Mille Lacs Band of Objibwe et al v. County of Mille Lacs, Minnesota et al
Filing
290
ORDER STAYING CASE (Written Opinion). Signed by Judge Susan Richard Nelson on 4/14/2021. (avt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mille Lacs Band of Ojibwe, a federally
recognized Indian Tribe; Sara Rice, in her
official capacity as the Mille Lacs Band
Chief of Police; and Derrick Naumann, in
his official capacity as Sergeant of the
Mille Lacs Police Department,
Case No. 17-cv-05155 (SRN/LIB)
ORDER
Plaintiffs,
v.
County of Mille Lacs, Minnesota; Joseph
Walsh, individually and in his official
capacity as County Attorney for Mille
Lacs County; and Donald J. Lorge,
individually and in his official capacity as
Sheriff of Mille Lacs County,
Defendants.
Anna Brady, Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz
Chestnut, 2101 Fourth Avenue, Suite 1230, Seattle, WA 98121; and Arielle Wagner,
Charles N. Nauen, and David J. Zoll, Lockridge Grindal Nauen P.L.L.P., 100
Washington Avenue South, Suite 2200, Minneapolis, MN 55401, for Plaintiffs.
Brett D. Kelley, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530,
Minneapolis, MN 55415; Courtney E. Carter and Randy V. Thompson, Nolan
Thompson Leighton & Tataryn PLC, 1011 First Street South, Suite 410, Hopkins, MN
55343; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP,
80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant County of
Mille Lacs, Minnesota.
Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh.
Brett D. Kelley, Douglas A. Kelley, Stacy Lynn Bettison, and Steven E. Wolter,
Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN
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55415; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP,
80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Donald J.
Lorge.
SUSAN RICHARD NELSON, United States District Judge
In their Motion for Partial Summary Judgment [Doc. No. 223], Plaintiffs alerted the
Court to a potential jurisdictional defect arising from Defendant Joseph Walsh and Donald
Lorge’s Notice of Appeal [Doc. No. 218]. Plaintiffs assert that Walsh and Lorge’s
interlocutory appeal, taken from this Court’s Order [Doc. No. 217] denying their Motion
for Summary Judgment on certain immunity defenses, divests this Court of jurisdiction to
consider the pending summary judgment cross-motions regarding cession of the Mille Lacs
Reservation. The Court heard argument on this jurisdictional issue at the March 15, 2021
motion hearing, and ordered supplemental briefing from the parties. (Order [Doc. No.
275].) Having fully considered the parties’ arguments and submissions herein, and for the
reasons that follow, the Court finds that it lacks subject-matter jurisdiction over the pending
cross-motions, and will therefore stay this matter until the resolution of Walsh and Lorge’s
appeal.
I.
BACKGROUND
Plaintiffs are the Mille Lacs Band of Ojibwe, Mille Lacs Band Chief of Police Sara
Rice, and Sergeant Derrick Naumann (collectively, “the Band”). The Band brought suit
against the County of Mille Lacs, Mille Lacs County Attorney Joseph Walsh, and Sheriff
Donald Lorge (collectively, “the County”) seeking declaratory and injunctive relief
regarding the Band’s law enforcement authority within the Mille Lacs Reservation. (See
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generally Compl. [Doc. No. 1].) An integral part of the parties’ dispute concerns whether
the Mille Lacs Reservation was disestablished by various treaties and statutes in the late
1800s.
On December 21, 2020, the Court ruled on several early summary judgment motions
filed by the parties. (See Mem. Op. & Order [Doc. No. 217].) In the December 21 Order,
the Court found that it has federal-question jurisdiction over this matter, and that the Band’s
claims are justiciable. (Id. at 25-35.) The Court also found that Walsh and Lorge are not
entitled to immunity from suit under the Tenth or Eleventh Amendment, that absolute
prosecutorial immunity does not apply to the Band’s claims, and that Younger abstention
and federalism and comity principles do not bar the Band’s suit against Walsh and Lorge.
(Id. at 36-46.) Walsh and Lorge appealed the Court’s December 21 Order to the Eighth
Circuit Court of Appeals under the collateral order doctrine. (See Notice of Appeal [Doc.
No. 218].)
Subsequently, the parties filed cross-motions for summary judgment regarding
whether the Mille Lacs Reservation has been disestablished or diminished. In its motion,
the Band raised its concern that Walsh and Lorge’s Notice of Appeal divests this Court of
jurisdiction to rule on the disestablishment issue. (Mot. for Partial Summ. J. [Doc. No.
223], at 1 n.1.) The Court heard argument on the jurisdictional question, invited
supplemental briefing, and now must determine whether it retains subject-matter
jurisdiction over the pending summary judgment motions despite Walsh and Lorge’s
appeal.
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II.
DISCUSSION
As a general rule, “[a] federal district court and a federal court of appeals should not
attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is
an event of jurisdictional significance—it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case involved in the appeal.”
United States v. Ledbetter, 882 F.2d 1345, 1347 (8th Cir. 1989) (quoting Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). Once a notice of
appeal has been filed, “the federal district court cannot take any action that would ‘alter the
status of the case as it rests before the Court of Appeals.’” Knutson v. AG Processing, Inc.,
302 F. Supp. 2d 1023, 1030 (N.D. Iowa 2004) (quoting Dayton Indep. Sch. Dist. v. U.S.
Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir. 1990)); see generally Allan Ides, The
Authority of a Federal District Court to Proceed After A Notice of Appeal Has Been Filed,
143 F.R.D. 307, 308 (1992) (“Stated broadly, the district court may not take any action that
would ‘alter the status of the case as it rests before the Court of Appeals.’ Thus, once a
notice of appeal has been filed, a district court may not grant leave to amend a complaint,
grant a motion for summary judgment, reconsider a prior disposition of a motion, dismiss
a case pursuant to a stipulation of settlement, enjoin a state court action, materially amend
an opinion or order, vacate a dismissal, and so forth.” (footnotes and citations omitted)).
The Eighth Circuit has explained that this jurisdictional transfer principle serves two
purposes: “First, it promotes judicial economy for it spares a trial court from considering
and ruling on questions that possibly will be mooted by the decision of the court of appeals.
Second, it promotes fairness to the parties who might otherwise have to fight a confusing
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‘two front war’ for no good reason, avoiding possible duplication and confusion by
allocating control between forums.” Ledbetter, 882 F.2d at 1347 (citation omitted).
But the jurisdictional transfer principle is not absolute. Importantly, “the ‘principle
does not divest the district court of all jurisdiction—but rather, only jurisdiction over the
matters appealed.’” Follis v. Minnesota, No. CIV. 08-1348 (JRT/RLE), 2008 WL
5424127, at *3 (D. Minn. Dec. 29, 2008) (adopting report and recommendation) (quoting
Knutson, 302 F. Supp. 2d at 1031) (emphasis added). Thus, “[t]he district court retains
jurisdiction to adjudicate matters collateral, or tangential, to the appeal.” Id. (same).
Compare Harmon v. U.S. Through Farmers Home Admin., 101 F.3d 574, 587 (8th Cir.
1996) (holding that the district court retained jurisdiction to consider an award of attorney’s
fees because the issue of attorney’s fees was not the basis for the appeal, and was not before
the appellate court), with Follis, 2008 WL 5424127 (holding, where the plaintiff appealed
the court’s order denying the plaintiff’s motion for a temporary restraining order and
permanent injunction, that the court lacked jurisdiction to consider the defendant’s motion
to dismiss, which asserted (in part) that the order denying the permanent injunction
rendered the Complaint res judicata).
In the case of interlocutory appeals, an appeal from an interlocutory order under the
collateral order doctrine generally does not wholly deprive the district court of jurisdiction
to proceed in the case—so long as subsequent motions do not threaten to disturb the “status
of the case on appeal,” such as by presenting the same issues involved in the appeal. 1 Where
See W. Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229 (8th Cir. 1986)
(“[T]he pendency of an interlocutory appeal from an order granting or denying a
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the interlocutory appeal is premised on a claim to immunity, however, district courts
generally must stay any ruling on the merits of the case pending resolution of the appeal.
As the Eighth Circuit observed in Johnson v. Hay, “[o]nce a notice of appeal has been filed
in a case in which there has been denial of a summary judgment motion raising the issue
of qualified immunity, the district court should then stay its hand. Jurisdiction has been
vested in the court of appeals and the district court should not act further.” 931 F.2d 456,
459 n.2 (8th Cir. 1991). Consistent with that instruction, district courts often stay
proceedings once a defendant has appealed the district court’s denial of a claim to
immunity—even where the case involves co-defendants without a claim to immunity. 2
preliminary injunction does not wholly divest the District Court of jurisdiction over the
entire case.”) (dicta); Janousek v. Doyle, 313 F.2d 916, 920 (8th Cir. 1963)
(“[W]here . . . the appeal is from an interlocutory order denying a motion for preliminary
injunction, . . . the filing of the notice of appeal from such an order does not ipso facto
divest the district court of jurisdiction to proceed with the cause with respect to any matter
not involved in the appeal, or operate to automatically stay other proceedings in the cause
pending the appeal.”); see also Chambers v. Pennycook, 641 F.3d 898, 903 (8th Cir. 2011)
(holding that the district court retained jurisdiction to consider a motion for summary
judgment on the merits notwithstanding a pending interlocutory appeal from a motion
denying appointment of counsel); Liddell by Liddell v. Bd. of Educ. of City of St. Louis, 73
F.3d 819, 823 (8th Cir. 1996) (reasoning that the defendant’s appeal of the denial of
attorneys’ fees under 42 U.S.C. § 1988 divested the district court of jurisdiction to consider
a second motion for attorneys’ fees under a different theory); Minnesota Voters All. v. Walz,
No. 20-CV-1688 (PJS/ECW), 2020 WL 6042398, at *1 (D. Minn. Oct. 13, 2020) (holding,
where the plaintiff appealed the denial of a preliminary injunction and the defendant
subsequently moved to dismiss, that the court lacked jurisdiction to consider the motion to
dismiss because it raised the same arguments that the defendant raised in opposing the
injunction; and that, even if jurisdiction existed, a stay pending appeal was warranted as an
exercise of the court’s discretion).
See, e.g., Mallak v. Aitkin Cty., No. 13-CV-2119 (DWF/LIB), 2015 WL 13187116,
at *6 (D. Minn. Oct. 14, 2015) (finding, where municipal employee defendants had
appealed the denial of summary judgment based on qualified immunity, that a stay of
discovery with respect to the municipal defendant was appropriate); In re Nat’l Arb. F.
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The justification for this practice is two-fold. First, the legal and factual issues raised
by a claim to immunity may often overlap with the merits of a case. 3 Where the immunity
and merits issues are intertwined, any determination of the merits risks altering the status
of the case on appeal, and the jurisdictional transfer principle therefore bars the district
court from making such determinations. Second, a defendant’s interlocutory appeal of an
order denying an immunity is typically permitted because the immunity embodies an
immunity from suit, rather than simply an immunity from damages. See Mitchell v.
Forsyth, 472 U.S. 511, 525 (1985) (“[T]he denial of a substantial claim of absolute
immunity is an order appealable before final judgment, for the essence of absolute
immunity is its possessor’s entitlement not to have to answer for his conduct in a civil
damages action.”). Thus, where a defendant appeals an interlocutory order denying an
Trade Practices Litig., No. CIV09-1939 PAM/JSM, 2010 WL 1485959, at *1 (D. Minn.
Apr. 12, 2010) (“There is also little question that such an appeal [of a motion to dismiss
premised on qualified immunity] often requires a stay of the underlying litigation. Even
without a stay, of course, this Court may not make any determinations regarding the issues
on appeal.” (citations omitted)); Root v. Liberty Emergency Physicians, Inc., 68 F. Supp.
2d 1086, 1089 (W.D. Mo. 1999) (noting that “[m]any district courts, faced with a similar
appeal and motion to stay after having denied immunity [on a motion to dismiss], determine
that a stay of all proceedings is required pending the outcome of appeal,” and staying
proceedings pending the outcome of a defendant’s appeal on the issue of sovereign
immunity—even though other defendants in the case did not raise an immunity defense).
By way of illustration, consider a suit brought against a police officer for an
unconstitutional use of force under 42 U.S.C. § 1983. The elements of the police officer’s
claim to qualified immunity overlap with the merits of the plaintiff’s claims: The plaintiff
can succeed on the merits only if the officer violated her constitutional rights; and the
plaintiff can overcome qualified immunity only if the court finds both that the officer
violated her constitutional rights, and that those rights were clearly established. See
Atkinson v. City of Mountain View, 709 F.3d 1201, 1207, 1211 (8th Cir. 2013) (succinctly
stating the tests for a § 1983 claim and qualified immunity).
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immunity from suit, for the district court to proceed to the merits of the case before
resolution of the appeal would destroy the defendant’s right to be free of the burdens of
discovery and trial. See 16A Fed. Prac. & Proc. Juris. § 3949.1 (Wright & Miller, 5th ed.)
(“But if further district court proceedings would violate the very right being asserted in the
appeal taken under the collateral order doctrine—as is the case with claims of qualified
immunity or double jeopardy—then the pendency of the appeal does oust the district court
of authority to proceed . . . .”).
The County argues that “[w]here an interlocutory appeal is taken on the grounds of
immunity, a district court is not required to issue a stay.” (Mem. in Response [Doc. No.
288], at 9.) But the cases the County cites are inapposite. The cases involve the question
whether to stay an order while an appeal of that order is pending—the cases do not address
whether the district court retains jurisdiction to issue further orders, following an
interlocutory appeal on an immunity issue, under the jurisdictional transfer principle. See
Comm. on the Judiciary, U.S. House of Representatives v. Miers, 575 F. Supp. 2d 201
(D.D.C. 2008) (analyzing whether to stay an order requiring the defendants to respond to
a Congressional subpoena, where the defendants appealed that order on immunity
grounds); Miccosukee Tribe of Indians of Fla. v. United States, No. 10-23507-CV, 2011
WL 5508802 (S.D. Fla. Nov. 8, 2011) (analyzing whether to stay an order requiring the
Miccosukee Tribe to produce documents to the Internal Revenue Service, in light of the
Tribe’s appeal of that order on sovereign immunity grounds). As explained above, the rule
is to the contrary: a district court is generally without jurisdiction to consider the merits of
a case while a defendant’s interlocutory appeal on an immunity issue remains pending, at
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least where the issues on appeal overlap with the merits or proceeding to the merits would
destroy the very right asserted on appeal.
In this case, for the Court to proceed to consider the reservation disestablishment
question while Walsh and Lorge’s appeal remains pending would violate the jurisdictional
transfer principle. To be sure, the factual and legal issues presented in the pending motions
are largely distinct from those addressed in the Court’s December 21 Order. As the County
rightly notes, a party may immediately appeal the denial of an immunity defense under the
collateral order doctrine in part because that issue is collateral to the merits of the action.
See Mitchell, 472 U.S. at 524–25. In that sense, the pending motions do not involve “those
aspects of the case involved in the appeal.” Ledbetter, 882 F.2d at 1347. However, by
appealing this Court’s ruling on their immunity defenses, Walsh and Lorge have
necessarily brought their challenges to this Court’s subject-matter jurisdiction before the
Court of Appeals. 4 Consequently, to exercise jurisdiction over the pending motions would
violate the very rights asserted in the appeal. And, importantly, any ruling on the pending
motions would be mooted should the Court of Appeals find that this Court lacks subjectmatter jurisdiction over the claims against Walsh and Lorge. Thus, judicial economy—a
core justification for the jurisdictional transfer principle—weighs against considering the
pending motions. See Ledbetter, 882 F.2d at 1347 (explaining that the jurisdictional
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“On every writ
of error or appeal, the first and fundamental question is that of jurisdiction, first, of this
court, and then of the court from which the record comes. This question the court is bound
to ask and answer for itself, even when not otherwise suggested, and without respect to the
relation of the parties to it.” (quotation omitted)).
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transfer principle “promotes judicial economy for it spares a trial court from considering
and ruling on questions that possibly will be mooted by the decision of the court of
appeals”). Because the Court’s jurisdiction is an issue raised on appeal, and the resolution
of Walsh and Lorge’s appeal therefore might moot the Court’s ruling on the
disestablishment question, the Court finds that the pending motions for summary judgment
are not collateral to the appeal. 5 Thus, the jurisdictional transfer principle divests the Court
of jurisdiction over the motions.
Having found that the Notice of Appeal divests this Court of jurisdiction to consider
the pending motions, at least with respect to Walsh and Lorge, the Court must determine
how to proceed. The Band raises the possibility that the Court limit its ruling on the pending
motions to the County, thereby proceeding with respect to the County but not the
defendants involved in the appeal. However, the Band identifies many problems with this
possibility, not least of which is that it is questionable whether the Band has standing to
assert its claims against the County—premised as they are on conduct by Walsh and
Lorge—should the claims against Walsh and Lorge be dismissed on appeal. 6 (See generally
The County points out that only Walsh and Lorge—not the County itself—dispute
this Court’s jurisdiction on appeal. Thus, should Walsh and Lorge prevail, the Court’s
ruling on the disestablishment question would be mooted only as to Walsh and Lorge, and
not the County. But for the reasons discussed in the next paragraph, the Court finds it would
be inappropriate to proceed until the Court’s ability to resolve the disestablishment
question with respect to all defendants is assured.
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The Court here expresses no view on whether, should the Band’s claims against
Walsh and Lorge be dismissed, the Band’s claims against the County would likewise need
to be dismissed. It suffices to note, for purposes of the jurisdictional issue presented, that
the Band’s ability to proceed against the County should Walsh and Lorge prevail on their
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Suppl. Mem. in Supp. of Pls.’ Mot. for Summ. J. [Doc. No. 286], at 21-23.) The Court
agrees with the Band, and like many other courts, finds that it would be improper to proceed
against one defendant while the other defendants’ interlocutory appeal remains pending.
Cf., e.g., Mallak v. Aitkin Cty., No. 13-CV-2119 (DWF/LIB), 2015 WL 13187116, at *6
(D. Minn. Oct. 14, 2015) (staying discovery with respect to a defendant who was not
involved in an interlocutory appeal concerning co-defendants’ immunity defenses); Root
v. Liberty Emergency Physicians, Inc., 68 F. Supp. 2d 1086, 1089 (W.D. Mo. 1999)
(“Many district courts, faced with a similar appeal and motion to stay after having denied
immunity [on a motion to dismiss], determine that a stay of all proceedings is required
pending the outcome of appeal.”).
Accordingly, the Court will stay these proceedings until the Court of Appeals issues
its decision and returns jurisdiction to this Court.
III.
CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that this matter is STAYED pending the resolution of Defendant
Walsh and Lorge’s appeal to the Eighth Circuit Court of Appeals, and the Court shall defer
ruling on the parties’ Cross-Motions for Summary Judgment [Doc. Nos. 223 & 239] until
that time.
IT IS SO ORDERED.
appeal is sufficiently doubtful that the Band itself is uncertain whether it would lack
standing to proceed.
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Dated: April 14, 2021
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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