the defendantís motion to dismiss the plaintiff's appeal from termination of
his employment as a craps floor supervisor, the Mashantucket Pequot Tribal Court
holds that it lacks subject matter jurisdiction where there is lacking the
foundation of an administrative record and final decision of the President/CEO.
or about October 8, 1997 the plaintiff's employment as a craps floor supervisor
at the Foxwoods Casino operated by the Mashantucket Pequot Gaming Enterprise
(the "Gaming Enterprise") was terminated for "excessive
absenteeism and tardiness." He requested a hearing before a Board of Review, but did not
receive a hearing. Thereafter he
filed a Notice of Administrative Employment Appeal with this court on December
29, 1997, invoking the provisions of the Employee Appeal Ordinance, VIII M.P.T.L.
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 a Board of Review and have not received a final decision by the
President/CEO of the Gaming Enterprise. The
plaintiff claims 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:
the Board of Review policy in effect prior to November 1, 1996, employees who
were terminated for violations of attendance standards 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
the amended policy, employees who are terminated for violations of attendance
standards 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: . . .Suspensions or
terminations due to . . . (2) violations of the performance standards such as
the Attendance Standards or the Coin Variance Policy . . . ."
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 . . . .
The 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 at 542.
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 employment, for violating the Gaming Enterprise's attendance
standards, 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
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 employees of the Gaming Enterprise whose employment is terminated for
violations of attendance standards 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" employees
terminated for violations of attendance standards. Amended Board of Review
Policy, p. 2 of 4, footnote
1 (emphasis added).
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.
John Strafaci, Esq., for Plaintiff
R. Godley, Esq., for Defendant
P. Carey, Esq., for Defendant
S. Anderson, Esq., for Defendant