VIGIL v. HOOPA VALLEY TRIBE

14 NICS App. 62, VIGIL v. HOOPA VALLEY TRIBE (September 2016)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY TRIBE

HOOPA, CALIFORNIA

Rodney Vigil, Plaintiff/Appellant,

Hoopa Valley Tribe, Defendant/Appellee.

NO. A-16-002 (September 13, 2016)

SYLLABUS^*

Appellant filed suit against tribe, alleged wrongful termination from the tribe’s housing authority. Appellant did not name tribe’s housing authority as party and record does not show hearing was held to determine whether tribe’s housing authority a necessary party. Tribe’s housing authority claimed that they are protected by tribe’s sovereign immunity. Court of Appeals dismissed appeal and remanded to trial court for a definite ruling on whether the tribe’s housing authority is a necessary party before trial court can then address the sovereign immunity issue raised by the tribe’s housing authority.

Before:	Matthew L.M. Fletcher, Chief Judge; Michelle Demmert, Judge; Eric Nielsen, Judge.
Appearances:	J Bryce Kenny, for Appellant; David B. Dehnert, for Appellee.

OPINION

Nielsen, J.:

The Hoopa Valley Housing Authority (HHA), an entity of the Hoopa Valley Tribe, terminated Rodney Vigil employment. Mr. Vigil filed a wrongful termination suit in the Hoopa Valley Tribal Court against the Tribe under Title 30. A complaint filed under Title 30 must comply with 1 Hoopa Valley Tribal Code (HVTC) § 1.1.04(f).¹ Under that provision the Tribe

14 NICS App. 62, VIGIL v. HOOPA VALLEY TRIBE (September 2016) p. 63

has “unambiguously waived its immunity from suit where the claim is wrongful termination from employment with the Tribe.” Cummings v. K’ima:w Medical Center, 12 NICS App. 79, 81 (2014).

Although Mr. Vigil alleged he was wrongfully terminated from his employment with the HHA, he did not name the HHA as a defendant. The Tribe filed a Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted on the grounds that Mr. Vigil was terminated from his employment with the HHA and not the Tribe, therefore the Tribe was not the proper party. That motion was denied on October 13, 2015.

At the March 10, 2016 pretrial conference, the Tribe represented that the HHA was independent from the Tribe and the HHA was in possession of discoverable material. It argued the HHA was a necessary party that required it be joined under HTVC 2.2.04(a). The HHA was not represented at the pretrial conference. On March 11, 2016 the court issued an order joining the HHA as a necessary party.

On April 13, 2016 the HHA filed a motion to dismiss it from the suit for two reasons: it did not waive its sovereign immunity from suits brought by HHA employees alleging wrongful termination; and alternatively Mr. Vigil’s complaint did not assert a cause of action against the HHA. The Tribe joined the HHA’s motion. On July 15, 2016 the court denied the motion but recognized the HHA did not have the opportunity to weigh in on whether it was a necessary party when the March 11, 2016 order was entered. The court ordered a hearing to be held on August 23, 2016 to determine whether the HHA was in fact a necessary party.

On July 29, 2016 the HHA appealed the July 15th order denying its motion to dismiss. On August 31, 2016, Mr. Vigil filed a motion to dismiss the appeal on the grounds the July 15th order was not a final judgment or judgment on a dispositive motion as required under HTVC 2.6.01.²

The record before us does not show that the August 23rd hearing was held.

In Cummings the majority did not address the issue of whether a person terminated from employment with an entity of the Tribe could bring an action for wrongful termination under Title 30 and HVTC § 1.1.04(f), if the entity adopted its own personnel policies approved by the Tribal Council. Judge Fletcher in his concurring opinion, however, did address the issue. He found the tribal codes ambiguous and succinctly stated the issues:

…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

14 NICS App. 62, VIGIL v. HOOPA VALLEY TRIBE (September 2016) p. 64

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.

Cummings, 12 NICS App. at 87 (J. Fletcher, concurrence).

The July 15th order appealed from clearly left open the issue of whether the HHA is a necessary party and must be joined for this litigation to proceed. If at this stage of the litigation the HHA is not a necessary party the waiver of immunity issue is moot. The July 15th order contemplated that these issues were to be decided at the August 23rd hearing.

The legal questions of whether HHA is protected by the Tribe’s sovereign immunity and if so whether Title 30 and § 1.1.04(f) operates as a limited waiver of that immunity are only ripe if the HHA is necessary party and the case cannot proceed without it being joined. The answer to those questions in turn depend on whether the HHA is a chartered entity of the Tribe, has adopted its own personnel policies approved by the Tribal Council in conformance with Title 30, and there is no waiver of immunity for wrongful termination suits in those policies. These are factual issues for the trial court to make. In other words, if the HHA is a necessary party that must be joined for the case to proceed, and 1) is protected by the Tribe’s sovereign immunity; 2) is a chartered entity of the Tribe; 3) has adopted its own personnel policies approved by the Tribal Council; and 4) those policies do not waive its immunity from wrongful termination suits, only then can the legal question of whether Title 30 and § 1.1.04(f) operates to waive HHA’s sovereign immunity in favor of Mr. Vigil’s suit be addressed.

The record before us does not show that the court has issued a definitive ruling on the threshold issue of whether the HHA is necessary party that must be joined for the case to proceed. Because there is no definitive ruling we find the HHA’s appeal of July 15th ruling denying its motion to dismiss is not ripe for appellate review. For this reason we dismiss the HHA’s appeal and remand to the trial court for a hearing to determine whether the HHA is a necessary party and must be joined for this litigation to proceed. If the court rules in the affirmative, then HHA can raise the sovereign immunity issue and the trial court should hold a fact finding hearing to address the four factors identified above. See Risling v. Hoopa Valley Tribe, 12 NICS App. 66, 68 (2014) (dismissing appeal as premature and recognizing, “The Tribe is not foreclosed from filing a motion to dismiss on sovereign immunity grounds if it provides a sufficient factual basis to support the motion.”). This Court will only review any trial court rulings and orders if the criteria in HTVC 2.6.01 are met.

Order

We dismiss the appeal and remand for proceedings consistent with this 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.

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. 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

Mr. Vigil also requests attorney fees be imposed against HHA’s counsel on the theory the HHA’s appeal is frivolous. We do not decide if we have the authority to sanction counsel for filing a frivolous appeal because the July 15th Order appealed from rejects the HHA’s sovereign immunity defense and denies its motion to dismiss, albeit prematurely, so we do not find the appeal frivolous. See Risling v. Hoopa Valley Tribe, 12 NICS App. 66, 67 (2014) (denial of motion to dismiss where sovereign immunity is pled is appealable under HTVC 2.6.01). The request for attorney fees is denied.