The Chippewa Cree Tribe v. Usdoi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE CHIPPEWA CREE TRIBE OF THE No. 15-71772

ROCKY BOY’S RESERVATION,

MONTANA,

Petitioner, OPINION

v.

U.S. DEPARTMENT OF THE INTERIOR;

RYAN K. ZINKE, in his official

capacity as Secretary of the Interior;

KEN ST. MARKS,

Respondents.

On Petition for Review of an Order of the

Department of the Interior

Argued and Submitted March 12, 2018

San Francisco, California

Filed August 21, 2018

Before: Paul J. Watford and Michelle T. Friedland, Circuit

Judges, and Gary Feinerman, * District Judge.

Opinion by Judge Friedland

*

The Honorable Gary Feinerman, United States District Judge for

the Northern District of Illinois, sitting by designation.

2 CHIPPEWA CREE TRIBE V. USDOI

SUMMARY **

Tribal Issues / Whistleblower

The panel denied a petition for review by the Chippewa

Cree Tribe challenging a decision of the U.S. Department of

the Interior that ordered the Tribe to provide relief to Ken St.

Marks, who was removed from the Tribe’s governing body

– the Business Committee – in retaliation for his

whistleblowing.

St. Marks informed the Department of the Interior that

members of the Business Committee were misusing federal

stimulus funds awarded to the Tribe by the Department

pursuant to the American Recovery and Reinvestment Act.

The Act contains robust whistleblower protections.

The panel rejected the Tribe’s challenges to the

Department of Interior’s decision. First, the panel held that

St. Marks was an “employee” and eligible for whistleblower

protection under the Act because he provided services on

behalf of his employer, the Tribe. Second, the panel held

that the Department’s order did not infringe on the Tribe’s

sovereignty and powers of self-governance, and moreover,

the Tribe voluntarily agreed to federal oversight when it

accepted the stimulus funds. Third, the panel held that the

Tribe did not have a due process right to a hearing with

cross-examination before the Department reached its

conclusion where the Tribe consented to the procedures

outlined in the Act, which do not include a hearing. The

panel noted that the Department did commit a procedural

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CHIPPEWA CREE TRIBE V. USDOI 3

error where the Tribe did not have access to the Inspector

General’s report until the Department issued its preliminary

decision, but this was harmless error. Finally, the panel held

that the Department did not err in finding that the removal of

St. Marks was retaliatory.

The panel held that the Tribe could not raise for the first

time on appeal its argument that the Department incorrectly

calculated St. Marks’s monetary award.

The panel addressed St. Marks’s petition for review in a

concurrently filed memorandum disposition.

COUNSEL

Richard J. Zack (argued) and Jay A. Dubow, Pepper

Hamilton LLP, Philadelphia, Pennsylvania, for Petitioner-

Intervenor.

Jeffrey S. Rasmussen (argued), Fredericks Peebles &

Morgan LLP, Louisville, Colorado, for Respondent-

Petitioner.

Jaynie Lilley (argued) and Marleigh D. Dover, Appellate

Staff; Chad M. Readler, Acting Assistant Attorney General;

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondents.

4 CHIPPEWA CREE TRIBE V. USDOI

OPINION

FRIEDLAND, Circuit Judge:

Ken St. Marks, a member of the Chippewa Cree Tribe

(“Tribe”), informed the Department of the Interior

(“Department”) that he believed members of the Tribe’s

governing body, known as the Business Committee

(“Committee”), were misusing federal stimulus funds.

Members of the Tribe subsequently elected St. Marks

Chairman of the Committee, a position he held for five

months before being removed by the other members of the

Committee. St. Marks alleged that the Committee took this

action in retaliation for his whistleblowing. After an

investigation, the Department agreed and ordered the Tribe

to provide relief, including back pay, to St. Marks. The

Tribe now petitions for review, raising procedural and

substantive challenges to the Department’s decision. We

deny the petition. 1

I.

The stimulus funds at issue here were awarded to the

Tribe by the Department pursuant to the American Recovery

and Reinvestment Act (“ARRA” or “the Act”). Congress

passed ARRA to mitigate the impact of the 2008 recession,

in part by rapidly funding a variety of state, local, and tribal

projects. See Pub. L. No. 111-5, § 3, 123 Stat. 115, 115–16

(2009). To safeguard these funds, Congress enacted robust

whistleblower protections for employees of any non-federal

entity receiving funds under the Act. ARRA § 1553(a),

1

St. Marks also petitioned for review of the Department’s order. We

address his petition in a concurrently filed memorandum disposition.

CHIPPEWA CREE TRIBE V. USDOI 5

123 Stat. at 297–302. 2 As relevant here, the Act provides

that an employer may not discharge an employee in

retaliation for the disclosure of “information that the

employee reasonably believes is evidence of” the “gross

mismanagement of an agency contract or grant relating to

covered funds.” § 1553(a)(1), 123 Stat. at 297.

When an employee files a whistleblower complaint, the

office of the inspector general (“IG”) for the agency

awarding the funds has 180 days to investigate the complaint

and submit a report of its findings “to the person, the

person’s employer, [and] the head of the appropriate

agency.” § 1553(b)(1)–(2), 123 Stat. at 297–98. After the

agency receives the IG’s report, it must determine whether

the complainant has been the victim of a reprisal prohibited

by ARRA’s whistleblower protections. § 1553(c)(2),

123 Stat. at 300. If the employee establishes that his or her

disclosure “was a contributing factor in the reprisal,”

§ 1553(c)(1)(A)(i), 123 Stat. at 299, the burden then shifts to

the employer to show by “clear and convincing evidence”

that it would have removed the employee “in the absence of

the disclosure,” § 1553(c)(1)(B), 123 Stat. at 299. If the

agency concludes that a prohibited reprisal has occurred, it

may order various forms of relief, including compensatory

damages and reinstatement. § 1553(c)(2), 123 Stat. at 300.

II.

In 2009 and 2010, the Tribe received over $27 million in

stimulus funds to complete construction of a water pipeline

on its reservation. The Tribe had previously entered into

funding agreements with the Department that authorized the

2

Statutory references are to the American Recovery and

Reinvestment Act unless otherwise indicated.

6 CHIPPEWA CREE TRIBE V. USDOI

Tribe to administer the federal funds it received in those

years. See 25 U.S.C. § 5363. As a condition of receiving

the water pipeline funding, the Tribe executed two

modifications to those preexisting agreements. The

modified agreements required the Tribe to comply with the

Act’s whistleblower protections, and specifically provided

that those protections would be “enforceable pursuant to

processes set up by ARRA.”

Ken St. Marks owns a construction company that was

involved in building the pipeline paid for by the stimulus

funds. In August 2012, St. Marks reported to the

Department that he believed members of the Tribe, including

individuals on the Tribe’s governing Committee, were

misusing ARRA funds. Three months later, members of the

Tribe elected St. Marks to serve as Chairman of the

Committee. 3

St. Marks contends that he informed members of the

Tribe of the alleged fraud in an open letter on March 5, 2013,

but the Committee disputes that the letter was ever sent.

Later that same week, St. Marks filed a whistleblower

complaint with the Department, alleging that he had “been

threatened and retaliated against,” and that there was a

petition circulating to remove him as Chairman. The

Committee subsequently removed St. Marks from his

position on March 25, 2013, for “neglect of duty and gross

misconduct.”

3

The Committee consists of eight general members and a Chairman,

all of whom are elected by members of the Tribe. Any member of the

Committee, including the Chairman, can be removed by a vote of a

majority of the other members of the Committee.

CHIPPEWA CREE TRIBE V. USDOI 7

The IG began investigating St. Marks’s whistleblower

complaint that spring. After interviewing employees of the

Tribe and other witnesses, the IG submitted its report to the

Department about a year later. The report discussed the

factual background of the investigation, but it offered no

conclusion as to whether St. Marks was the victim of a

prohibited reprisal. The IG did not provide the Tribe with a

copy of its report.

The Department reviewed the IG’s report and issued its

own preliminary order, concluding that the Tribe had

engaged in a prohibited reprisal when the Committee

removed St. Marks from office. 4 At this point, the Tribe had

its first opportunity to view the IG’s report, which was

attached to the Department’s order. The Department then

gave both parties an opportunity to submit additional

documentation, and specifically instructed St. Marks to

detail the relief he sought under the Act.

In response, the Tribe filed a series of exhibits to attempt

to rebut the Department’s conclusion and demonstrate that

the Committee had properly removed St. Marks from office

for fraud and misconduct. St. Marks submitted a request for

monetary relief and reinstatement with supporting

documentation. He also asked that various restrictions be

placed on the Committee’s actions.

After analyzing the available evidence—including the

Tribe’s newly submitted exhibits—the Department issued a

final order confirming its earlier decision that the Tribe had

engaged in a prohibited reprisal. The Department awarded

4

Although the Inspector General’s Office is within the Department

of the Interior, we use “Department” to refer to the part of the agency

responsible for issuing an order under § 1553(c)(2), 123 Stat. at 300.

8 CHIPPEWA CREE TRIBE V. USDOI

St. Marks approximately $650,000, including back pay,

front pay, travel costs, and legal fees, and it ordered the Tribe

“to stop any and all reprisals against St. Marks arising out

of” his whistleblower activities. St. Marks had also

requested compensatory damages arising from lost business

opportunities, including his inability to secure a loan to

purchase a nearby hotel, but the Department concluded that

those losses were speculative and not clearly connected to

the reprisal. The Department further declined to award

attorney’s fees arising from St. Marks’s other disputes with

the Tribe, including two lawsuits the Tribe had filed against

St. Marks in tribal court. And, recognizing that reinstating

St. Marks would necessarily implicate issues of “tribal

sovereignty and self-determination,” the Department did not

require the Tribe to restore St. Marks to his position as

Chairman.

The Tribe now petitions for review of the Department’s

order.

III.

The Tribe raises five challenges in its petition for review:

(1) St. Marks is ineligible for whistleblower protection

because he is not an employee of the Tribe; (2) the

Department violated the Tribe’s sovereignty; (3) the

Department violated the Tribe’s procedural due process

rights; (4) the Department misconstrued the facts in

concluding that a prohibited reprisal occurred; and (5) even

assuming that a prohibited reprisal occurred, the Department

incorrectly calculated the monetary relief due to St. Marks.

We address each in turn.

CHIPPEWA CREE TRIBE V. USDOI 9

A.

We first consider the Tribe’s argument that St. Marks

was not an “employee” and thus is ineligible for

whistleblower protection under the Act. To qualify as an

“employee,” ARRA requires only that “an individual

perform[] services on behalf of an employer.”

§ 1553(g)(3)(A), 123 Stat. at 301. As the parties do not

dispute that the Tribe is an employer under the Act, the

question here is whether St. Marks performed services on

behalf of the Tribe.

He undoubtedly did. Among other duties, the Tribe’s

constitution requires the Committee to “negotiate with the

Federal, State and local governments on behalf of the tribe,”

“manage all economic affairs and enterprises of the tribe,”

and “approve or veto any sale, disposition, lease or

encumbrance of tribal lands.” As Chairman of the

Committee, St. Marks was responsible for these tasks, as

well as “presid[ing] over all meetings of the committee,”

“perform[ing] all duties of a Chairman,” and “exercis[ing]

any authority delegated to him by the committee.” He was

also paid a salary by the Tribe for serving as Chairman. No

more is required to hold that St. Marks was an employee

within the meaning of ARRA. See BedRoc Ltd., LLC v.

United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry

begins with the statutory text, and ends there as well if the

text is unambiguous.”).

This case is unlike those in which courts are “asked to

construe the meaning of ‘employee’ where the statute

containing the term does not helpfully define it.” Clackamas

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444

(2003) (quoting Nationwide Mut. Ins. Co. v. Darden,

503 U.S. 318, 322 (1992)). The Americans with Disabilities

Act, for example, states only that an employee is an

10 CHIPPEWA CREE TRIBE V. USDOI

“individual employed by an employer.” Id. (quoting

42 U.S.C. § 12111(4)). ERISA does the same. See Darden,

503 U.S. at 323 (quoting 29 U.S.C. § 1002(6)). In the face

of those “circular” descriptions, the Supreme Court has

turned to the common-law definition of an employee to

determine the statutes’ coverage. Id. ARRA, in contrast,

defines the term “employee” without reference to the verb

“employed.” See § 1553(g)(3)(A), 123 Stat. at 301. As a

result, we can apply the statutory definition without resorting

to the common law for guidance.

The Tribe argues that St. Marks cannot be considered an

employee because he was elected. But the Supreme Court

has held that “[t]he mere fact that a person has a particular

title—such as partner, director, or vice president—should

not necessarily be used to determine whether he or she is an

employee.” Clackamas, 538 U.S. at 450; cf. Goldberg v.

Whitaker House Coop., Inc., 366 U.S. 28, 32 (1961) (“There

is nothing inherently inconsistent between the coexistence of

a proprietary and an employment relationship.”). And, in

other statutes, Congress has expressly excluded elected

officials from employee protections. See, e.g., Age

Discrimination in Employment Act, 29 U.S.C. § 630(f)

(“[T]he term ‘employee’ shall not include any person elected

to public office in any State or political subdivision of any

State by the qualified voters thereof.”); Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e(f) (same); Fair Labor

Standards Act, 29 U.S.C. § 203(e)(2)(C)(ii)(I) (excluding

from the definition of “employee” any individual who “holds

a public elective office of [a] State, public subdivision, or

agency”). Were it obvious that elected officials could never

qualify as employees, as the Tribe argues, then Congress

would not have needed to specify in those statutes that

elected officials were excluded. And the fact that Congress

did not exclude elected officials from ARRA even though it

CHIPPEWA CREE TRIBE V. USDOI 11

did so in other statutes suggests that Congress intended to

include them within ARRA’s whistleblower protections.

See Meghrig v. KFC W., Inc., 516 U.S. 479, 484–85 (1996)

(comparing two different statutes to conclude that the

language in one did not encompass a particular remedy

because the inclusion of that remedy in the other

demonstrated that Congress “knew how to provide” such a

remedy when it so desired).

Congress’s choice in this regard makes perfect sense.

ARRA rapidly distributed billions of dollars in stimulus

funding to tribes, states, and local governments—most of

which have elected officials. To safeguard those funds,

Congress implemented “a historic level of transparency,

oversight and accountability,” including protections for

“[f]ederal and state whistleblowers who report fraud and

abuse.” H.R. Rep. No. 111-4, at 2–3 (2009). It would have

substantially weakened those safeguards if Congress had

excepted from protection all elected officials, particularly

because those officials will often be in a good position to

identify and report fraud.

B.

The Tribe next urges that the Department’s order

infringes its sovereignty and powers of self-governance, and

that Congress did not intend such an outcome when it passed

the Act. We disagree. The Act makes clear that it applies to

tribes. See § 1610(b), 123 Stat. at 304–05 (requiring that an

agreement distributing stimulus funds to a tribe for a project

conducted under any of several tribal statutes “incorporate

provisions to ensure that the agreement conforms with the

provisions of this Act regarding . . . transparency, oversight,

reporting, and accountability”). And when “Congress

clearly indicates that Indian tribes are subject to a given law,

no tribal sovereignty exists to bar the reach or enforcement

12 CHIPPEWA CREE TRIBE V. USDOI

of that law.” Blue Legs v. U.S. Bureau of Indian Affairs,

867 F.2d 1094, 1096 (8th Cir. 1989). This doctrine applies

even where federal law infringes a tribe’s self-governance.

See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)

(“Congress has plenary authority to limit, modify or

eliminate the powers of local self-government which the

tribes otherwise possess.”).

But even were we hesitant to conclude that a unilateral

Congressional enactment authorized the agency to wade into

issues implicating tribal governance, the Tribe voluntarily

agreed to federal oversight when it accepted the stimulus

funds. Put another way, as much as tribal sovereignty “rests

in the hands of Congress,” Michigan v. Bay Mills Indian

Cmty., 134 S. Ct. 2024, 2037 (2014), it also rests in the hands

of the Tribe. And when the Tribe accepted $27 million in

ARRA funds from the federal government, it agreed to

certain procedures for safeguarding the use of those funds.

The Department’s subsequent resort to those procedures did

not violate the Tribe’s sovereignty. Cf. Madison v. Virginia,

474 F.3d 118, 128 (4th Cir. 2006) (“[O]ne attribute of State

sovereignty is the ability to waive it in pursuit of other

objectives, in this case pursuit of federal funding.”). 5

Reversing the Department’s order on tribal sovereignty

grounds otherwise would allow the Tribe to reap the benefits

of the stimulus funds while using its sovereign status to shirk

the Act’s requirements.

5

Because the Department only awarded monetary relief, the remedy

imposed does not burden the Tribe’s sovereignty any more than a remedy

meant to compensate a more typical tribal employee for a grievance

against the Tribe. This case does not require us to consider whether it

would have violated the Tribe’s sovereignty if the Department had

ordered the Tribe to reinstate St. Marks to the role of Chairman of the

Committee, because the Department did not do so.

CHIPPEWA CREE TRIBE V. USDOI 13

C.

The Tribe next argues that it had a due process right to a

hearing with cross-examination before the Department

reached its conclusion. But the Tribe consented to the

procedures outlined in the Act, which do not include a

hearing, in exchange for millions of dollars in federal funds.

Just as the Tribe cannot complain that the ARRA

whistleblower provisions it agreed to infringed its

sovereignty, the Tribe also cannot complain that the

accompanying adjudication procedures were insufficient.

It is well within Congress’s power under the Spending

Clause, U.S. Const. art. 1, § 8, cl.1, to “condition the receipt

of funds, by states or others, on compliance with federal

directives.” Nevada v. Skinner, 884 F.2d 445, 447 (9th Cir.

1989). And Congress “has corresponding authority under

the Necessary and Proper Clause,” U.S. Const. art. 1, § 8,

cl.18, “to see to it that taxpayer dollars appropriated under

that power are in fact spent for the general welfare, and not

frittered away in graft or on projects undermined when funds

are siphoned off.” Sabri v. United States, 541 U.S. 600, 605

(2004); see also Rust v. Sullivan, 500 U.S. 173, 195 n.4

(1991) (explaining that Congress’s “power to allocate funds

for public purposes includes an ancillary power to ensure

that those funds are properly applied to the prescribed use”).

Thus, although “the United States is not concerned with and

has no power to regulate local political activities[,] . . . it

does have power to fix the terms upon which its money

allotments to states shall be disbursed.” Oklahoma v. U.S.

Civil Serv. Comm’n, 330 U.S. 127, 143 (1947). As a result,

here Congress could undoubtedly bolster the Act’s

whistleblower protections by requiring grant recipients to

agree to procedures that would allow agencies to investigate

whistleblower complaints more efficiently.

14 CHIPPEWA CREE TRIBE V. USDOI

The Supreme Court has articulated five restrictions on

Congress’s spending authority, South Dakota v. Dole, 483

U.S. 203 (1987), and ARRA stays well within them. See id.

at 207–11. First, “the exercise of the spending power must

be in pursuit of the general welfare.” Id. at 207 (internal

quotation marks omitted). Congress’s goal of encouraging

economic recovery easily complies with this restriction,

even assuming it imposes a constraint at all. See

Mayweathers v. Newland, 314 F.3d 1062, 1066 (9th Cir.

2002) (noting that the Supreme Court “seems doubtful that

failure to advance the general welfare could ever provide

adequate grounds for invalidating a federal statute”).

Second, any conditions imposed on the receipt of funds

must be clear and unambiguous so that recipients are aware

of any consequences of accepting the funds. Dole, 483 U.S.

at 207. In that sense, “legislation enacted pursuant to the

spending power is much in the nature of a contract,” where

Congress’s authority “to legislate . . . rests on whether the

State voluntarily and knowingly accepts the terms of the

‘contract.’” Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 17 (1981). Here, the Act expressly outlines the

procedures that govern whistleblower complaints, and it is

clear that those procedures do not include a hearing or other

opportunity for cross-examination. See § 1553(b), 123 Stat.

at 297–99. And in case there was any doubt, not only did

acceptance of funds under the Act effectively form a

contract, but the Tribe also expressly agreed by written

contracts to ARRA’s procedures.

Third, the “conditions must . . . bear some relationship to

the purpose of the federal spending.” New York v. United

States, 505 U.S. 144, 167 (1992); see also Dole, 483 U.S. at

207. This requirement, too, is easily met by ARRA’s

whistleblower provisions. Because ARRA’s whistleblower

CHIPPEWA CREE TRIBE V. USDOI 15

procedures are designed to ensure that stimulus funds are

properly spent, they relate directly to Congress’s interest in

ensuring that vast quantities of federal funds are used for

their intended purpose—here, to construct the Tribe’s water

pipeline, and not to line tribal members’ pockets.

Fourth, there must be no “independent constitutional

bar” to the imposed conditions. See Dole, 483 U.S. at 210.

This prong “stands for the unexceptionable proposition that

the [spending] power may not be used to induce the States to

engage in activities that would themselves be

unconstitutional.” Id. It does not prevent Congress from

requiring the Tribe to forego some typically available

procedural protections in exchange for federal funds, at least

when those procedural limitations are imposed only on

investigations related to those funds.

Fifth, Congress cannot use its spending power as a

bludgeon. See Dole, 483 U.S. at 211 (“[I]n some

circumstances the financial inducement offered by Congress

might be so coercive as to pass the point at which ‘pressure

turns into compulsion.’” (quoting Steward Mach. Co. v.

Davis, 301 U.S. 548, 590 (1937))). But it did not do so here.

Importantly, ARRA’s conditions attached only to the

stimulus funds the Tribe received to complete a discrete

infrastructure project. It is true that the stimulus grant

funded a project that was important to the Tribe, but an offer

is not coercive just because it is attractive.

If the Tribe did not wish to take the minor risk that an

agency might erroneously conclude that its termination of an

employee was a prohibited reprisal, then it could simply

16 CHIPPEWA CREE TRIBE V. USDOI

have refrained from applying for stimulus funds. 6 But

“Congress d[id] not have to sit by and accept the risk of

operations thwarted by local and state improbity,” Sabri,

541 U.S. at 605, while distributing a massive stimulus

package. It was well within Congress’s prerogative to

diminish—slightly—the full panoply of usual procedural

protections to ensure that agencies could efficiently

investigate whistleblower complaints. 7

The Department did commit one procedural error, but

the error was ultimately harmless. The Act requires the IG

to investigate a whistleblower complaint and then submit its

report to the complainant, the employer, and the head of the

appropriate agency. § 1553(b), 123 Stat. at 297–99. The Act

thereby contemplates that an employer will have an

opportunity to respond to the IG’s report before the agency

makes its determination. Here, however, the Tribe did not

have access to the IG’s report until the Department issued its

preliminary decision. This was error; the statute plainly

requires the IG to provide the employer and the agency with

its report at the same time. See id. But because the

Department issued both preliminary and final orders, the

6

We are highly skeptical that a hearing would have led to a different

outcome in this case in any event.

7

We recognize that our decision is in tension with Business

Communications, Inc. v. U.S. Department of Education, 739 F.3d 374

(8th Cir. 2013), which held that the Due Process Clause guaranteed a

contractor a right to either a pre- or post-deprivation hearing when it was

ordered to reinstate an employee who was terminated in alleged

retaliation for reporting the contractor’s non-compliance with ARRA.

See id. at 381. But we disagree with the Eighth Circuit’s apparent

assumption that general due process principles control where a statute

passed pursuant to the spending power conditions the receipt of funding

on agreement to specific procedures.

CHIPPEWA CREE TRIBE V. USDOI 17

Department was able to cure the error resulting from this

violation. After reviewing the preliminary order—to which

the IG’s report was attached—the Tribe submitted extensive

rebuttal evidence directed to the merits of the underlying

determination. The Department then evaluated all of the

evidence again, and, if anything, in greater detail than it had

in its preliminary order. As a result, this error does not

warrant reversal. 8

D.

We next turn to the Tribe’s argument that the

Department erred in finding that the removal of St. Marks

was retaliatory.

The Administrative Procedure Act (“APA”) governs

judicial review of an order issued under ARRA.

§ 1553(c)(5), 123 Stat. at 300 (“Review [under ARRA] shall

conform to chapter 7 of title 5, United States Code.”). Under

the APA, we will set aside the Department’s decision if it

was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). To assess whether the Department’s decision

survives such review, we “must determine whether [it]

articulated a rational connection between the facts found and

the choice made.” See Ariz. Cattle Growers’ Ass’n v. U.S.

Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229,

8

We are not persuaded by the Tribe’s argument that the Department

had already definitively concluded when it issued its preliminary order

that a prohibited reprisal had occurred, and that the Tribe’s efforts to

rebut the complaint were thus entirely futile. The Department’s order

shows that it reviewed the evidence without affording its initial

determination any presumptive weight.

18 CHIPPEWA CREE TRIBE V. USDOI

1236 (9th Cir. 2001). We have no trouble concluding that it

did.

1.

ARRA lays out mechanisms for an employee to provide

evidence of retaliation, and then for an employer to rebut it.

The complainant must first offer evidence that a protected

disclosure “was a contributing factor in the reprisal.”

§ 1553(c)(1)(A)(i), 123 Stat. at 299. The Act allows a

complainant to do this with circumstantial evidence,

including “(I) evidence that the official undertaking the

reprisal knew of the disclosure; or (II) evidence that the

reprisal occurred within a period of time after the disclosure

such that a reasonable person could conclude that the

disclosure was a contributing factor in the reprisal.”

§ 1553(c)(1)(A)(ii), 123 Stat. at 299.

There is no dispute that the Committee knew by

September 2012 that St. Marks had informed the

Department of his suspicions regarding misuse of stimulus

funds. The Committee was thus aware of his disclosure at

the time of the alleged reprisal in March 2013. See

§ 1553(c)(1)(A)(ii)(I), 123 Stat. at 299. And six months is

certainly within the time frame that could lead a reasonable

person to conclude that St. Marks’s whistleblowing was a

“contributing factor” in his removal. See

§ 1553(c)(1)(A)(ii)(II), 123 Stat. at 299; cf. Coszalter v. City

of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (“Depending on

the circumstances, three to eight months is easily within a

time range that can support an inference of retaliation.”).

The Tribe itself repeatedly emphasizes that the

Committee was aware of St. Marks’s disclosure in the fall of

2012. The Tribe seems to assume that this timing immunizes

it because any prohibited reprisal would have to have taken

CHIPPEWA CREE TRIBE V. USDOI 19

place within a few weeks of the Committee’s learning of the

disclosure, and St. Marks was not discharged until the end of

March 2013. The Tribe’s assumption is incorrect. Our

caselaw does not require that an employer remove an

employee within weeks of discovering a protected disclosure

to support an inference that the two events are causally

linked. Cf. Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir.

2002) (explaining that “an eleven-month gap in time is

within the range that has been found to support an inference

that an employment decision was retaliatory”). 9

2.

Once an employee provides evidence of a prohibited

reprisal, the employer can rebut that showing by presenting

“clear and convincing evidence that [it] would have taken

the action constituting the reprisal in the absence of the

disclosure.” § 1553(c)(1)(B), 123 Stat. at 299. The Tribe

presented seven alternative justifications for its decision to

remove St. Marks, including that St. Marks allegedly

improperly removed a tribal judge and verbally and sexually

harassed tribal employees. But the Department soundly

addressed these proffered justifications in its final order. In

particular, the Department emphasized that the Tribe not

only lacked clear and convincing evidence, but in fact lacked

any “contemporaneous evidence documenting discovery of

the alleged unauthorized behavior” or any “timely, formal

. . . process and procedure to investigate and adjudicate any

of the allegations.” The Department reasonably concluded

9

Because the Tribe admits that the Committee knew of St. Marks’s

disclosure in the fall of 2012, it does not matter whether the Committee

knew of the open letter, or indeed whether the letter existed at all. The

analysis in the Department’s order did not turn on the letter. Rather, the

Department emphasized that the Committee was aware of St. Marks’s

disclosure “months” before he was removed.

20 CHIPPEWA CREE TRIBE V. USDOI

that a “laundry list of unsubstantiated findings in a tribal

government document [was] wholly insufficient to support

the drastic and significant measure of removing an elected

official.”

Moreover, the Tribe does not meaningfully contest the

Department’s conclusion that its proffered justifications

were largely pretextual. Although the Tribe’s brief reiterates

its seven justifications for removing St. Marks from office,

the Tribe does not substantively engage with the

Department’s reasons in its final order for finding those

justifications pretextual. Even if we exercise our discretion

not to treat this as a forfeiture of any challenge to the

Department’s conclusion that the Tribe engaged in a

prohibited reprisal, the Tribe certainly has not presented a

compelling argument that the Department’s decision was

arbitrary or capricious.

E.

Finally, the Tribe contends that, even if a prohibited

reprisal occurred, the agency incorrectly calculated St.

Marks’s monetary award. St. Marks reported to the

Department that he was earning a yearly salary of

$128,000—a figure that the Tribe did not challenge in its

subsequent filing. But the Tribe now argues that because

St. Marks had at an earlier time voluntarily requested a

$50,000 decrease in his yearly salary, the Department erred

by calculating his front and back pay using the initial

$128,000 figure. 10

10

It appears that St. Marks requested the pay cut to offset payments

he had authorized to members of the Tribe who were in financial need.

CHIPPEWA CREE TRIBE V. USDOI 21

The Tribe did not make this argument to the Department,

and it cannot raise it for the first time on appeal. 11 See

Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (“It is

a well-known axiom of administrative law that ‘if a

petitioner wishes to preserve an issue for appeal, he must

first raise it in the proper administrative forum.’” (quoting

Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980))).

Thus, regardless of whether the Department should have

used St. Marks’s official salary or his reduced salary to

calculate front and back pay, we affirm the agency’s award.

IV.

For the foregoing reasons, we DENY the Tribe’s

petition.

11

One passing reference in the IG’s file to St. Marks’s offer to

reduce his salary—in a document submitted by St. Marks, no less—was

insufficient to put the Department on notice that the Tribe believed there

was a discrepancy in the Department’s calculations.