California v. Harvier ( 1983 )

REINHARDT, Circuit Judge:

California brought this action under 28 U.S.C. § 2201 (Supp.IV 1980) for a declaratory judgment against the chairman and certain members of the Quechan Tribal Council, and the fish and game warden for the Quechan Tribe of Indians. The state sought a declaration that it was empowered, under “federal Indian law,” to apply and enforce its fish and game laws against non-Indians hunting and fishing on the Quechan reservation. California alleged that the tribal officials had threatened the state’s game wardens and were denying them access to the reservation (Fort Yuma).

In a prior action, California sought the same declaratory relief against the Quechan tribe itself. We held that the doctrine of tribal immunity barred a suit against the tribe, although we strongly suggested in dictum that some type of legal action was still available to the state. California v. Quechan Tribe, 595 F.2d 1153, 1155 (9th Cir.1979). Following our decision, California filed a suit against the tribal officials in their official capacities. The district court granted the defendants’ motion to dismiss California’s complaint but did not expressly dismiss its action. We hold that we lack jurisdiction to hear the state’s appeal from the district court’s order.

On our own motion, we consider whether the order dismissing the complaint is an appealable order. Ordinarily, an order dismissing a complaint but not the underlying action is not a final order and is, therefore, not appealable under 28 U.S.C. § 1291 (1976). Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir.1982); Sherman v. American Federation of Musicians, 588 F.2d 1313, 1315 (10th Cir.1978); Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir.1962). We may regard such an order as final and appealable only if the record shows “special circumstances,” Firchau v. Diamond National Corp., 345 F.2d 269, 270-71 (9th Cir.1965), such that it is “clear” that the court below found that “the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make.. .. ” Marshall, 301 F.2d at 643 (citations omitted). See generally 9 J. Moore, Moore’s Federal Practice H 110.13[1] (2d ed. 1982). Here it is far from clear that the district judge found that California’s action could not be saved by any amendment of the complaint.

In its order granting defendants’ motion to dismiss, the district court said:

Lower court cases on point have drawn a distinction between suits against tribal members in their individual capacities, which may be maintained, and suits against them in their representative capacities, which may not be maintained. The present claim is clearly brought against the defendants in their representative capacities.... In fact, plaintiff’s counsel admitted during argument that this suit is brought against the defendants in their capacity as members of the Tribal Council.

It is not at all clear from the district court’s remarks that it found that the plaintiff’s action could not be saved by any amendment of the complaint which California could reasonably be expected to make. Specifically, the court did not advise the parties how it would rule if the state amended its complaint to allege a cause of action under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

In its order, the court relied on the distinction between suits against tribal members in their individual capacities, and suits against tribal officers acting within their representative capacities. It read the complaint as pleading only the latter type of suit and read California v. Quechan Tribe, 595 F.2d 1153 (9th Cir.1979) as barring such suits. The district judge did not rule, however, that tribal immunity precluded the state from amending its complaint to allege that the tribal officials had exceeded the scope of their authority or were otherwise subject to suit in their individual capacities.

California’s complaint names the defendants “as members of Quechan Tribal Council” in its caption. In the body, the complaint states that “[defendants are officers of the Quechan Tribe of Indians and are sued in their capacity as such.” In describing the nature of the alleged controversy, California states that defendants acted “in their capacity as officers of the Quechan Indian tribe.” California did not name the defendants in their individual capacities or contend that the defendants were acting ultra vires or unconstitutionally. It did not allege that any unlawful conduct was taken by defendants in their individual capacities. Nor did it adequately make such an argument in its papers opposing defendants’ motion to dismiss. To the contrary, by its complaint and in its argument on the motion to dismiss, the state focused the district court’s attention on whether the tribal immunity rule is applicable to tribal officials acting in their official capacities, as well as to the tribe itself.

Defendants noted in their reply memorandum that plaintiff’s complaint did not contain allegations necessary to invoke Ex parte Young but instead was based on the state’s contention that tribal immunity does not bar suits against officials of Indian tribes. At oral argument defendants again stressed the Ex parte Young issue, and expressly acknowledged that under appropriate circumstances tribal officials may be stripped of their immunity and sued as individuals.

We have carefully studied the remarks of counsel and the district court at the hearing on the motion to dismiss. Almost all the remarks of the participants in the dialogue are, when read in context, ambiguous to some extent. However, we note that early in the oral argument, counsel for the state emphasized the state’s fundamental point, saying, “And to my knowledge the Supreme Court has never held that the sovereign immunity doctrine extends to tribal officials.” Then, toward the end of the oral argument, counsel for the state advised the court, “Well, I would just say, briefly, your Honor, that it’s correct, we are suing the tribal officials in this case in their capacity as tribal officers.”

It is clear that counsel did not adequately raise or present the issue whether jurisdiction could properly have been pleaded by suing the tribal officers in their individual capacities on an Ex parte Young theory. It is not possible to determine with any certainty how the district judge would have ruled had a complaint been before him containing such allegations. The judge’s order did not preclude appellant from filing an amended complaint of that nature, and we do not believe the ambiguous colloquy can fairly be construed as “clearly” demonstrating that the district court determined that no possible amendment could save the complaint. Thus we do not find the requisite “special circumstances” present here, and we decline to treat an order dismissing the complaint as a final order for purposes of 28 U.S.C. § 1291.

This case well illustrates the sound policy reasons underlying the final order rule we apply here. Our dissenting colleague urges us to decide important and complex issues of law regarding the sovereign immunity of Indian officials for actions taken pursuant to the valid constitution, bylaws and ordinances of the Indian nation. See generally California v. Quechan Tribe, 595 F.2d at 1154; Quechan Tribe v. Rowe, 531 F.2d 408, 408-10 (9th Cir.1976). Yet the record before us is wholly inadequate for that purpose. In this respect, we need only note that the principal arguments and theories relied on in the dissenting opinion were never presented to or considered by the district court.

There can be no doubt that the final order rule is more than a mere formality. The rule embodies the substantive policy that legal issues should be developed initially before the district courts. The State’s failure to amend its complaint when it reasonably could have been expected to do so deprived the district court of the opportunity to fully explore the sovereign immunity questions raised by the dissent. Our decision that we have no jurisdiction is simply a reaffirmation of the important substantive policy that we have long recognized. See, e.g., Quechan Tribe v. Rowe, 531 F.2d at 412 (Wallace, J., concurring) (when a legal question “has serious consequences and is an issue upon which there is a diversity of opinions ... [t]he developmental process before the district court would provide us with a better foundation upon which to make our decision.”); Westinghouse Electric Corp. v. Weigel, 426 F.2d 1356 (9th Cir.1970).

The dissenting opinion, although it sets forth a number of novel and interesting concepts, is largely irrelevant to the narrow question of law decided here. The entire thrust of our holding is that no final order has been issued by the district court. Although the specific complaint was dismissed, plaintiff’s underlying cause of action remains before the lower court. See supra, at 962, at 1218. Consequently, the State of California could have amended its complaint to allege another potentially permissible basis for jurisdiction. Specifically, the State could have amended its complaint after the order of dismissal and placed the Ex parte Young question squarely before the district judge. Because California failed to do so, the order dismissing the complaint is not a final order and thus is not appealable. As a result, it is simply not necessary to reach the issues discussed in the dissent.¹

The appeal is dismissed for lack of jurisdiction.

1 . Even though we need not resolve the issues raised in the dissent, it is important to note that none of the arguments relied on was ever presented to the district court by the State of California. Rather than proceeding on an Ex parte Young theory, California repeatedly emphasized that the defendants were being sued in their official capacities. See supra at 963, at 1219. In its brief to this court, the State candidly admits that

[sjince the effect of our action would restrain the Tribe from acting to prevent California fish and game officials from entering the reservation to enforce California laws against non-Indians, our action must ... be considered as an action against the Tribe rather than against tribal members acting in their individual capacity.

In dismissing California’s complaint, the district judge did not foreclose the possibility that the complaint could be amended to state a cause of action against the Indians in their individual capacities under an Ex parte Young theory. See, e.g., United States v. State of Oregon, 657 F.2d 1009, 1012 n. 8 (9th Cir.1981); Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1062 (1st Cir.1979). California failed to make such an amendment.

Moreover, the State of California never argued before the district court that any constitutional violations had been committed by the Indians acting in their official capacities. Even the State’s brief on appeal implicitly disclaims any sort of constitutional argument. Rather, the State relied entirely on the theory that the Indians, acting in their official capacities, had violated “general principles of federal Indian law.” Although we do not resolve the issue here, we have serious doubt as to whether highly ambiguous allegations that “general federal law” has been violated are sufficient to strip the shield of sovereign immunity from Indian officers acting in their official capacities. See, e.g., Butz v. Economou, 438 U.S. 478, 520,

98 S.Ct. 2894, 2917, 57 L.Ed.2d 895 (1978) (Rehnquist, J., concurring in part and dissenting in part); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 701, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628 (1948). See also 14 Wright, Miller & Cooper, Federal Practice & Procedure § 3655 at 184 (1969) (“plaintiff specifically must allege the statutory limitation on which he or she relied ...; conclusory allegations about ‘illegal’ or ‘unauthorized’ acts are not enough.”).

Perhaps in response to the inherent weaknesses in California’s complaint, the dissent argues that the provisions of 18 U.S.C. § 1162 and 28 U.S.C. § 1360 may also have been violated. See infra at 967, at 1217-1218. While there is a brief mention of the two statutes in its complaint, the State of California never attempted to explain how the Indians violated those provisions. Indeed, the statutes were not even discussed by the State in its memorandum or during oral argument before the district court. Moreover, the two statutes are procedural in nature, and it is questionable whether they can be read as congressional withdrawals of the Indians’ sovereign immunity in this sort of case. See, e.g., Quechan Tribe of Indians v. Rowe, 350 F.Supp. 106, 109 (S.D.Cal.1972) and cases cited therein, aff’d, 531 F.2d 408 (9th Cir.1976). Nevertheless, the dissent argues, without citing any authority, that the Supremacy Clause of the United States Constitution is violated when officers of an Indian tribe violate state law after the state has been authorized to apply its law by federal statute. This novel Supremacy Clause theory may or may not have merit, but it was never suggested by the State and was not considered by the district court. In view of California’s failure to amend its complaint, we need not speculate how courts would rule on such a Supremacy Clause argument if one were ever properly raised.