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

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

[00:00:27] Speaker 03:
May it please the court. Once again, my name is Luke Busby, and I represent appellant Michael Irwine. I'd like to reserve five minutes for rebuttal, if I may, Your Honor. Yes. Thank you.

[00:00:37] Speaker 03:
At the outset, it is important to address the foundational question that runs through every aspect of this case, whether the defendants can avail themselves of the Washoe tribe's sovereign immunity to avoid answering for their individual conduct. The answer under controlling authority is plainly no. 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 in their individual capacities, where 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. 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. Irwin'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 Akers' bonusing, sovereign immunity provides no shield here.

[00:01:53] Speaker 02:
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. I think that issue was explored at length in Akers Bonusing. I actually went back and listened to the oral arguments in that case before this court, and there were very similar issues. And in that case, the court held that any case against a tribal employee will have some valence of effect on a tribe. But that's not really the question. The question, as framed by Lewis v. Clark and framed very starkly, was that if the judgment does not operate against the tribe, 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 Tribe's 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 it immunized tribal officers and employees for damages arising for any work they do for the tribe. 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. This holding is nothing more than a relabeling of sovereign immunity as absolute immunity, and it cannot survive scrutiny under Lewis and Akers' bonusing.

[00:03:28] Speaker 03:
Nowhere in Title 33 of the Code does the document mention or reference absolute immunity. It speaks exclusively in terms of sovereign immunity. 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 Akers Bonusing, this court in Akers Bonusing, has already rejected as a basis for shielding individual capacity defendants.

[00:03:52] Speaker 02:
Well, 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?

[00:04:07] Speaker 02:
Yes.

[00:04:10] Speaker 02:
They could assert that they're entitled to it. 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? Yes, Your Honor. And this would be under the? second judicial district court case from 2002 primarily?

[00:04:39] Speaker 03:
Mr. That is correct, Your Honor. And it's not dissimilar from the way that federal courts look at absolute immunity issues. And that's kind of where the conceptual confusion in this case arose.

[00:04:49] Speaker 02:
Mr. And they cite a lot of federal cases. Mr. Indeed, Your Honor.

[00:04:53] Speaker 03:
Yeah, Burke specifically, I believe, if I'm recalling correctly. Mr. Butts, maybe? Mr. I'm sorry. Yes, that's it.

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

[00:05:11] Speaker 03:
What's their job? Are they a judge? Are they a prosecutor? 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. They're immune, right? 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. Same with prosecutors. If a prosecutor, God forbid, discriminates unlawfully against someone in their office in an employment context, they can be sued for that because it's not a prosecutorial function.

[00:05:52] Speaker 03:
And that same test is described in Davis v. Luttrell, You know, and the concept just has... That's the Navajo case. Yeah, I believe it is. Yeah, I believe it is, Your Honor.

[00:06:05] Speaker 03:
On which we provided a supplemental briefing.

[00:06:10] Speaker 00:
And the... Mr. Grosby, would we be applying federal common law or Nevada law to this question of absolute immunity in your view? 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. Pardon the pun. That it's a substantive issue of law. So for the federal claims, you would apply federal law. And for the state law claims, you would apply state law claims on the immunity question. And we think it's clear under this court's jurisprudence that immunity questions are substantive questions of law, not procedural. Because we filed... several federal claims in this case.

[00:06:56] Speaker 03:
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. It has supplemental jurisdiction over the state law claims because they're pendent, they're involving the same transaction or occurrence. So our view is that if the court is going to look at the immunity question under the Davis v. Patel that it needs to do so differently for one defendant in this case, who's Gene Burke. He was the general counsel for the tribe.

[00:07:29] Speaker 03:
The other defendants are all tribal officers. 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. They're not judges. They're police officers engaged in administrative functions related to employment. Now, Mr. Burke, he said, Is general counsel for the tribe? So in the Davis case, you know, he checks the first box. Is he involved in the judicial process? Is he available to avail himself of judicial or quasi-judicial immunity, arguably? Well, that argument falls apart on the second prong, which is what was he doing?

[00:08:05] 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. We allege that he inserted himself into this process and denied Mr. Irwine the right to grieve his case, challenging his termination. Now, how does Mr. Irwine know that Burke had nothing to do with the process? What's the basis for that allegation? As described in the First Amendment complaint, he'd gone through it before, and Burke essentially had nothing to do with it. And he also...

[00:08:37] Speaker 03:
We also describe in the complaint a conversation with Chairman Smoky where Mr. Irwine says, hey, you know, I've been terminated. This is a problem. Smoky 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-pled, hopefully well-pled facts is true at this point in the proceedings, we believe dismissal would be inappropriate. Immunity is a threshold issue, granted. But whether it's disputed issues of fact on that issue and well-planned allegations to support a claim that these actually weren't things that Mr. Rick 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.

[00:09:27] Speaker 00:
There could be a separate question of qualified immunity, but the district court did not reach that question. Is that right?

[00:09:32] Speaker 03:
Correct, Your Honor. A significant amount of the briefing was dedicated to distinct challenges to the claims based on 12B6, which the court can review de novo. 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 know, you want those issues to be fleshed out typically, I think, at the district court level for the district court to rule on a qualified immunity issue or claim sufficiency issue before dealing with it for the first time on appeal. Judge Dew's opinion was limited to, you know, the two really fundamental logistic 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 with 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 Akers bonusing case is really where I went for guidance on this issue, is how the court might see it. They observed any suit against a tribal employee for conduct in the course of their official duties inevitably has some connection, you know, to tribal government. And if that were the test, the court would end up applying tribal sovereign immunity whenever a tribal employee active within the course and the scope of their employment was involved. But that's what this court said, you know, Lewis said not to do.

[00:11:11] 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, you know, driving and gets into a car accident. Here we're talking about policing within the tribe. And I, and I take your point. I think acres bonusing says not just anything, but there's a little bit more meat to, to the potential interference with, with the tribe here. Isn't there?

[00:11:39] Speaker 03:
Uh, that's alleged by the opposing party, but we actually, our position is that what the defendants did was actually go against tribal policy.

[00:11:48] Speaker 03:
Uh, they didn't, And so that argument, we don't think this should be seen as particularly persuasive because Mr. Irwine alleges he was wrongfully fired. All he wanted to do was grieve his termination, which he was allowed to do under their own rules. And he wasn't allowed to do so for unexplained reasons.

[00:12:07] Speaker 03:
That being the case.

[00:12:09] Speaker 00:
I mean, 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?

[00:12:22] Speaker 03:
Exactly, Your Honor. And I think the underlying kind of premise of that argument is that Mr. Irwin really has no issue with the tribe. He doesn't want to sue them. He doesn't think the tribe itself did anything wrong. 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. And That being the case, we don't, you know, from our view, Mr. Irwine'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. Irwine is in a unique position as a plaintiff in this case because there's, as described in the first amended complaint, it's a long series of events that have led him to this place. But there's lots of facts to show that Mr. Irwine's a great cop. And he was repeatedly challenged administratively because of his willingness essentially to report the misconduct of fellow officers when he was essentially a very young police officer. 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. Why not just let him grieve his case? makes no sense to us whatsoever. If he did something wrong and the tribal grievance committee determines that that's the case, fine. But 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. We haven't conducted you know, a lot of discovery. We don't know exactly what occurred at the tribe, who was saying what to whom. So, for example, the allegations or the assertion that, hey, if Mr. Irwine was okay, why didn't the tribe just hire him back? I think that was in the supplemental briefing.

[00:14:32] Speaker 03:
Well, maybe, you know, we don't know. Mr. Irwine never heard back from Tribal Chairman Smokey after he brought up the issue. Hey, you know, I've been terminated. I think it's wrong, and Burke won't let me talk to anybody.

[00:14:44] Speaker 03:
So, you know, We don't know. 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. Yes.

[00:15:10] Speaker 01:
Good morning, Your Honors. Leonard Powell on behalf of Tribal Appalachians.

[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 qualified immunity and Rule 19 as well, because any one of these bases is sufficient to affirm the judgment below. Starting with absolute immunity, this case bears a striking resemblance to the facts in Davis. 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. That was the exact type of suit at issue in Davis, and under Davis, absolute immunity applies.

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

[00:16:36] Speaker 02:
And 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? 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 relying on official immunity and Rule 19, and we don't think you need to address the sovereign immunity argument. We think that Lewis was a sovereign immunity decision, not an official immunity decision, that it was essentially a law school 101 type decision. Courts for decades had been properly recognizing the distinction between sovereign immunity and official immunity in the context of state and federal immunity.

[00:17:34] Speaker 01:
But for whatever reason, they had gone astray in the area of tribal immunities. And Lewis corrected that while recognizing that officials may still be able to recognize, may still be able to raise official immunity defenses. And then this court's decision in Acres 1 confirmed that official immunity defenses can be asserted. 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, 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. And to be sure, Davis arose in a diversity posture. But the key holding from Davis that we are relying on is its first one, which is that tribes may accord absolute immunity to their officials within areas of tribal control. That holding was a federal law holding 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.

[00:18:53] Speaker 01:
The states can't, but tribes can.

[00:18:58] Speaker 02:
I'm sorry, Your Honor, don't. States can't confer that type of immunity, but tribes can.

[00:19:03] Speaker 01:
So states can confer it as to state law claims. They cannot as to federal law claims. Congress can as to federal law claims. And the default rule, in fact, is that even both state and federal officials will have qualified immunity, of course.

[00:19:21] Speaker 02:
Yeah, certainly qualified immunity. But with regard to 1983 claims, there isn't absolute immunity, right? For claims against individuals in their individual capacities?

[00:19:35] Speaker 01:
That's correct. 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 to ensure enforcement of constitutional guarantees that were implemented during the Reconstruction era in order to curb states' civil rights abuses. But The 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. 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. I mean, 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. 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?

[00:20:44] Speaker 01:
No, we are not. We do think it is a discretionary function. 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? I think that the last issue, the comedy issue. 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 Dew ruled on in that. We haven't presented that claim because we think it is tribal immunity, a question of federal law that applies and that it can't be diminished publicly. By the states. And if I could make a point about another reason why we understand tribal immunity.

[00:21:24] Speaker 04:
Let me interrupt you for one second. What about for Mr. Burke?

[00:21:28] Speaker 04:
There's a state law claim asserted against him.

[00:21:30] Speaker 01:
Right. So, yeah. And so there's two things I'd like to say in response to that. The first is that I think 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 immunity 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 over that state law claim, and you can dismiss it on that basis.

[00:22:05] Speaker 02:
I wanted to answer my colleague's question under the hypothetical that we're not going to agree with you on federal law if we were to get to that point.

[00:22:14] Speaker 01:
So...

[00:22:15] Speaker 01:
Certainly, and I didn't mean to avoid the question by any means.

[00:22:20] Speaker 01:
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 the tribe has its own immunity under federal law principles, 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. That is how the Supreme Court described official immunity, for instance, in Shure. It said, the concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity. 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.

[00:23:22] Speaker 00:
Let me ask this. So you agree that federal common law would apply, but we would not look to a functionality test for the absolute immunity issue. 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 the rule that Davis recognized. 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. So it is those areas where tribes retain this authority to extend their immunity to the full force. And Davis makes clear that includes personnel management functions, 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 and critical to tribal self-determination.

[00:24:20] Speaker 00:
Why wasn't that a determinative factor for Lewis v. Clark? I'm trying to square what you're saying with how the Supreme Court addressed Lewis v. Clark.

[00:24:29] Speaker 01:
I appreciate that question. So first I would say it wasn't an area of tribal control. Davis itself, when describing area of tribal control, talks about tribal control over internal relations. Lewis is an off-reservation person.

[00:24:42] Speaker 01:
commercial action, and 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. I mean, the Supreme Court was really relying on the distinction between official capacity and personal capacity suits.

[00:25:02] Speaker 00:
So, you know, nowhere do I remember hearing that, well, because this happened outside of the tribal jurisdiction, that changes the analysis. That didn't come up in Acres Bonusing either. So 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? Sure. Is that okay? 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.

[00:25:45] Speaker 01:
So, you know, 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. 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:
And we think it still should succeed here, but that's not the primary argument that we're assuming.

[00:26:06] Speaker 00:
Let me go with one more, with Akers' bonusing. I mean, the suit was literally against tribal judges and the court system. I mean, I can't think of something more ingrained with tribal issue than that. And yet, because of the nature of the personal capacity suit, that is how the panel analyzed that issue.

[00:26:28] 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, you know, why I'm not trying to overemphasize the sovereign immunity argument here.

[00:26:52] Speaker 01:
Though I'd also note that Lewis specifically cited Davis, distinguished it from that case.

[00:26:59] Speaker 00:
So as I understand...

[00:27:01] Speaker 00:
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, then all of them should be entitled to absolute immunity, and we never look at a functional test. But that's not how Akers Bonusing played out.

[00:27:22] Speaker 01:
Well, in that case, there was no claim that the tribe had expressly conferred. I think that in the absence of the tribe, expressly conferring it, then you do do the functional test under the ordinary principles. And tribes face a difficult choice when they are deciding whether they're going to confer absolute immunity within areas of tribal control because they face competing considerations. 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. But they're also going to be concerned about over-insulating their officials because they don't have any reason to want bad internal actors to get away with doing things that are problematic. They share an interest in justice, like all governments do, for persons within their care and protection in any way. And they, from the perspective of effective governance, if Bad actors run amok within a tribal government.

[00:28:30] Speaker 01:
That's going to harm the tribal government. It's going to undermine the effective administration's laws, and it's going to make it harder for a tribe to recruit good talent because good employees will not want to work for bad supervisors. So tribes have to make a choice. Do they rely only on their internal things like grievance procedures, like a tribal court? And there is a tribal court here. There is a tribal laws that could be invoked, 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. Can you turn to necessary party? 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. My friend on the other side said that Mr. Irwine has no issues with the tribe that he's trying to vindicate the tribe's interest. Of course, the tribal amicus brief contests that claim, and really it's the tribe's asserted interest here that's at stake, not any interest we say it has. It's the claim the tribe's made. But looking at the First Amendment complaint, we do see that Irvine, 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 at 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.

[00:30:12] Speaker 02:
Was it the Washoe tribe, the employer?

[00:30:15] Speaker 01:
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. And paragraph 343, the conduct by the Washoe tribe was malicious and oppressive and further motivated to destroy Irwine's career in law enforcement. So this really is not about individual actions. The tribe's actions are just as much at stake as my individual client's.

[00:30:49] Speaker 01:
And we also see that in the description of the conduct here. There are multiple times we see there are many actors involved that are not just my clients. We see at paragraph 141, and my friend on the other side sort of alluded to this when he said Mr. Irwine had gone through the grievance process before, the first incident involving the alleged conduct, the alleged disparate treatment between a Native American officer and Mr. Irwine, 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.

[00:31:29] 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.

[00:31:53] Speaker 01:
If you are talking about whether a tribe itself is compliant with its own procedures and your own allegations are... Well, there's no relief he can get against the tribe, right? That's correct. Sovereign immunity will bar that.

[00:32:05] Speaker 02:
So he can't get any relief against the tribe. He can get money from individuals.

[00:32:09] Speaker 01:
In the federal court. I mean, I think Also, on qualified immunity, he won't almost succeed here.

[00:32:14] Speaker 02:
No, I understand, but I mean if he succeeds, he gets money judgments against people.

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

[00:32:24] Speaker 02:
The relief he would get if he were to win.

[00:32:26] Speaker 01:
Ah, I see. So there 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. If you can show someone is a real party and interest, They will be a necessary party, I think, but the vice versa is not true. You can often be a required party without being the real party and interest. 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 U.S. at pages 324 to 325, the district court may have to dismiss the suit regardless of whether the official is immune. And when we see the phrasing between the two inquiries, sovereign immunity is a very remedy-focused analysis. In Ager's 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 v. 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. You don't need to show that their interests will actually be harmed. 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. And then as to the question as to whether monetary – How could the tribe's interests 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 invalid and fired him without proper cause. I think that, in fact, he did get to use the grievance process as claimed by his own allegation – He provides what he says was the grievance procedure. It has sort of an opt-out where the chairman can sort of go to the HR committee and override whatever was done. And he says he did talk to the chairman, and then nothing happened. And he also says no other tribal official acted on.

[00:34:52] Speaker 01:
So it really goes to everything. Finally, as to qualified immunity, I'd just like to say we think that the facts are undisputed there. The law is clear in the sense that it's very unclear he has a cause of action as to any of these matters. And so we ask the court to affirm, not remand. I think we'll just be back here in a year on qualified immunity and the exact same record. Thank you.

[00:35:15] Speaker 03:
Thank you, Your Honors. I'll be brief.

[00:35:26] Speaker 03:
Turning to the Rule 19 issue, 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. But there's nothing in the relief sought by Mr. Irwin that does anything like that. He's seeking damages from individuals. He's not seeking injunctive relief against the tribe. He's not seeking injunctive relief against the defendants. He's simply seeking damages for their failure to follow the tribe's own policies. And as Your Honor pointed out, of course, it's the tribe. He was terminated from employment from the Washoe tribe based on the actions that we're complaining about of the defendants.

[00:36:02] Speaker 03:
We didn't sue the tribe.

[00:36:05] Speaker 03:
Muddying the waters on that by pointing out specific instances where we described that he was actually employed by the tribe, I don't think assists in clarifying the issues before the court. And tribes have understandably disliked Lewis v. Clark. It 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.

[00:36:35] 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. 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. Paragraph 325 says the Washoe tribe outlined many of these incidents in Irwine's termination paperwork that it used as justification to terminate Irwine. It, what's the it, has to be the Washoe tribe admitted your honor. It's a, so is this, 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:
Um, and it sounds like you're saying, well, I'm not sure what you're saying. They were following tribal policies or tribal policies were fine and they were bad apples who were, um, acting not in accordance with the policies and tortiously violating your client's rights, as you've alleged in several accounts in your complaint. Which 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? This is the first amended complaint. You've done it once.

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

[00:38:06] Speaker 03:
remand on the sovereign immunity issue as the appropriate remedy at this point because that's the basis upon which the district court made its decision.

[00:38:15] Speaker 03:
And I'd like to circle back to the sovereign immunity slash absolute immunity argument. I mean, I think we're kind of comparing apples and oranges here. Sovereign immunity is one thing.

[00:38:27] Speaker 03:
Tribes can't be sued. No one disputes that.

[00:38:30] Speaker 03:
Absolute immunity is a distinct legal concept, the contours of which have been outlined in federal and state law. It applies to certain types of actors. A tribe simply saying, well, Lewis v. Clark said we can't confer sovereign immunity to our employees, so we're going to confer blanket absolute immunity on everything they do is a misuse of the concept. Can they confer absolute immunity on tribal judges, tribal prosecutors, the president of the tribe?

[00:39:01] Speaker 03:
All the other police, tribal police testifying, of course they can. That's consistent with the concept, which is what the holding in Davis v. Lachelle is really about in our mind.

[00:39:18] Speaker 03:
And lastly, I think Lewis v. Clark made clear in discussing Davis that that sovereign immunities don't preclude the application of personal immunities, absolute immunity where appropriate for individual defendants, qualified immunity. 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. 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 to say.

[00:39:52] Speaker 02:
All right. We thank counsel for their arguments. The case just argued is submitted. My understanding is our law clerks are going to talk to the students. Is that right? So we are going to conference and we will join you either in the discussion or for lunch as soon as we possibly can. And with that, we are adjourned.

[00:40:23] Speaker 03:
for this session stands adjourned