that it does not have general and original jurisdiction, nor does it have the
jurisdictional foundation of an administrative record and final decision of
the President/CEO, which is required for appeals brought under the Employee
Appeal Ordinance, the Mashantucket Pequot Tribal Court grants the
defendant’s motion to dismiss plaintiff’s appeal from termination of his
employment as a part-time Cinetropolis theater operator.
January 16, 1998 the plaintiff's part-time employment as a Cinetropolis
theater operator at the Foxwoods Casino operated by the Mashantucket Pequot
Gaming Enterprise (the "Gaming Enterprise") was terminated as a
result of an arrest for negotiating and cashing checks drawn on an account by
an unauthorized person, and subsequent adjudication as a youthful offender by
the Superior Court for the Judicial District of New London at Norwich.
The plaintiff, who was 17 years old at the time, was a part-time
employee, working at the Cinetropolis theater on weekends during the school
year and full time during the summer. The
arrest and adjudication as a youthful offender, and the termination of
employment, occurred while the plaintiff was working on weekends.
The plaintiff vigorously asserted then, and asserted at oral argument
before this court, that his receipt and cashing of the checks was a result of
his young age and gullible nature, that he thought the checks were in payment
for services he had rendered, and that he was manipulated by others who took
advantage of his inexperience.
time after the termination of his part-time employment, the plaintiff
requested a hearing before a Board of Review in order to explain his position
and request reinstatement of his employment, but did not receive a hearing.
Thereafter he filed a Notice of Administrative Employment Appeal with
this court on April 6, 1998, invoking the provisions of the Employee Appeal
Ordinance, VIII, M.P.T.C. ch. 1.
Gaming Enterprise moves to dismiss the appeal for the reason that this court
lacks subject matter jurisdiction over appeals by employees who have not
appeared before by a Board of Review and have not received a final decision by
the President/CEO of the Gaming Enterprise.
Most of the plaintiff's arguments address the merits of his contention
that the Gaming Enterprise was arbitrary and capricious in terminating his
employment. To the extent that he
addresses the jurisdictional issue, the plaintiff asserts that the Gaming
Enterprise cannot take advantage of a lack of a record of proceedings before a
Board of Review it refused to convene, and the lack of a decision by the
President/CEO that he refused to make. The
Gaming Enterprise responds that the Mashantucket Pequot Tribal Council, by
approving an amended policy which limits the types of terminations which can
be considered by a Board of Review, has limited this court's jurisdiction to a
review of only those suspensions or terminations which are the proper subject
of a hearing before a Board of Review under the amended policy.
STANDARD OF REVIEW:
motion to dismiss is the proper procedural vehicle for contesting the subject
matter jurisdiction of the court. "Rule
12(b) of the Mashantucket Pequot Rules of Civil Procedure sets forth several
defenses which may be made initially by motion, including lack of subject
matter jurisdiction. M.R.C.P.
12(b)(1). Mashantucket Rule 12(b) is identical to Rule 12(b) of the Federal
Rules of Civil Procedure. 'For
this reason, decisions of the federal courts are a useful source of guidance.'
Mamiye v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 141,
142 (1997); DeLorge v. Mashantucket Pequot Gaming Enterprise, et al,
(July 23, 1997)." Chamberlin
v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 227 (1997).
deciding a motion to dismiss under Rule 12(b)(1), the court construes the
complaint broadly and liberally, Romanella v. Hayward, 993 F. Supp.
163, 164-165 (D. Conn.1996), aff'd, 114 F.3d 15 (2nd Cir. 1997).
When a court's subject matter jurisdiction is challenged, the burden of
establishing subject matter jurisdiction rests on the party asserting
jurisdiction. Id. at 165.
The court accepts all uncontroverted well-pleaded factual allegations
as true, and views all reasonable inferences in plaintiff's favor.
Scheuer v. Rhodes, 416 U.S. 232 (1974), Aversa v. United
States, 99 F.3d 1200 (1st Cir. 1996); Hirsch v. Arthur Anderson &
Co., 72 F.3d 1085, 1088 (2nd Cir. 1995). DeLorge v. Mashantucket Pequot
Gaming Enterprise, et al, supra, at 3." Chamberlin, supra
at 227-228 (quotation marks omitted).
the jurisdiction of the court is called into question, the court must fully
resolve the issue before proceeding further with the case.
If the face of the record indicates that the court is without
jurisdiction, the complaint must be dismissed."
Jakubowski v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 223
(1997) (citations omitted).
SUBJECT MATTER JURISDICTION:
points which the plaintiff would raise in support of his contention that the
court has jurisdiction over this action are raised and discussed in Miller
v. Mashantucket Pequot Gaming Enterprise, MPTC-EA-98-112, decided
contemporaneously with this action. For
the reasons set forth in Miller, the court concludes that it does not
have jurisdiction over the plaintiff's action and that the motion to dismiss
must be granted. For ease of
reference, those reasons are restated here.
the Board of Review policy in effect prior to November 1, 1996, part-time
employees who were terminated were entitled to a hearing before a Board of
Review. The previously existing
policy was amended, however, by action of the Mashantucket Pequot Tribal
Council on February 18, 1997. "The
governing body of the Mashantucket Pequot Tribe is the Mashantucket Pequot
Tribal Council.” Constitution, Article VI, '1.
The ultimate control of all activities of the Tribe, including
personnel decisions, resides in the Tribal Council.
Shea v. Mashantucket Pequot Gaming Enterprise, 1 MPR 35, 37
(1997). The Tribal Council
established the Gaming Enterprise to conduct the gaming operations of the
Tribe, providing that the "personnel policies and disciplinary procedures
utilized shall be subject to the approval of the Tribal Council." M.P.T.C.
Res. 022591-02, '4(b). In
accordance with this requirement, the amended Board of Review policy was
approved by the Tribal Council on February 18, 1992.
M.P.T.C. Res. 020497-02 of 06."
Sheeley v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 150
(1997). The Tribal Council's
resolution provided that the effective date of the amended policy is November
1, 1996. Id. at 151.
the amended policy, part-time employees who are terminated cannot obtain a
hearing before a Board of Review or appeal to the Tribal Court.
"The Board of Review policy including any rights to appeal to
the Mashantucket Pequot Tribal Court does not apply to the following
groups or categories of employees: . . . Casual and part-time employees . . .
." Board of Review Policy
effective 11-1-96, page 2, note 1. (emphasis added).
The plaintiff asserts that this amended policy deprives him of his
right to due process and equal protection under the Indian Civil Rights Act
(the "ICRA"), 25 U.S.C. 1302(8), which provides that "No Indian
tribe in exercising powers of self-government shall . . . (8) deny to any
person within its jurisdiction the equal protection of its laws or deprive any
person of liberty or property without due process of law."
Indian Civil Rights Act, 25 U.S.C. 1302(8).
due process clause of the ICRA applies to all tribal proceedings: criminal,
civil and administrative." Johnson v. Mashantucket Pequot Gaming
Enterprise, 2 Mash 273, 276 (1998), quoting Dugan v. Mashantucket
Pequot Gaming Enterprise, 1 Mash 104, 105 (1995).
The ICRA is to be interpreted in a manner "consistent with Tribal
practice or custom". I M.P.T.L. ch. 3, '10(b).
Here, there is no distinctively Mashantucket Pequot tribal custom or
tradition or cultural norm which is offered in support of the amendment to the
Board of Review policy. In the
absence of a clearly demonstrated tribal custom or tradition, and because many
provisions of the ICRA, including the due process clause, are in language
nearly identical to the Bill of Rights and state and federal constitutions,
the court will apply general federal and state principles of due process. Johnson
v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 273, 276-277 (1998).
ordinances and policies of the Mashantucket Pequot Tribe "manifestly
accord job security protections to employees of the Gaming Enterprise. Once
the property interest in employment is conferred, the employee cannot be
deprived of that interest without due process safeguards."
Johnson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 15, 19
(1996). The Supreme Court
"consistently has held that some form of hearing is required before an
individual is finally deprived of a property interest. . .
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner".
Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 902
(1976). The Supreme Court has
"described 'the root requirement' of the Due Process Clause as being
'that an individual be given an opportunity for a hearing before he is
deprived of any significant property interest.'"
Cleveland Board of Education v. Loudermill, 470 U.S. 539, 542,
105 S.Ct. 1487, 1493 (1995) (emphasis in original).
"This principle requires some kind of hearing prior to the
discharge of an employee who has a constitutionally protected property
interest in his employment." Bartlett v. Krause, 209 Conn. 352,
372 (1988) (quotation marks omitted), citing Loudermill, supra
amended Board of Review policy does not provide the plaintiff with any kind of
hearing or opportunity to be heard regarding the circumstances of the
termination of his part-time employment, either before or after his employment
is terminated. The plaintiff must
be accorded "a meaningful opportunity to be heard".
Johnson v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 273,
279 (1998), quoting Tedesco v. Stamford, 222 Conn. 233, 242 (1992).
If this court could consider the plaintiff's claim under a grant of
original and general jurisdiction, or if the plaintiff had brought an action
pursuant to legislation authorizing this court to consider the plaintiff's due
process claim, this court would find that the plaintiff was not afforded the
"root requirement" of an opportunity to be heard at a meaningful
time before the termination of his protected property interest in continued
employment, in violation of his due process rights under the Indian Civil
Rights Act. For the reasons
discussed infra, however, this court does not have jurisdiction to
consider this claim in an action brought pursuant to the provisions of the
Employee Appeal Ordinance.
Mashantucket Pequot Court of Appeals has held that this court lacks "the
power to consider [the plaintiff's] case because of the absence of an
administrative record, a jurisdictional prerequisite under the [Employee
Appeal] Ordinance, [VIII M.P.T.L. ch. 1, '3(a).]."
Jeffs v. Mashantucket Pequot Gaming Enterprise, 1 MPR 32, 33
(1997). "A necessary
precondition to [an appeal under the Employee Appeal Ordinance] is a decision
by a Board of Review convened in accordance with the policies and procedures
of the Gaming Enterprise." Kendall
v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 57 (1995).
This court has no jurisdiction over such an appeal unless it is taken
from a "final decision," which is defined in the Employee Appeal
Ordinance as "a determination by the President/CEO of the Gaming
Enterprise that the decision of the Board of Review, as defined by the
Policies and Procedures of the Gaming Enterprise, is upheld in whole or in
part." VIII M.P.T.L. ch. 1,
'1(d). "[T]he proceedings
before a Board of Review are an essential part of the record on appeal."
Kendall, supra at 57.
plaintiff points to several cases where the court considered challenges to
Board of Review policies and practices and found them to be in violation of
the Indian Civil Rights Act and due process principles, such as Dugan v.
Mashantucket Pequot Gaming Enterprise, 1 Mash. 104 (1995); Wood v.
Mashantucket Pequot Gaming Enterprise, 1 Mash 214 (1996); Johnson v.
Mashantucket Pequot Gaming Enterprise, 1 Mash 115 (1996)("Johnson
I") aff'd 1 MPR 15 (1996) ("Johnson II"), and Johnson
v. Mashantucket Pequot Gaming Enterprise, 2 Mash 273 (1998) ("Johnson
III"). In each of those
cases, however, the plaintiffs appealed to this court from a final decision of
the President/CEO of the Gaming Enterprise, and the court had jurisdiction to
consider those appeals under the provisions of the Employee Appeal Ordinance.
plaintiff also cites a line of cases, such Reno v. Catholic Social
Services, Inc., 509, U.S. 43, 113 S.Ct. 2485 (1993); McNary v. Haitian
Refuge Center, 498 U.S. 479; 111 S.Ct. 888 (1991) and Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133 (1986), holding
that there is a strong presumption of judicial review of administrative
actions and that the unavailability of an administrative record or a failure
to exhaust administrative remedies does not deprive a court of jurisdiction.
The plaintiff contends that this principle, when read in conjunction
with the holdings in Johnson I and III that "the right to due
process is conferred not by legislative grace but by [ICRA] guarantee," Johnson
III at 277, citing Johnson I at 119, requires that this court
consider the plaintiff's constitutional claim despite the absence of an
administrative record and a final decision of the President/CEO.
The Reno, McNary and Bowen cases, however, were
actions filed in United States District Courts, which have original
jurisdiction to consider and decide these types of cases.
Similarly, the Johnson I and Johnson III courts had
jurisdiction to consider the employee's due process claims, which were raised
on appeals from a final decision of the President/CEO based on an
administrative record available to the court.
In this action, the court does not have general and original
jurisdiction, nor does it have the jurisdictional foundation of an
administrative record and final decision of the President/CEO, which is
required for appeals brought under the Employee Appeal Ordinance.
remaining doubt regarding the court's lack of jurisdiction to consider appeals
by part-time employees of the Gaming Enterprise whose employment is terminated
is resolved by the explicit and unambiguous language in the amended policy,
approved by the Tribal Council that the "Board of Review Policy including
any rights to appeal to the Mashantucket Pequot Tribal Court does not apply
to" casual or part-time employees terminated for violations of
attendance standards. Amended Board of Review Policy, p. 2 of 4, footnote 1
to courts from [administrative agencies] exist only under statutory authority
. . . . Appellate jurisdiction is
derived from the statutory provisions by which it is created, and can be
acquired and exercised only in the manner prescribed."
Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn.
257, 263 (1998) (citations and quotation marks omitted). This court's
jurisdiction over appeals brought under the Employee Appeal Ordinance "is
limited to a review of the record before the Board of Review and the
President/CEO after the issuance of the final decision." Jenkins v.
Mashantucket Pequot Gaming Enterprise, 2 Mash 230, 232 (1997).
In this matter, there is no record for the Court to consider on appeal.
There is no decision of a Board of Review, nor is there a final
decision of the President/CEO. "The
narrow waiver of sovereign immunity effected by the [Employee Appeal
Ordinance] supplies this court with only the power to review final decisions
of the President/CEO." Healy
v. Mashantucket Pequot Gaming Enterprise, 2 Mash 240, 241 (1997).
court is reluctant to leave the plaintiff's due process claims unresolved, but
is constrained to find that it does not have jurisdiction to consider those
claims in the circumstances of this case.
motion to dismiss is granted.
Jones, Pro Se Plaintiff
R. Godley, Esq., for Defendant
P. Carey, Esq., for Defendant
S. Anderson, Esq., for Defendant