[00:00:11] Speaker 02:
Whenever you're ready, Council.

[00:00:16] Speaker 02:
I think we have 20 on this one.

[00:00:27] Speaker 03:
May it please the Court.

[00:00:28] Speaker 03:
Once again, my name is Luke Busby and I represent Appellant Michael Irwin.

[00:00:32] Speaker 03:
I'd like to reserve five minutes for rebuttal, if I may, Your Honor.

[00:00:35] Speaker 03:
Yes.

[00:00:35] Speaker 03:
Thank you.

[00:00:37] Speaker 03:
At the outset,

[00:00:38] Speaker 03:
It is important to address the foundational question that runs through every aspect of this case.

[00:00:44] Speaker 03:
Whether the defendants can avail themselves of the Washoe tribe's sovereign immunity to avoid answering for their individual conduct.

[00:00:53] Speaker 03:
The answer under controlling authority is plainly no.

[00:00:57] Speaker 03:
The Supreme Court resolved this question in Lewis v. Clark, where the court held that tribal sovereign immunity does not extend to suits against tribal employees and their individual capacities.

[00:01:07] Speaker 03:
for the judgment will not operate against the tribe.

[00:01:10] Speaker 03:
The court further held that indemnification provisions, as a matter of law, extend sovereign immunity to individual employees, do not extend sovereign immunity to individual employees who would not otherwise fall under its protective cloak.

[00:01:23] Speaker 03:
This very court applied Lewis and Akers' bonusing versus Martson and held that extending tribal sovereign immunity to individual defendants merely because they were sued for conduct within the scope of their employment would be at odds with Lewis.

[00:01:38] Speaker 03:
Mr. One's claims seek monetary damages solely from the individual defendants in their individual capacity Any judgment in this case will not operate against the tribe under Lewis and acres bonusing sovereign immunity provides no shield here Well, I mean it'll operate against the tribe in the sense that they may have taken on the obligation to pay the judgment But your view is that under Lewis v. Clark that doesn't help the tribe here

[00:02:05] Speaker 03:
That is our view, Your Honor.

[00:02:06] Speaker 03:
I think that issue was explored at length in Acres Bonusing.

[00:02:09] Speaker 03:
I actually went back and listened to the oral arguments in that case before this court, and there were very similar issues.

[00:02:15] Speaker 03:
And in that case, the court held that any case against a tribal employee will have some valence of effect on a tribe.

[00:02:24] Speaker 03:
But that's not really the question.

[00:02:25] Speaker 03:
The question, as framed by Louis V. Clark and framed very starkly, was that if the judgment does not operate against the tribe,

[00:02:34] Speaker 03:
then the tribe is not the real party in interest in the case.

[00:02:40] Speaker 03:
We believe the most significant error below was the district court's grant of the motion to dismiss on the basis they were titled to absolute immunity under Title 33 of the Washoe Tribes Law and Order Code.

[00:02:53] Speaker 03:
The district court acknowledged that the tribe used the phrasing sovereign immunity rather than absolute immunity in Title 33, but nonetheless concluded that

[00:03:01] Speaker 03:
It immunized tribal officers and employees for damages arising for any work they do for the tribe.

[00:03:08] Speaker 03:
The court applied this provision to shield defendants solely because they were tribal employees performing their official duties, identifying no other rationale for the grant of absolute immunity.

[00:03:19] Speaker 03:
This holding is nothing more than a relabeling of sovereign immunity as absolute immunity.

[00:03:25] Speaker 03:
And it cannot survive scrutiny under Lewis and Akers' bonusing.

[00:03:28] Speaker 03:
Nowhere in Title 33,

[00:03:30] Speaker 03:
the code, does the document mention or reference absolute immunity?

[00:03:33] Speaker 03:
It speaks exclusively in terms of sovereign immunity.

[00:03:36] Speaker 03:
The immunity the defendants seek to invoke stems directly from the tribe's inherent sovereign status and the very source of immunity that the Supreme Court in Lewis and in Acres Bonusing, this court in Acres Bonusing, has already rejected as a basis for shielding individual capacity defendants.

[00:03:53] Speaker 02:
Putting aside the question, which I will certainly be directing to your friend, about whether they're making the following type of immunity claim, they certainly could claim immunity under Nevada law, yes.

[00:04:09] Speaker 02:
They could assert that they're entitled to it.

[00:04:12] Speaker 02:
I'm not saying they could win, but they could assert that they're entitled to it, right?

[00:04:17] Speaker 03:
I think they could assert that they're entitled to absolute immunity insofar as the concept is well-defined in Nevada law.

[00:04:24] Speaker 02:
And we're talking about what I may be, and my apologies to the Nevada Supreme Court if I get the descriptor wrong, but the functional inquiry test?

[00:04:34] Speaker 02:
Yes, Your Honor.

[00:04:34] Speaker 02:
And this would be under the second judicial district court case from 2002 primarily?

[00:04:40] Speaker 03:
That is correct, Your Honor.

[00:04:40] Speaker 03:
And it's not dissimilar from the way that federal courts look at absolute immunity issues.

[00:04:46] Speaker 03:
And that's kind of where the conceptual confusion in this case arose.

[00:04:50] Speaker 02:
And they cite a lot of federal cases.

[00:04:52] Speaker 03:
Indeed, Your Honor.

[00:04:53] Speaker 03:
Yeah, Burke specifically, I believe, if I'm recalling correctly.

[00:04:56] Speaker 03:
Butts, maybe?

[00:04:58] Speaker 03:
Sorry.

[00:04:58] Speaker 03:
Yes, that's it.

[00:05:01] Speaker 03:
But when you do an absolute immunity analysis, there's two basic questions under either the federal or the Nevada system.

[00:05:09] Speaker 03:
Who are you suing?

[00:05:11] Speaker 03:
What's their job?

[00:05:12] Speaker 03:
Are they a judge?

[00:05:13] Speaker 03:
Are they a prosecutor?

[00:05:15] Speaker 03:
And what's the behavior that's complained about?

[00:05:18] Speaker 03:
And under an absolute immunity analysis, you cannot sue a judge or a prosecutor for judging a case or prosecuting a case.

[00:05:28] Speaker 03:
They're immune, right?

[00:05:30] Speaker 03:
But if a judge does something entirely outside of the scope of judicial function, then they can be sued, despite absolute immunity, if it has nothing to do with their judicial functions.

[00:05:42] Speaker 03:
Same with prosecutors.

[00:05:44] Speaker 03:
God forbid for discriminates unlawfully against someone in their office and employment context they can be sued for that because it's not a prosecutorial function and that same test Is described in Davis versus Lachell?

[00:05:58] Speaker 03:
You know and the concept just has that's the Navajo case Yeah, I believe it is mo.

[00:06:03] Speaker 03:
Yeah, I believe it is your honor on which we provided supplemental briefing and

[00:06:10] Speaker 00:
Would we be applying federal common law or Nevada law to this question of absolute immunity in your view?

[00:06:19] Speaker 00:
I know you're saying the outcome may not alter, but I'd like to know what you think is the applicable law.

[00:06:25] Speaker 03:
Your honor, our view on that issue, which the court granted us supplemental briefing to describe, is that it's an eerie question.

[00:06:32] Speaker 03:
Pardon the pun.

[00:06:33] Speaker 03:
That it's a substantive issue of law.

[00:06:37] Speaker 03:
So for the federal claims, you would apply federal law.

[00:06:40] Speaker 03:
And for the state law claims, you would apply state law claims on the immunity question.

[00:06:45] Speaker 03:
And we think it's clear under this court's jurisprudence that immunity questions are substantive questions of law, not procedural.

[00:06:53] Speaker 03:
Because we filed several federal claims in this case, it's a very large case, including civil rights claims, the court has primary federal jurisdiction over those claims under Nevada v. Hicks, a bunch of other cases.

[00:07:07] Speaker 03:
It has supplemental jurisdiction over the state law claims, because they're pendant, they're involving the same transaction or occurrence.

[00:07:15] Speaker 03:
So our view is that if the court is going to look at the immunity question under the Davis versus Wattell rubric, that it needs to do so differently for one defendant in this case, who's Gene Burke.

[00:07:26] Speaker 03:
He was the general counsel for the tribe.

[00:07:29] Speaker 03:
The other defendants are all tribal officers.

[00:07:31] Speaker 03:
We don't think there's any colorable argument at all for absolute immunity for them in this case.

[00:07:36] Speaker 03:
They're not prosecutors.

[00:07:37] Speaker 03:
They're not judges.

[00:07:38] Speaker 03:
They're, you know, police officers engaged in administrative functions related to employment.

[00:07:44] Speaker 03:
Now, Mr. Burke, he is general counsel for the tribe.

[00:07:48] Speaker 03:
So under the Davis case, you know, he checks the first box.

[00:07:51] Speaker 03:
Is he involved in the judicial process?

[00:07:53] Speaker 03:
Is he available to avail himself of judicial or quasi-judicial immunity, arguably?

[00:07:58] Speaker 03:
Well, that argument falls apart on the second prong, which is what was he doing?

[00:08:04] Speaker 03:
And as we've alleged in the complaint, and these are disputed issues of fact based on what I'm seeing in the briefing, we allege that Burke really had nothing to do with the grievance process.

[00:08:13] Speaker 03:
We allege that he inserted himself into this process and denied Mr. Irwin the right to grieve his case, challenging his termination.

[00:08:21] Speaker 03:
Now, how does Mr. Irwin know that Burke had nothing to do with the process?

[00:08:26] Speaker 03:
What's the basis for that allegation is that, as described in the First Amendment complaint, he'd gone through it before.

[00:08:31] Speaker 03:
And Burke essentially had nothing to do with it.

[00:08:34] Speaker 03:
So and he also we also describe in the the complaint a conversation with chairman smokey where mr. Irwin says Hey, you know I've been terminated.

[00:08:44] Speaker 03:
This is a problem smokey in our wheel edge said you know I'm not aware of it and that it was unusual for Burke to be involved at that point so on the question of quasi-judicial immunity Accepting the well-planned hopefully well-planned facts is true at this point in the proceedings.

[00:09:01] Speaker 03:
We believe dismissal would be inappropriate

[00:09:03] Speaker 03:
immunity is a threshold issue, granted.

[00:09:04] Speaker 03:
But whether there's disputed issues of fact on that issue and well-planned allegations to support a claim that these actually weren't things that Mr. Burke was involved in on a typical day-to-day basis, not part of his regular job, he kind of inserted himself in this process, we allege, improperly, that that should be a question for the jury.

[00:09:26] Speaker 00:
There could be a separate question of qualified immunity, but the district court did not reach that question.

[00:09:31] Speaker 03:
Is that right?

[00:09:32] Speaker 03:
Correct, Your Honor.

[00:09:33] Speaker 03:
A significant amount of the briefing was dedicated to distinct challenges to the claims based on 12b6, which the court can review de novo.

[00:09:46] Speaker 03:
We don't think the record is developed sufficiently to enable that to really occur fairly in this case.

[00:09:53] Speaker 03:
You want those issues to be fleshed out typically, I think, at the district court level for a district court to rule on a qualified immunity issue

[00:10:01] Speaker 03:
Claims efficiency issue before dealing with it for the first time on appeal judge dues Opinion was limited to you know the two really fundamental justic ability questions Which are you know is there sovereign or is there some kind of immunity that applies in this case?

[00:10:18] Speaker 03:
and whether the tribe is a necessary party in this case.

[00:10:22] Speaker 00:
I wanted to actually, unless there are questions about this, but why is the tribe not a necessary party?

[00:10:28] Speaker 00:
I think the defendants are alleging that this type of action would interfere with their ability to administer policing and other internal things that are intrinsic to the tribe.

[00:10:42] Speaker 03:
Your honor, I think the Acres Bonusing case is really where I went for guidance on this issue, is how the court might see it.

[00:10:48] Speaker 03:
They observed any suit against a tribal employee for conduct in the course of their official duties inevitably has some connection to tribal government.

[00:10:56] Speaker 03:
And if that were the test, the court would end up applying tribal sovereign immunity whenever a tribal employee acted within the course and scope of their employment was involved.

[00:11:05] Speaker 03:
But that's what this court said, Lewis said, not to do.

[00:11:10] Speaker 03:
And the fundamental question under Lewis and Rule 19 in our mind is, who is Mr. Irvine seeking a judgment against?

[00:11:20] Speaker 00:
But in Lewis, it was just a casino driver driving and gets into a car accident.

[00:11:26] Speaker 00:
Here, we're talking about policing within the tribe.

[00:11:29] Speaker 00:
And I take your point.

[00:11:30] Speaker 00:
I think Acres Bonasing says not just anything.

[00:11:33] Speaker 00:
But there's a little bit more meat to the potential interference with the tribe here, isn't there?

[00:11:39] Speaker 03:
Your Honor, that's alleged by the opposing party.

[00:11:42] Speaker 03:
But our position is that what the defendants did was actually go against tribal policy.

[00:11:49] Speaker 03:
And so that argument, we don't think should be seen as particularly persuasive, because Mr. Irwin alleges he was wrongfully fired.

[00:11:57] Speaker 03:
All he wanted to do was grieve his termination, which he was allowed to do under their own rules.

[00:12:02] Speaker 03:
And he wasn't allowed to do so for unexplained reasons.

[00:12:06] Speaker 00:
That being the case is it I mean I I'm sorry to interrupt is it your argument that because you're not disputing the rules themselves you're just trying to gain relief from them that that doesn't interfere with the tribal policy and and Therefore doesn't make the tribe a necessary party is that exactly and I think it the underlying kind of premise of of That argument is that mr. Wine really has no issue with the tribe.

[00:12:30] Speaker 03:
He doesn't want to sue them He doesn't think the tribe itself did anything wrong

[00:12:34] Speaker 03:
He wanted to avail himself of the tribe's process, but was prevented from doing so in a tortious way, in a way that we allege violated Mr. Irwin's constitutional rights by the defendants.

[00:12:47] Speaker 03:
And that being the case, from our view, Mr. Irwin's actually supporting the tribe, because he's trying to ensure that their rules about how police are treated when they're subject to discipline are fairly applied.

[00:13:03] Speaker 03:
Mr. Irwin is in a unique position as a plaintiff in this case, because as described in the First Amendment complaint, it's a long series of events that have led him to this place.

[00:13:14] Speaker 03:
But there's lots of facts to show that Mr. Irwin's a great cop.

[00:13:17] Speaker 03:
And he was repeatedly challenged administratively because of his willingness, essentially, to report the misconduct

[00:13:29] Speaker 03:
fellow officers when he was essentially a very young police officer.

[00:13:33] Speaker 03:
And that's dogged him repeatedly throughout his career.

[00:13:38] Speaker 03:
And we think forms the basis for the motivation for what occurred to him at the tribe.

[00:13:42] Speaker 03:
Why not just let him grieve his case?

[00:13:47] Speaker 03:
Makes no sense to us whatsoever.

[00:13:48] Speaker 03:
If he did something wrong and the Tribal Grievance Committee determines that that's the case, fine.

[00:13:55] Speaker 03:
The defendants, by foreclosing that, when he's clearly entitled to take advantage of it, we think engaged in conduct that goes beyond any tribal policy, there's nothing that we think the tribe did to direct them to do this that would justify it.

[00:14:10] Speaker 03:
And again, this is a case that's at an early stage in litigation.

[00:14:15] Speaker 03:
We haven't conducted a lot of discovery.

[00:14:18] Speaker 03:
We don't know exactly what occurred at the tribe, who was saying what to whom.

[00:14:22] Speaker 03:
So for example, the allegations

[00:14:25] Speaker 03:
the assertion that, hey, if Mr. Irwin was OK, why didn't the tribe just hire him back?

[00:14:29] Speaker 03:
I think that was in the supplemental briefing.

[00:14:32] Speaker 03:
Well, maybe we don't know.

[00:14:34] Speaker 03:
Mr. Irwin never heard back from Tribal Chairman Smoky after he brought up the issue.

[00:14:38] Speaker 03:
Hey, I've been terminated.

[00:14:40] Speaker 03:
I think it's wrong, and Burke won't let me talk to anybody.

[00:14:44] Speaker 03:
So we don't know.

[00:14:45] Speaker 03:
I think it's unfair to assume facts based on those suppositions about his current employment one way or the other.

[00:14:55] Speaker 03:
At that, I'd like to reserve the remainder of my time for rebuttal if I may, Your Honors.

[00:15:10] Speaker 01:
Yes.

[00:15:10] Speaker 01:
Good morning, Your Honors.

[00:15:12] Speaker 01:
Leonard Powell on behalf of Tribal Appellees.

[00:15:15] Speaker 01:
May it please the Court?

[00:15:17] Speaker 01:
Tribal immunity bars appellant suit.

[00:15:21] Speaker 01:
I'd like to begin by addressing absolute immunity, but I also want to address

[00:15:25] Speaker 01:
qualified immunity and rule 19 as well, because any one of these bases is sufficient to affirm the judgment below.

[00:15:32] Speaker 01:
Starting with absolute immunity, this case bears a striking resemblance to the facts in Davis.

[00:15:39] Speaker 01:
Appellant is a former tribal employee.

[00:15:42] Speaker 01:
He sues his former tribal supervisors and he seeks to hold them liable for performing tribal personnel management functions.

[00:15:51] Speaker 01:
That was the exact type of suit at issue in Davis and under Davis absolute immunity applies.

[00:15:57] Speaker 02:
So council I don't understand how you can argue that Davis stands for what you say it stands for in light of Lewis v. Clark.

[00:16:12] Speaker 02:
And it seems to me very clear that in Lewis v. Clark, the court said, for example, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities and

[00:16:36] Speaker 02:
We have never held that a civil rights suit under 1983 against a state officer in his individual capacity even implicates the 11th Amendment or the state's sovereign immunity.

[00:16:48] Speaker 02:
I mean, how doesn't Lewis sort of just bar that argument from the start?

[00:16:55] Speaker 01:
So the first thing I want to make clear, because Appellant goes straight past this point, which is although we have raised the sovereign immunity argument, we are primarily

[00:17:06] Speaker 01:
are relying on official immunity and rule 19.

[00:17:10] Speaker 01:
And we don't think you need to address the sovereign immunity argument.

[00:17:13] Speaker 01:
We think that Lewis was a sovereign immunity decision, not an official immunity decision, that it was essentially a law school 101 type decision.

[00:17:23] Speaker 01:
Courts for decades had been properly recognizing the distinction between sovereign immunity and official immunity in the context

[00:17:32] Speaker 01:
of state and federal immunity, but for whatever reason, they had gone astray in the area of tribal immunities.

[00:17:38] Speaker 01:
And Lewis corrected that while recognizing that officials may still be able to raise official immunity defenses.

[00:17:47] Speaker 01:
And then this court's decision in Acres 1 confirmed that official immunity defenses can be asserted.

[00:17:53] Speaker 01:
And in fact, it dismissed some of the claims there on absolute immunity grounds, remanded for other official immunity defenses to be considered, and ultimately, in that case,

[00:18:02] Speaker 01:
All of the claims were dismissed, most of them on official immunity grounds.

[00:18:09] Speaker 01:
Now, I know that this court's supplemental briefing order teed up the question of whether Davis is binding or persuasive authority.

[00:18:19] Speaker 01:
And to be sure, Davis arose in a diversity posture.

[00:18:23] Speaker 01:
But the key holding from Davis that we are relying on is its first one.

[00:18:28] Speaker 01:
which is that tribes may accord absolute immunity to their officials within areas of tribal control.

[00:18:37] Speaker 01:
That holding was a federal law holding.

[00:18:40] Speaker 01:
Davis noted that when discussing that issue, that Indian Affairs is an area of federal domination, and it relied on federal cases to reach that point.

[00:18:54] Speaker 01:
The states can't, but tribes can.

[00:18:57] Speaker 02:
I'm sorry your honor.

[00:18:59] Speaker 01:
I don't states can't confer that type of immunity, but tribes can so states can Convert as to state law claims they cannot as to federal okay claims Congress can as your federal law claims and the default rule in fact Is that even both state and federal officials will have qualified immunity of course certainly qualified immunity?

[00:19:23] Speaker 02:
But with regard to 1983 claims, there isn't absolute immunity, right?

[00:19:31] Speaker 02:
For claims against individuals in their individual capacities?

[00:19:35] Speaker 01:
That's correct.

[00:19:36] Speaker 01:
And I'm glad you picked up on section 1983 because I think it illustrates why the principles will be so different between states and tribes in this area, which is the entire civil rights regime was enacted primarily

[00:19:50] Speaker 01:
to ensure enforcement of constitutional guarantees that were implemented during the Reconstruction era in order to curb states' civil rights abuses.

[00:20:01] Speaker 01:
But Congress has made a completely different choice for tribes.

[00:20:06] Speaker 01:
It has created a separate and more limited civil rights regime.

[00:20:09] Speaker 01:
But do you believe Nevada law has any role here?

[00:20:14] Speaker 01:
So we do not think that Nevada law has any role.

[00:20:19] Speaker 01:
You could decide that Nevada, as a matter of comedy, would recognize this immunity and dodge the question as to the state law claim whether Nevada would have to recognize it.

[00:20:29] Speaker 02:
But you're not asking us to do that.

[00:20:31] Speaker 02:
You're asking us to say that this is immunity under federal law, and you are not claiming any functional inquiry immunity under Nevada law.

[00:20:43] Speaker 01:
No, we are not.

[00:20:45] Speaker 01:
We do think it is a discretionary function.

[00:20:48] Speaker 01:
I want to be clear on that.

[00:20:51] Speaker 02:
But I want to make sure that there's no question that Davis decided some issues of Arizona law, right?

[00:20:59] Speaker 01:
I think that the last issue, the comity issue.

[00:21:01] Speaker 02:
But you are not making any claim here for any immunity that arises under Nevada law.

[00:21:08] Speaker 01:
That is not the basis that Judge Du ruled on in that.

[00:21:12] Speaker 01:
presented that claim because we think it is Tribal immunity a question of federal law that applies and that it can't be Diminished by the states and if I could make a point about another reason why we understand tribal immunity interruptive yes, give me one second.

[00:21:26] Speaker 04:
What about for Mr.. Burke?

[00:21:28] Speaker 01:
There's a state law claim asserted against him right so yeah, and and so there's two things I'd like to say in response that the first is that I think

[00:21:37] Speaker 01:
You may well find at the end of this that there ends up not being any jurisdiction left as to that claim I think if you really go through the analysis you find that at least one of these doctrines bars the federal claims you don't ultimately need to decide as to the state law claim whether the analysis would be Different from the federal claims because once you knock out the federal claims against Burke and against the tribal police officers There's no longer going to be supplemental jurisdiction

[00:22:02] Speaker 01:
That state law claim and you can dismiss it on that one to answer my colleagues question under the hypothetical That we're not going to agree with you on federal law if we were to get to that point So certainly and I didn't mean to avoid the question by any means So as to the state law claim a tribe can choose to assert state immunity we see that for instance in the modoc case but tribe has its own immunity under

[00:22:31] Speaker 01:
federal law principles.

[00:22:32] Speaker 01:
And that can't be diminished by the states.

[00:22:35] Speaker 01:
And I think it's important to understand that, ultimately, sovereign immunity and official immunity are both aspects of a tribe's sovereignty.

[00:22:45] Speaker 01:
That is how the Supreme Court described official immunity, for instance, in Schuer.

[00:22:51] Speaker 01:
It said, the concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine

[00:23:00] Speaker 01:
of sovereign immunity.

[00:23:01] Speaker 01:
Tribal sovereign immunity routinely bars state law claims.

[00:23:06] Speaker 01:
It follows that tribal official immunity likewise being this common law aspect of sovereignty that tribes retain also applies against state law claims when it is properly asserted as we think it is here.

[00:23:20] Speaker 01:
If there are no further questions, actually.

[00:23:23] Speaker 00:
Let me ask this.

[00:23:24] Speaker 00:
So you agree that federal common law would apply, but we would not look to a functionality test for the absolute immunity issue.

[00:23:35] Speaker 00:
You would say that so long as the tribe asserts immunity on behalf of its officers, that's the end of the story.

[00:23:44] Speaker 01:
Within areas of tribal control, I think that is a really critical limitation on

[00:23:50] Speaker 01:
the rule that Davis recognized.

[00:23:52] Speaker 01:
Areas of tribal control are places where the Supreme Court and Congress have always recognized that the need for protection at its highest and tribal power is at its apex.

[00:24:01] Speaker 01:
So it is those areas where tribes retain this authority to extend their immunity to the full force.

[00:24:07] Speaker 01:
And Davis makes clear that includes personnel management functions.

[00:24:11] Speaker 01:
It could also include, for instance, administering elections or determining who's a member of the tribe.

[00:24:16] Speaker 01:
These are things that are internal to the tribe.

[00:24:18] Speaker 01:
critical to tribal self-determination.

[00:24:20] Speaker 00:
Why wasn't that a determinative factor for Lewis versus Clark?

[00:24:24] Speaker 00:
I'm trying to square what you're saying with how the Supreme Court addressed Lewis versus Clark.

[00:24:29] Speaker 01:
I appreciate that question.

[00:24:30] Speaker 01:
So first, I would say it wasn't an area of tribal control.

[00:24:33] Speaker 01:
Davis itself, when describing an area of tribal control, talks about tribal control or internal relations.

[00:24:38] Speaker 01:
Lewis is an off-reservation commercial action.

[00:24:45] Speaker 01:
There's nothing about that that is internal to the tribe or related to tribal self-governance.

[00:24:49] Speaker 00:
But that really had no bearing on the analysis.

[00:24:53] Speaker 00:
I mean, the Supreme Court was really relying on the distinction between official capacity and personal capacity suits.

[00:25:02] Speaker 00:
So nowhere do I remember hearing that, well, because this happened outside of the tribal jurisdiction, that changes the analysis.

[00:25:11] Speaker 00:
That didn't come up in acres bonusing either.

[00:25:13] Speaker 00:
Where do we draw that precedent in order to assess these existing lines of authority?

[00:25:22] Speaker 02:
Can I add something to your question?

[00:25:23] Speaker 02:
Is that OK?

[00:25:24] Speaker 02:
Yeah, please.

[00:25:25] Speaker 02:
And to quote one part of Lewis, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities.

[00:25:44] Speaker 01:
So, you know, I, maybe I don't want to repeat a point, but I want to make sure I'm clear that I think Lewis raises some good questions about sovereign immunity defenses.

[00:25:56] Speaker 01:
When you're talking about individual officers and you're talking about sovereign immunity, most of the time it will fail.

[00:26:01] Speaker 01:
We think it still should succeed here, but that's not the primary argument.

[00:26:05] Speaker 00:
Let me let me let me go with one more with acres bonusing I mean the suit was literally against tribal judges and and the court system within I mean I I can't think of something more ingrained with with with tribal issue than that and

[00:26:19] Speaker 00:
And yet, because of the nature of the personal capacity suit, that is how the panel analyzed that issue.

[00:26:27] Speaker 00:
If you're correct in what you're saying, then wouldn't tribal sovereign immunity have wiped away the ability to even bring those claims at all?

[00:26:37] Speaker 01:
The thing I think I would highlight about Acres is that it did apply absolute immunity, and it did bar the claims, even though it found sovereign immunity didn't apply, which is why I'm not trying to

[00:26:49] Speaker 01:
overemphasize the sovereign immunity argument here.

[00:26:53] Speaker 01:
Though I'd also note that Lewis specifically cited Davis, distinguished it.

[00:26:58] Speaker 00:
Sorry, so as I understand sovereign immunity off the table, but in talking about absolute immunity, I think what you're trying to say is if the tribe decides to accord immunity to its officers, to its employees,

[00:27:13] Speaker 00:
then all of them should be entitled to absolute immunity, and we never look at a functional test.

[00:27:18] Speaker 00:
But that's not how acres bonusing played out.

[00:27:22] Speaker 01:
Well, in that case, there was no claim that the tribe had expressly conferred.

[00:27:26] Speaker 01:
I think that in the absence of the tribe expressly conferring it, then you do do the functional test under the ordinary principles.

[00:27:37] Speaker 01:
And tribes face a difficult choice when they are deciding whether they're going to confer.

[00:27:41] Speaker 01:
absolute immunity within areas of tribal control because they face competing considerations.

[00:27:46] Speaker 01:
You haven't seen this issue arise a ton, I think, because many tribes don't decide actually to extend it to the fullest capacity.

[00:27:54] Speaker 01:
On the one hand, they are going to be concerned about the reasons immunity exists in the first place, harassing lawsuits that interfere with tribal governance.

[00:28:02] Speaker 01:
But they're also going to be concerned about over-insulating their officials because they don't have any reason to want

[00:28:10] Speaker 01:
bad internal actors to get away with doing things that are problematic.

[00:28:15] Speaker 01:
They share an interest in justice, like all governments do, for persons within their care and protection in any way.

[00:28:21] Speaker 01:
And from the perspective of effective governance, if bad actors run amok within a tribal government, that's going to harm the tribal government.

[00:28:32] Speaker 01:
It's going to undermine the effective administration's laws, and it's going to make it harder

[00:28:36] Speaker 01:
for a tribe to recruit good talent, because good employees will not want to work for bad supervisors.

[00:28:42] Speaker 01:
So tribes have to make a choice.

[00:28:43] Speaker 01:
Do they rely only on their internal things, like grievance procedures, like a tribal court?

[00:28:53] Speaker 01:
And there is a tribal court here.

[00:28:54] Speaker 01:
There is tribal laws that could be invoked.

[00:28:58] Speaker 01:
Or do they also invite the state and federal governments into these areas of tribal control?

[00:29:03] Speaker 01:
I might turn to qualified immunity, because I see my time is.

[00:29:06] Speaker 00:
Can you turn to necessary party?

[00:29:08] Speaker 01:
Yes, absolutely.

[00:29:10] Speaker 00:
Why do you believe the tribe was a necessary party here?

[00:29:14] Speaker 01:
So I think that the tribe is a necessary party because of how the complaint is pled.

[00:29:19] Speaker 01:
My friend on the other side said that Mr. Irwin has no issues with the tribe, that he's trying to vindicate the tribe's interests.

[00:29:28] Speaker 01:
Of course, the tribal amicus brief contests that claim.

[00:29:32] Speaker 01:
And it's really, it's the tribe's asserted interest here that's at stake, not any interest we say it has.

[00:29:38] Speaker 01:
It's the claim the tribe's made.

[00:29:40] Speaker 01:
But looking at the First Amendment complaint, we do see that Irwin, in moments of candor, admits that this is a very unusual case where he's really focused on what the tribe has done.

[00:29:52] Speaker 01:
And I didn't cite these in the brief, so I want to make sure to get them out.

[00:29:57] Speaker 01:
Paragraph 324 of the amended complaint, which is that

[00:30:01] Speaker 01:
Page 483 of the record he says the Washoe tribe Terminated Irwine for refusal to engage in conduct that Irwine in good faith Reasonably believed to be illegal paragraph the Washoe tribe the employer yes He says page 335 the Washoe tribe terminated Irwine in bad faith paragraph 342 the Washoe tribe wrongfully and in bad faith breached this contract and terminated Irwine

[00:30:30] Speaker 01:
And paragraph 343, the conduct by the Washoe tribe was malicious and oppressive and further motivated to destroy Irwine's career in law enforcement.

[00:30:40] Speaker 01:
So this really is not about individual actions.

[00:30:43] Speaker 01:
The tribe's actions are just as much at stake as my individual clients.

[00:30:49] Speaker 01:
And we also see that in the description of the conduct here.

[00:30:51] Speaker 01:
There are multiple times we see there are many actors involved that are not just my clients.

[00:30:58] Speaker 01:
We see at paragraph

[00:31:00] Speaker 01:
141, and my friend on the other side sort of alluded to this when he said Mr. Irwin had gone through the grievance process before.

[00:31:07] Speaker 01:
The first incident involving the alleged conduct, the alleged disparate treatment between a Native American officer and Mr. Irwin, that did go through the grievance process, and the HR department, the relevant board, ultimately upheld the performance improvement plan.

[00:31:25] Speaker 01:
We see that at paragraph 141.

[00:31:28] Speaker 01:
As to whether he was stymied from using the grievance process, he alleges at paragraph 165 that he did alert HR, and HR confirmed that it was outside of time for him to file.

[00:31:45] Speaker 02:
Sort of anybody who's trying to get damages for wrongful termination, same would apply.

[00:31:54] Speaker 01:
If you are talking about whether a tribe itself is complying with its

[00:31:57] Speaker 01:
Procedures and your own allegations are there's no relief.

[00:32:01] Speaker 02:
He can get against the tribe, right?

[00:32:03] Speaker 02:
That's correct sovereign immunity will bar it so he can't get any relief against the tribe He can get money from individuals in the federal court.

[00:32:11] Speaker 02:
I mean, I think also on qualified immunity He won't know I understand but I mean if he succeeds he gets money jet money judgments against people in us

[00:32:22] Speaker 01:
I'm not sure I fully understand your honor's question.

[00:32:27] Speaker 01:
I'd like to really underscore the difference between the real party and interest test for sovereign immunity and the required party test prescribed by rule 19 because they are really distinct from each other.

[00:32:40] Speaker 01:
If you can show someone is a real party and interest they will be a necessary party I think but

[00:32:47] Speaker 01:
The vice versa is not true.

[00:32:48] Speaker 01:
You can often be a required party without being the real party and interest.

[00:32:54] Speaker 01:
This court has phrased it as follows.

[00:32:59] Speaker 01:
The question, I'm sorry.

[00:33:07] Speaker 01:
So the Supreme Court has said that when a sovereign is a required party to a suit against one of its officials, this is from Samantar v. Yusuf, and the site is 560 US.

[00:33:16] Speaker 01:
at pages 324 to 325, the district court may have to dismiss the suit regardless of whether the official is immune.

[00:33:24] Speaker 01:
And when we see the phrasing between the two inquiries, sovereign immunity is a very remedy-focused analysis.

[00:33:30] Speaker 01:
In acres bonus in this court said, the question is whether any remedy will operate against the sovereign and the critical inquiries who may be legally bound by the court's adverse judgment.

[00:33:38] Speaker 01:
But when this court has talked about rule 19, a necessary party, and when the Supreme Court has talked about it, the language has been far broader.

[00:33:45] Speaker 01:
This court has said in EEOC versus Peabody, by definition, parties to be joined under Rule 19 are those against whom no relief has been formally sought, but who are situated as a practical matter so as to impair their ability to protect their interests.

[00:34:02] Speaker 01:
You don't need to show that their interests will actually be harmed.

[00:34:04] Speaker 01:
You have to show that, practically speaking, their interests could be harmed, and more importantly, that their interests could be undermined by not being able to participate in the proceedings.

[00:34:14] Speaker 01:
And then as to the question as to whether monetary... How could the tribe's interest be harmed under that, applying that law?

[00:34:21] Speaker 01:
Yeah, so I think that at bottom, the gist of this suit is that the tribe did not comply with its own procedures and valid and fired him without proper cause.

[00:34:30] Speaker 01:
I think that, in fact, he did get to use the grievance process as claimed by his own allegations.

[00:34:37] Speaker 01:
He provides what he says was the grievance procedure.

[00:34:39] Speaker 01:
It has sort of an opt out where the chairman can sort of

[00:34:43] Speaker 01:
go to the HR committee and override whatever was done.

[00:34:46] Speaker 01:
And he says he did talk to the chairman.

[00:34:48] Speaker 01:
And then nothing happened.

[00:34:49] Speaker 01:
And he also says no other tribal official acted on.

[00:34:52] Speaker 01:
So it really goes to everything.

[00:34:54] Speaker 01:
Finally, as to qualified immunity, I'd just like to say we think that the facts are undisputed there.

[00:35:00] Speaker 01:
The law is clear in the sense that it's very unclear he has a cause of action as to any of these matters.

[00:35:07] Speaker 01:
And so we'd ask the court to affirm, not remand.

[00:35:10] Speaker 01:
I think we'll just be back here a year on qualified immunity.

[00:35:13] Speaker 01:
and the exact same record.

[00:35:14] Speaker 01:
Thank you.

[00:35:23] Speaker 03:
Thank you.

[00:35:24] Speaker 03:
I'll be brief.

[00:35:26] Speaker 03:
Turning to the rule 19 issue.

[00:35:27] Speaker 03:
The district court found that the claims raised by the plaintiff would necessarily involve review of the tribe's employment policies, thus directly implicate the tribe's ability to govern its internal affairs.

[00:35:37] Speaker 03:
But there's nothing in the relief sought by Mr. Rewind that does anything like that.

[00:35:41] Speaker 03:
He's seeking damages from individuals.

[00:35:43] Speaker 03:
He's not seeking injunctive relief against the tribe.

[00:35:45] Speaker 03:
He's not seeking injunctive relief against the defendants.

[00:35:47] Speaker 03:
He's simply seeking damages for their failure to follow the tribe's own policies.

[00:35:52] Speaker 03:
And as Your Honor pointed out, of course,

[00:35:55] Speaker 03:
He was terminated from employment from the Washoe tribe based on the actions that we're complaining about of the defendants.

[00:36:03] Speaker 03:
We didn't sue the tribe.

[00:36:05] Speaker 03:
Mudding the waters on that by pointing out specific instances where we describe that he was actually employed by the tribe, I don't think, assists in clarifying the issues before the court.

[00:36:16] Speaker 03:
And tribes have understandably disliked Lewis v. Clark.

[00:36:23] Speaker 03:
revolutionized and clarified, added great clarity to when you can bring these claims against individual defendants who also happen to be tribal employees, and they didn't mince words.

[00:36:36] Speaker 03:
If it's an individual capacity suit and you're seeking damages against the individual, it's simply not covered by sovereign immunity.

[00:36:42] Speaker 03:
Turning to the absolute immunity argument.

[00:36:44] Speaker 04:
Your friend, excuse me for interrupting, your friend referred to several paragraphs in the First Amendment complaint, as you mentioned a moment ago.

[00:36:53] Speaker 04:
Paragraph 325 says the Washoe tribe outlined many of these incidents in Irwin's termination paperwork that it used as justification to terminate Irwin.

[00:37:03] Speaker 04:
It has to be the Washoe tribe.

[00:37:07] Speaker 04:
Admitted, your honor.

[00:37:07] Speaker 04:
It sounds like you're arguing now, well, what I really meant was these individuals, the chief, the deputy chief, et cetera, they terminated him.

[00:37:19] Speaker 04:
And it sounds like you're saying,

[00:37:23] Speaker 04:
Well, I'm not sure what you're saying.

[00:37:24] Speaker 04:
They were following tribal policies or tribal policies were fine and they were bad apples who were acting not in accordance with the policies and tortiously violating your client's rights as you've alleged in several counts in your complaint.

[00:37:45] Speaker 04:
What are you saying?

[00:37:46] Speaker 03:
I'm saying it's not the tribe, it's the individual defendants, but the tribes as employees of the defendants caused Mr. Irwin to be terminated from the tribe.

[00:37:54] Speaker 04:
Well, don't you need to amend your complaint?

[00:37:56] Speaker 03:
I may need to do that, Your Honor.

[00:37:58] Speaker 04:
Well, so what do we do at this point?

[00:38:01] Speaker 04:
This is the first amended complaint.

[00:38:02] Speaker 04:
You've done it once.

[00:38:03] Speaker 03:
Yes, Your Honor.

[00:38:04] Speaker 03:
I think that remand on the sovereign immunity issue is the appropriate remedy at this point, because that's the basis upon which the district court made its decision.

[00:38:14] Speaker 03:
And I'd like to circle back to the sovereign immunity slash absolute immunity argument.

[00:38:19] Speaker 03:
I mean, I think we're kind of comparing apples and oranges here.

[00:38:24] Speaker 03:
Sovereign immunity is one thing.

[00:38:27] Speaker 03:
Tribes can't be sued.

[00:38:28] Speaker 03:
No one disputes that.

[00:38:29] Speaker 03:
Absolute immunity is a distinct legal concept, the contours of which have been outlined in federal and state law.

[00:38:36] Speaker 03:
It applies to certain types of actors.

[00:38:39] Speaker 03:
A tribe simply saying, well, Louis V. Clark said we don't

[00:38:43] Speaker 03:
can't confer sovereign immunity to our employees.

[00:38:45] Speaker 03:
So we're going to confer blanket absolute immunity on everything they do is a misuse of the concept.

[00:38:52] Speaker 03:
Can they confer absolute immunity on tribal judges, tribal prosecutors, the president of the tribe, all the other police, tribal police testifying?

[00:39:04] Speaker 03:
Of course they can.

[00:39:05] Speaker 03:
Consistent with the concept which is what the really the holding in Davis versus the child is really about in our mind and Lastly I think

[00:39:21] Speaker 03:
Lewis v. Clark made clear in discussing Davis that sovereign immunities don't preclude the application of personal immunities, absolute immunity where appropriate for individual defendants, qualified immunity.

[00:39:35] Speaker 03:
But to say that a government entity can confer a blanket absolute immunity, personal immunity on all of its employees for all circumstances at all times is inconsistent with the case and the concept, Your Honors.

[00:39:47] Speaker 03:
I'd be glad to answer any more questions you have, but I think I've run out of time.

[00:39:52] Speaker 03:
Thanks for the say.

[00:39:53] Speaker 02:
All right, we thank council for their arguments.

[00:39:55] Speaker 02:
The case just argued is submitted.

[00:39:57] Speaker 02:
My understanding is our law clerks are going to talk to the students, is that right?

[00:40:01] Speaker 02:
So we are going to conference and we will join you either in the discussion or for lunch as soon as we possibly can.

[00:40:09] Speaker 02:
And with that, we are adjourned.