On June 30, 2015, the Ninth Circuit Court of Appeals issued a significant decision in Pistor v. Garcia, Civ. No. 12-17095 (9th Cir. June 30, 2015) (hereafter “Pistor v. Garcia”). In Pistor v. Garcia, the court found that tribal casino employees sued in their individual capacity were not entitled to the defense of the Tonto Apache Tribe’s (“Tribe”) sovereign immunity for their actions.
A group of so-called “advantage gamblers”, using specific techniques to determine wagering advantages at certain video blackjack machines, allegedly won a substantial sum of money from the Tribe’s Mazatxal Casino, owned and operated by the Tribe on tribal land. These gamblers alleged that the named defendants, including Carlos Garcia (Chief of the Tribe’s Police Department), and other Casino and Gaming Office employees, handcuffed the plaintiffs, interrogated them, and confiscated substantial sums of money and personal property from them on October 25, 2011. The plaintiffs alleged the defendants did so wrongfully, with the intent of recovering the gamblers’ winnings, and alleged that the cash and property taken were never returned. The gamblers brought claims against State of Arizona defendants as well as the tribal defendants, as the tribal defendants had met with State and County officials the day before the alleged seizure to discuss the plaintiffs’ winnings.
The tribal defendants had moved the U.S. District Court for the District of Arizona to dismiss the claims under Federal Rules of Procedure 12(b)(1), arguing that the Tribe’s sovereign immunity acted as a defense to the suit, given that the tribal individual defendants acted within their official capacity. The Ninth Circuit panel found that the sovereign immunity defense is “quasi-jurisdictional” in nature, so the District Court should have addressed and decided the 12(b)(1) subject matter jurisdictional question. The Ninth Circuit nonetheless concurred in the District Court’s result, deciding that the Tribe’s sovereign immunity could not be used as a defense in either a 12(b)(1) or 12(b)(6) motion to dismiss because the defendants were sued in their individual capacities, and any financial recovery would run against them as individuals, rather than the Tribe.
The Ninth Circuit, in Pistor v. Garcia, largely followed its analysis in a previous ruling. In the Maxwell v. County of San Diego case, the Ninth Circuit allowed claims to proceed against ambulance paramedics who were employees of the Viejas Tribe’s Fire Department, because the claims were made against the individuals, not the tribe, and the remedies would operate only against the individuals. The Ninth Circuit followed this “remedy-focused analysis” for individual capacity suits, rather than focus instead on whether the individuals were acting within their official capacity or not. It is important to note that the Ninth Circuit distinguishes “individual capacity suits” from “official capacity suits” based upon whether the plaintiff is seeking to “[i]mpose personal liability upon a government official for [wrongful] actions he takes under the color of…law.” In Pistor v. Garcia, plaintiffs alleged tribal defendants took “wrongful” actions in the detention of plaintiffs and seizure of their property. In Maxwell, plaintiffs alleged tribal defendants acted wrongfully in their inappropriate actions in an emergency medical situation that resulted in a patient’s death.
It is unclear from the Pistor v. Garcia case whether this signals a substantial limitation on tribes’ capacity to raise the defense of sovereign immunity, or if it provides potential plaintiffs an opportunity to focus claims and remedies solely upon tribal employees in their individual capacities. Tribes, and tribal employers, will continue to want to review job descriptions, personnel policies, manuals, and operating procedures to limit situations where their employees could be argued to be acting “wrongfully” or otherwise outside the scope of their official capacity.
Please let us know if we may provide additional information regarding the application of the doctrine of sovereign immunity to tribes, tribal businesses, and tribal employees.