all entity employees, and in two places effectively provides that entity personnel manuals may not conflict with Title 30. See 30 HVTC § 1.4 (“Tribal chartered entities may develop personnel manuals that are not in conflict with this manual provided that there is concurrence by the Tribal Council. Entities shall, no later than 30 days following passage of this policy, submit to the Council their present personnel policies and procedures accompanied by proposed deletions and amendments in conformance with this paragraph ….”) (emphasis added). But then it allows for entities to

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seek concurrence from the council for “deletions and amendments,” and apparently to submit subsequent personnel policies and procedures. Id. (“Entities shall, no later than 30 days following passage of this policy, submit to the Council their present personnel policies and procedures accompanied by proposed deletions and amendments in conformance with this paragraph; subsequent entity personnel policies and procedures shall, preceding implementation, be submitted to the Council for their concurrence.”) (emphasis added). Section 1.4 is a perplexing provision to which one could discern multiple meanings. The phrases “not in conflict with this manual” and “conformance with this paragraph” are strong statements possibly suggesting that the limited waiver of tribal immunity will survive any contrary entity manual language to the contrary. But the language is tempered by the authority of an entity to propose “subsequent entity personnel policies and procedures,” to be implemented upon the concurrence of the council.

That seems to be what has happened here. The tribe represented below that the council has concurred in the displacement of Title 30 with the KMC personnel manual. The record strongly supports the tribe’s views, what with the KMC personnel manual extensively governing virtually every detail of KMC employment. To this point, no one disputes that the council concurred in the KMC manual; nor has anyone disputed the tribe’s assertion that the KMC manual controls over Title 30. I would hold that § 1.4 is ambiguous, and cannot be a basis for the application of the § 1.1.04(f) waiver to KMC employees. Ambiguities in provisions relating to waivers of tribal immunity must be construed to the benefit of the tribe.

The counterfactual supports the logic of this reasoning. Assuming that the KMC personnel manual has displaced Title 30, then for this suit to proceed, the court could be forced to hold that the only provision of Title 30 that applies to Ms. Cummings and other KMC employees is the limited waiver of immunity contained in 30 HVTC § 15.1 that leads us to § 1.1.04(f). Is that a plausible reading of the authorities before us? Yes, but it is also a plausible, and frankly more likely, reading that KMC employees simply are no longer governed by Title 30 at all. Again, ambiguities as to waivers of tribal immunity must be construed to the benefit of the tribe.

While I am of the view that there is no waiver of tribal immunity for KMC employees, I would allow for the plaintiffs to attempt to persuade the trial court on remand that the KMC personnel manual does not completely preempt or displace Title 30. The lower court did not rule on that question below. The parties have not had the chance to argue the question comprehensively whether KMC employees are covered in part or in while by Title 30. On remand, hopefully the parties can more fully flesh out the legislative histories of the KMC personnel manual and other relevant statutes.

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.

Notes to the majority opinion:

“All non-introductory, full-time regular employees and managers may file non-frivolous complaints related to their termination from employment with the Hoopa Valley Tribe in accordance with 1 Hoopa Valley Tribal Code §1.1.04(f). Complaints must be filed with the Hoopa Valley Tribal Court within thirty (30) days of the date of termination. * * * The complaint shall be subject to the statute of limitations described in 2 Hoopa Valley Tribal Code §2.3.13(b).” 30 HVTC § 15.1

That provision reads “A civil employment action brought pursuant to 1 Hoopa Valley Tribal Code § 1.1.04(f) shall name the Hoopa Valley Tribe as the defendant.”

That provision states:

The Hoopa Valley Tribe hereby makes a limited waiver of sovereign immunity for actions brought in the Hoopa Valley Tribal Court solely based on the employee’s wrongful termination from employment. The Employee must be subject to Title 30 of the Hoopa Valley Tribal Code, otherwise known as the Tribe’s Personnel Policies and Procedures. * * * If the Hoopa Valley Tribal Court determines an employee has been wrongfully terminated, the Hoopa Valley Tribal Court shall have the power and jurisdiction to award money damages against the Tribe for actual unpaid wages and benefits not to exceed an amount equal to one (1) years wages of the employee. The wages shall be calculated at the amount the employee was actually receiving on the date of termination. Any wages or money earned by employment or self-employment shall be used to offset any damage award. The Hoopa Valley Tribe shall only pay judgments after final appeals have been exhausted or the Tribe chooses not to appeal an adverse decision. The Hoopa Valley Tribe does not waive it sovereign immunity with respect to any other forms of damages or costs or attorney fees. This limited waiver of sovereign immunity extends only to the relief stated in this waiver, and does not include any waiver of sovereign immunity whatsoever for relief not stated in this waiver. This limited waiver of sovereign immunity shall only apply to the employee terminated and shall have no application to any third party claims. This limited waiver of sovereign immunity shall only apply to timely filed complaints in accordance with 2 H.V.T.C § 2.3.13(b). If a complaint is not filed according to 2 H.V.T.C § 2.3.13(b), this Court shall have no jurisdiction over the suit and it shall be dismissed.

Under 1 HVTC 1.1.04(f) the Tribe’s limited waiver of immunity for suits alleging wrongful termination only applies if the employee is subject to Title 30. We do not address whether an employee of the K’ima:w Medical Center is subject to Title 30. We do note, however, that the stated purpose of Title 30 is to provide “uniform and consistent practices to be followed in administering personnel related activities while carrying on the functions and operations of the Hoopa Valley Tribal Government.” 30 HVTC § 1.1.2. We also note that Title 30 “… shall apply to all entities of the Tribe” and “Tribal chartered entities may develop personnel manuals that are not in conflict with this manual provided there is concurrence by the Tribal Council.” 30 HVTC § 1.1.4.

Notes to the concurring opinion:

The tribe also argued below that the tribe is an indispensable party to Ms. Cummings’ claims. That argument is unnecessary in light of the immunity of KMC and the inapplicability of the limited waiver of immunity provided for employees covered by Title 30. There is no need to address the claim in light of the alternative claim that Ms. Cummings may not invoke the tribe’s limited waiver of immunity in the first instance.

In the points and authorities supporting the tribe’s motion to dismiss below, the tribe argued:

On September 5, 2012, in accordance with tribal law, KMC routed through Legislative Procedures Act (LPA) public comment and review its own personnel policies and procedures, which are consistent with but wholly separate from the Tribe's Personnel Policies and Procedures outlined in Title 30. LPA Routing Sheet (Attached as Exhibit B). The Tribal Council formally approved the K’ima:w Medical Center Personnel Policies and Procedures on October 11, 2012. See Council Action Sheet approving KMC Personnel Policies, (Attached as Exhibit C). Such approval was made in accordance with the Tribe’s Legislative Procedures Act. See 6 H.V.T.C. § 6.1 – 6.9. All employment with K’ima:w Medical Center is governed by the K’ima:w Medical Center Policies, not Title 30. (Emphasis added.)