EEOC v. Peabody Coal Company, et al
Filing
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ORDER AND OPINION denying without prejudice 196 Motion to Dismiss for Lack of Jurisdiction. See PDF document for content. Signed by Judge John W Sedwick on 3/7/12.(JWS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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EQUAL OPPORTUNITY
EMPLOYMENT COMMISSION
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Plaintiff,
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vs.
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PEABODY WESTERN COAL
COMPANY, et al.,
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Defendants.
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2:01-cv-01050 JWS
ORDER AND OPINION
[Re: Motion at Docket 196]
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I. MOTION PRESENTED
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At docket 196, defendant Navajo Nation (“the Nation”) renews its motion to
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dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency
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of process, failure to state a claim, and failure to exhaust tribal remedies. The motion
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was originally filed at docket 89. Plaintiff Equal Opportunity Employment Commission
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(“the EEOC”) opposes the motion at docket 213. Defendant Peabody Western Coal
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Company (“Peabody”) filed a response in support of the Nation’s motion, at docket 214.
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Supplemental responses were filed by Peabody and the EEOC at dockets 224 and 225.
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The Nation’s reply is at docket 231. Oral argument was requested, but would not assist
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the court.
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II. BACKGROUND
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This lawsuit was filed in 2001 and arises out of lease provisions requiring that
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Peabody, a coal mining company which leases land from the Nation, provide
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employment preference to Navajo job applicants over other applicants. Comprehensive
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background is provided in EEOC v. Peabody Coal Co. (“Peabody I”),1 EEOC v.
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Peabody Western Coal Co. (“Peabody II”),2 and Peabody v. Western Coal Co.
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(“Peabody III”).3
III. STANDARD OF REVIEW
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A. Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an
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action for lack of subject matter jurisdiction. In order to survive a defendant’s motion to
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dismiss, the plaintiff has the burden of proving jurisdiction.4 Where the defendant brings
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a facial attack on the subject matter of the district court, the court assumes the factual
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allegations in the plaintiff’s complaint are true and draws all reasonable inferences in the
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plaintiff’s favor.5 The court does not, however, accept the truth of legal conclusions cast
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in the form of factual allegations.6
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B. Personal Jurisdiction
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“Where a defendant moves to dismiss a complaint [pursuant to Federal Rule of
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Civil Procedure 12(b)(2),] for lack of personal jurisdiction, the plaintiff bears the burden
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214 F.R.D. 549 (D. Ariz. 2002).
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400 F.3d 774 (9th Cir. 2005).
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610 F.3d 1070 (9th Cir. 2010).
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Tosco v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2000).
Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
Id.
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of establishing that a court has personal jurisdiction over a defendant.”7 Where the
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motion is based only upon written materials, rather than an evidentiary hearing, the
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plaintiff is required only to make a prima facie showing of personal jurisdiction.8
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Uncontroverted allegations in the complaint are taken as true, and conflicts between
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parties over statements contained in affidavits are resolved in favor of the plaintiff.9
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C. Failure to State a Claim
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A motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil
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Procedure 12(b)(6), tests the legal sufficiency of a plaintiff’s claims. In reviewing such a
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motion, “[a]ll allegations of material fact in the complaint are taken as true and
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construed in the light most favorable to the nonmoving party.”10 Dismissal for failure to
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state a claim can be based on either “the lack of a cognizable legal theory or the
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absence of sufficient facts alleged under a cognizable legal theory.”11 “Conclusory
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allegations of law . . . are insufficient to defeat a motion to dismiss.”12 To avoid
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dismissal, a plaintiff must plead facts sufficient to “state a claim to relief that is plausible
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on its face.”13 “A claim has facial plausibility when the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.”14 “The plausibility standard is not akin to a ‘probability
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requirement’ but it asks for more than a sheer possibility that a defendant has acted
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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
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Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002).
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Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir. 2009).
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Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
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Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
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Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001).
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Id.
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unlawfully.”15 “Where a complaint pleads facts that are ‘merely consistent’ with a
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defendant’s liability, it ‘stops short of the line between possibility and plausibility of
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entitlement to relief.’”16 “In sum, for a complaint to survive a motion to dismiss, the non-
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conclusory ‘factual content,’ and reasonable inferences from that content, must be
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plausibly suggestive of a claim entitling the plaintiff to relief.”17
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IV. DISCUSSION
Although the Nation re-filed the entirety of its motion to dismiss, it recognized that
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Peabody III rejected several of the motion’s bases.18 The court will not revisit the
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Nation’s arguments that its sovereign immunity precludes its joinder under Rule 19 or
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that claims against it must be dismissed for inability to join the Secretary of the Interior.
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Those arguments have been rejected by the Court of Appeals.19
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A. Title VII and the Rehabilitation Act
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The Nation argues that it is exempt from application of Title VII. Section
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2000e(b) of Title 42 excludes “Indian tribe[s]” from the definition of “employer.”20
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However, the EEOC is seeking injunctive relief against Peabody, not the Nation.21 The
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Nation was joined to ensure “that both Peabody and the Nation are bound to any
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judgment upholding or striking down the challenged lease provision.”22 Consequently,
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whether the Nation is exempt from Title VII does not bear on the present motion.
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Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
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Id. (quoting Twombly, 550 U.S. at 557).
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Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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Doc. 196 at 2.
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See Peabody III, 610 F.3d at 1080, 1087.
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42 U.S.C. § 2000e(b)(1).
Peabody III, 610 F.3d at 1080.
Peabody II, 400 F.3d at 783.
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The Nation renews its contention that the Navajo-Hopi Rehabilitation Act of 1950
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authorizes tribe-specific preferences.23 However, the Ninth Circuit was clear, when
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vacating the court’s previous holding on that issue, that reconsideration should not
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occur until the Secretary of the Interior has presented arguments “on the legality of the
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[contested] preferences”.24 The Secretary has not yet presented any arguments on the
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legality of tribe-specific preferences, and the court therefore declines to consider the
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issue at this juncture.25
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B. Personal Jurisdiction and Service of Process
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The Nation argues that the court lacks personal jurisdiction because it was not
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served in conformity with Federal Rule of Civil Procedure 4. The Nation relies on
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Prewitt Enter., Inc. v. Organization of Petroleum Exporting Countries,26 in which the
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Eleventh Circuit held that the Organization of Petroleum Exporting Countries (“OPEC”)
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could not be served in accordance with Federal Rule of Civil Procedure 4(h)(2) and 4(f),
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primarily because “Austrian law clearly provide[d] protection to OPEC as an
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international organization from all methods of service of process without its consent”
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and because OPEC did not consent. Prewitt does not apply here because the Nation is
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not an unincorporated association in a foreign country.
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The EEOC maintains that it properly served the Nation under Federal Rule of
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Civil Procedure 4(j), which applies to foreign, state, and local governments. Rule 4(j)(2)
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provided, at the time that service was attempted, that “[s]ervice upon a state, municipal
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organization, or other governmental organization subject to suit shall be effected by
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delivering a copy of the summons and of the complaint to its chief executive officer or by
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25 U.S.C. §§ 631–638.
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Peabody III, 610 F.3d at 1087.
See doc. 227.
353 F.3d 916, 928 (11th Cir. 2003).
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serving the summons and complaint in the manner prescribed by the law of that state.”27
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The EEOC mailed the summons and complaint to the Nation’s President and Attorney
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General twice, in accordance with Navajo Nation Code, Title I, § 555(A) and (C). By
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doing so, the EEOC effected service under Federal Rule of Civil Procedure 4(j)(2)(A)
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and (B).
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Even if Rule 4(j) did not apply–and the Nation were properly considered an
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association–the court concludes that service would have been effective under Rule 4(h).
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C. Failure to State a Claim and Lack of Capacity
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The Nation argues that the complaint must be dismissed because it fails to state
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a claim against the Nation. This argument is foreclosed by Peabody II and Peabody III.
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In Peabody II, the Ninth Circuit stated that “where the EEOC asserts a cause of action
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against Peabody and seeks no affirmative relief against the Nation, joinder of the Nation
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under Rule 19 is not prevented by the fact that the EEOC cannot state a cause of action
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against it.”28 In Peabody III, the Ninth Circuit concluded that “EEOC is not seeking any
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injunctive relief against the Nation. The Nation is ‘bound’ by the injunction only in the
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sense that it is res judicata as to the Nation, not in the sense that the injunction
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affirmatively requires the Nation to do something.”29 Although framed in the context of
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joinder, the Ninth Circuit’s conclusions would not make any sense if the EEOC’s failure
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to seek relief from the Nation compelled dismissal of the complaint.
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Contrary to its assertions that it is not a government or governmental agency for
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purposes of service of process, the Nation argues that the EEOC was required to refer
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Fed. R. Civ. P. 4(j)(2). The rule was amended in 2007 to reduce the “risk that th[e] rule
might be read to govern service on a federal agency, or other entities not created by state law.”
Id. advisory committee’s note.
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400 F.3d at 778.
610 F.3d at 1080.
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this case to the Attorney General of the United States.30 Similarly, the Nation maintains
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that the EEOC has not complied with the statutory conditions on a suit under Title
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VII–specifically, that the EEOC “made no attempt at conciliation with the Navajo
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Nation.”31 The problem with the Nation’s arguments is that the EEOC is not alleging
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that the Nation has violated Title VII.32 The Nation was joined to insure complete and
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binding relief with respect to Peabody, so there is no basis for conciliation between it
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and the EEOC.
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D. Failure to Exhaust Tribal Remedies
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The Nation also argues that the court should decline to exercise its jurisdiction in
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this case because the EEOC did not first file suit in a tribal court and exhaust tribal
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remedies available to it there. Tribal exhaustion is prudential, not jurisdictional.33 It is a
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matter of comity that arises primarily in context of tribal court jurisdiction.34 Tribal court
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jurisdiction is not at issue in this case–even assuming that the appropriate tribal court
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has jurisdiction to hear suits alleging violations of Title VII, disposition of this suit in a
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federal forum in the absence of a tribal court determination will not undermine
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Congress’ policy of supporting tribal self-government.
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See 42 U.S.C. § 2000e-5(f)(1) (“In the case of a respondent which is a government,
governmental agency, or political subdivision, if the Commission has been unable to secure
from the respondent a conciliation agreement acceptable to the Commission, the Commission
shall take no further action and shall refer the case to the Attorney General.”).
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Doc. 89 at 42.
See 42 U.S.C. § 2000e-5(b).
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El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 483–84 (1999); Sharber v. Spirit
Mountain Gaming, Inc., 343 F.3d 974, 975–76 (9th Cir. 2003) (per curiam).
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See Sharber, 343 F.3d at 975.
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V. CONCLUSION
For the reasons above, the Nation’s motion at docket 196 is DENIED without
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prejudice to renewal of its arguments on the merits of the tribal preferences at issue in
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connection with the Secretary’s explication of the preferences.
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DATED this 7th day of March 2012.
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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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