Michael A. MILLER -vs- MASHANTUCKET PEQUOT GAMING ENTERPRISE

Granting the defendant’s 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.

On 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. ch. 1.

The 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.

A 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).

"When 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).

"Once 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).

Under 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 151.

Under 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).

"The 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).

The 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.

The 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.

The 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.

The 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.

The 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.

Any 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).

"Appeals 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).

The 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.

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