Petition for Writ of Certiorari — Peabody Western Coal Co. v. Equal Employment Opportunity Commission

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DY Susrome Court, U.S.

i” FIL E)D

05-353 SEP 15 2005

No. S-—— BN EEICE UF Ti iE CLERK

IN THE

Supreme Court of the United States

Peabody Western Coal Company and

Peabody Coal Company, LLC,

Petitioners,

Vv.

Equal Employment Opportunity Commission.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Jeffery L. Klinger Thomas C. Goldstein

PEABODY WESTERN COAL (Counsel of Record)

COMPANY Amy Howe

701 Market Street Kevin K. Russell

St. Louis, MO 63101 GOLDSTEIN & Howe, P.C.

4607 Asbury Place, N.W.

Washington, DC 20016

(202) 237-7543

September 15, 2005

| RR LT . LNA emer

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether a plaintiff may join as an involuntary defendant

under Federal Rule of Civil Procedure 19 a party which the

plaintiff is prohibited from suing directly

RULE 29.6 STATEMENT

Petitioner Peabody Western Coal Company is a wholly

owned subsidiary of Peabody Holding Company, Inc.

Petitioner Peabody Coal Company, LLC, is wholly owned by

Interior Holdings, LLC, which is wholly owned by Eastern

Coal Company, LLC, which is wholly owned by Peabody

Holding Company, Inc. Peabody Holding Company, Inc., in

turn, is wholly owned by Peabody Investments Corp., which

is wholly owned by Peabody Energy Corporation, a publicly

held company.

i in: a » ~_e . *e Le . . 5 "

PARTIES TO THE PROCEEDING BELOW

Petitioner Peabody Western Coal Company appeared in

the court below but in some instances was erroneously

designated as Peabody Coal Company. For avoidance of

doubt, both companies are named as petitioners in this Court.

TABLE OF CONTENTS

eee ITE TE iccncésrucstcipanitcciedecssncsouiinmedintadetonsions i

RULE 29.6 STATEMENT ...... aN Ane I Te ae SA OO ii

PARTIES TO THE PROCEEDING BELOW..................5... iil

Se Ge CEE iincastcessdetniatedtinecusiinnisiecintndiietiinehinads iv

ee Ce Be Ie OE diceseniensusthtteideuianinsenteoninstnateniietii vi

PETITION FOR A WRIT OF CERTIORARI ....................04. l

I I

RTTTIEE HUTTE ciininesitichnsssnisuidiicnesseiliaiictesidialediebinaloniineibiiiedati |

RELEVANT STATUTORY PROVISIONS AND RULE..... |

EG GIS HIE Ge iccitdtneccloccobiteclassdmientendicadiiasunes 3

REASONS FOR GRANTING THE WRIT.................00:::00e- 9

1. The Ninth Circuit’s Holding That A Party May Be

Joined To A Suit Notwithstanding That No Claim

May Be Stated Against The Joined Party Is The

Subject Of A Square Circuit Conflict. 0.0.0... ceceecereeeeees 9

A. The Ninth Circuit’s Decision Conflicts With

Precedent From Other Circuits On The Proper

BONG CE TRIED BD. sscnsctesasnssncsintsiqitentiatnsindieriteatinnirs 9

B. The Ninth Circuit’s Attempt To Distinguish

Contrary Precedents From Other Circuits Fails. .... 13

Il. Certiorari ls Warranted In ).ight Of The {mportant

Sovereign Interests At Stake In The Relationship

Between Tribal Governments And The United States .. 15

II]. Rule 19 May Not Be Used To Circumvent

Restrictions Congress Has Placed On A Party’s

Right To Sue An Absent Party Directly. ...........:esceeee 17

A. Congress Clearly Prohibited the EEOC From

Litigating Disputes With Indian Tribes................. 17

1. Plain Language of Title VID ............cceeeees 17

Bo PID ccnsctscteccusvsscvitticisntenianialiviincnnendneta 20

3. Statutory Provisions Limiting Suits

Against Government Entities Must Be

DUOC CORIUOOG, seccesctcsstsitnctstscpasestensseasinss 24

S lle af Ree > > A.

B. Rule 19 May Not Be Used To Circumvent

Limits Congress Has Established On A Party's

Pee OTnE Te i dnceasnnneineincituntiniaiaainntnaiaenaciniaticueieiecnindinineiies

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TABLE OF AUTHORITIES

Cases

Affiliated Ute Citizens of Utah v. United States, 406 U.S.

ae ae ae MERE a 15

Alden v. Maine, 527 U.S. 706 (1999) ....... ccc ccc cccc eee ceeeeeeeees 20

Alexander v. sandoval, 532 U.S. 275 (2001) ........cccccc cece 27

Beverly Hills Sav. & Loan Ass'n v. Webb, 406 F.2d 1275

(CA9 1969)........ a A a Re Se Me x

C & L Enters. v. Citizen Band Potawatomi Indian

Tribe of Oklahoma, 532 U.S. 411 (2001) ..........000000... 20, 24

California v. Sierra Club, 451 U.S. 287 (1981) .............0000 10

Chavous Vv. District of Columbia Fin. Responsibility and

Mgmt. Assistance Auth., 154 F. Supp. 2d 40

SEPA EE nas EIU cincsciiininticiiniinimtansicitianmnasinisitinisiteiamhsidenntcadisiiomasie 14

Choctaw Nation of Indians v. United States, 318 U.S.

er a ccieeeciceenintinenectstintatintinniieniintatieceiiiiiiiiided 15

County of Oneida v. Oneida Indian Nation, 470 U.S. 226

CRIED ncinceetnuscinenpiacipheiindesuntininsinianitiniemaiaietitiaidaitindianicdnniien 15

Davenport v. Int'l Bhd. of Teamsters, AFL-CIO,

OS re Fe es FO weeiteeacstntcisemnntincrninnnens 8, 12,14

Dawavendewa v. Salt River Agr. Imp. & Power Dist.,

ood m Eliy «| eee 3,4

Dawavendewa v. Salt River Project Agr. Improvement &

Power Dist., 276 F.3d 1150 (CA9 2002)........ceccceeeeeeeeeee 25

Dellmuth v. Muth, 491 U.S. 223 (1989) ooo. ccccceeeeeeee 20, 24

Dunn v. Carey, 110 F.R.D. 439 (S.D. Ind. 1986),

aff'd on other grounds, 808 F.2d 555 (CA7 1986)........... 1]

EEOC v. American Federation of Teachers, Local No. 571,

POL F. Saupe. S56 CBD. GEE. UDG T) ccceccccccsvccctccesercccecicccsosees 13

EEOC v. Elgin Teachers Ass'n, 27 F.3d 292 (CA7 1994)... 12

EEOC v. Elgin Teachers Ass'n, 658 F. Supp. 624

OU i a 12

EEOC v. MacMillan Bloedel, 503 F.2d 1086

| RRS ae Seen hie SEDER AS 8, 10, 28

vii

EEOC v. Oak Park Teachers’ Ass'n, 45 Fair Emp]. Prac.

eo Pf 8 a eee ae 13

EEOC v. Union Independiente de la Autoridad de

Acueductos, 279 F.3d 49 (CAL 2002).........cccccccceeeeeeeeeees 8,9

Federal Maritime Comm'n v. South Carolina State Ports

FM OD rena 16

General Buildir... -ontractors Ass'n v. Pennsylvania, 458

ND 0: , CR a ene n Daas en enn 28

Hanna v. Plumer, 380 U.S. 460 (1965) ...........cccccccccceeeeeeeeeee 26

Hines v. Grand Casinos of Louisiana, LLC,

140 F. Supp. 2d 701 (W.D. La. 2001)... ceeccceeeeeerereees 14

idaho v. Coeur D’Alene Tribe, 521 U.S. 261 (1997) ........... 26

International Brotherhood of Teamsters v. United

pe Rg eee See 28

Kiowa Tribe of Ok!ahoma v. Mfg. Techs., 523 U.S. 751

Sire cacssininnctninihiantsatctdestsiniectiiniiislanitiaasiaississstal tide iti tears 16, 24

Kreig v. Prairie Island Dakota Sioux (In re Prairie

Island Dakota Sioux), 2\ F.3d 302 (CA8 1994)............... 26

Martin v. Wilks, 490 U.S. 755 (1989)........cccccccccecseeeceeeeeeeeees 28

National Wildlife Fed'n v. Espy, 45 F.3d 1337 (CA9 1995).. 8

Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck

Hous. Auth., 207 F.3d 21 (CAL 2000)... ee eceeeeeerereeees 26

Oklahoma Tax Comm'n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505 (1991).........cccccccceeeeeeeecerereeees 20

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)............ 26, 27

Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S.

eRe ene ea te GN ie ere Shine 27

Sierra Club v. Hodel, 848 F.2d 1068 (CA10

TI ssiencuindentihivataipeniiaiteindaantiashadaa aia tata a a we 8, 10, 12, 13

United States v. City of Philadelphia, 644 F.2d 187

(Es REE er Ai en an Oy Rd DET 19

United States v. Fresno Unified Sch. Dist., 592 F.2d

ce BOP ceiiaccerncehnicinnesdinisesssieaibdddenitndaiibcistteeiienils 19

United States Department of the Interior v. Klamath Water

Users Protective Ass'n, 532 U.S. 1 (2001)...........0..... 15, 16

Vieux Carre Prop. Owners v. Brown, 875 F.2d 453

PU CIENT ccccvinniinsusicnnstidaidiniiasateiianeasalnmiibientagdaigials passim

vill

Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) 17

Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979).......... 23

LR RG ; 28

Statutes

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ST, Ee 26

42 U.S.C. 1981.......... AE A a 10, 28

I IT onsen naennnepnitiecsionnbunneubaeeesoneaneseens 1, 5, 6, 18

a csnsendenneoinennninens 1,3

do satincstcerentnntenmenneegenecuesevecnennenveetn |

TTT occ ccetenenivenbeenemnennsssneroreuennenneeenee 3

42 U.S.C. 2000e-2(c)........ oS AEE FETS ee 3

SII TTT sc cccincacistencinepnetsnnnicentncsvesepeesneusovensseccense 3

42 U.S.C, 2000€-2(1)......cecceeereeeees oS

42 U.S.C. 2000 0-4.........c00000. einiiahiindicmiineiaeanetniene inchousine 20

EEE sileniiei —

SUITE: TTI TI ccnscensesncessunseseszenveencenesouenvececeevsecens passim

42 U.S.C. 2000e-5(f)(1)........... esstadlataiinbnibanetnnnamniinmmeinatin passim

STII IIIT ETD ccsenecnscoccovccnceseoeeveorereveceveows eniiaiaiel 4,6

\ IT NI i nccncscsscecuvczernsepeveeseoves wae SF

42 U.S.C. 2000€-6(d) .......cceccerserersereeeeeeees sieapedaedibbishiaiaaitaaain 19

caren acenditemecnenennesonetebcsecesonevens 4,6

Reorganization Plan No. | of 1978, reprinted in

ei 19

Other Authorities

Pet. for Cert. 27, United States Dep't oj Interior v. Klamath

Water Users Protective Ass'n, 530 U.S. 1304 (2000) (No.

| ener eee peoaniniaaiaidieiencteasiatiammiaaaiatiles 16

Regulations

Bee Ca cas ADD caieiecinnicneineninltinariiaeritapeiaiaiieiadailiale 21,22

Se lk ei Se crciinincticniieetncauatineninceiigieettiiehmeeibiitliinipatiineaciaiia 23

Rules

Fed. R. Civ. P. 19.....:0.. sosnastiinansatchanlncisdaniintaniaenibiialalaias passim

Fed. R. Civ. P. 19(a).............. ssisibinamnabanitatstinatiobeiianiiatas 7,8, 11, 25

FR Cite Cee Ura: Se ccniecedusctiounisnunseniccniiedicininandiiiatdattadaetiliaaales 25

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PETITION FOR A WRIT OF CERTIORARI

Petitioners Peabody Western Coal Company and

Peabody Coal Company, LLC, respectfully petition for a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Ninth Circuit in this case.’

OPINIONS BELOW

The opinion of the Ninth Circuit (Pet. App. la-18a) is

published at 400 F.3d 774. The opinion of the district court

(id. 19a-48a) is published at 214 F.R.D. 549.

JURISDICTION

The court of appeals denied rehearing and rehearing en

banc on May 18, 2005. See Pet. App. 49a. On August 3,

Justice O’Connor extended the time to file this petition to and

including September 15, 2005. App. 05A122. This Court has

jurisdiction pursuant to 28 U.S.C. 1254(1).

RELEVANT STATUTORY PROVISIONS AND RULE

Title VII of the Civil Rights Act of 1964, provides, in

relevant part:

It shall be an unlawful employment practice for an

employer * * * to fail or refuse to hire or to dis-

charge any individual, or otherwise to discriminate

against any individual with respect to his compensa-

tion, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion,

sex, Or national origin.

42 U.S.C. 2000e-2(a)( 1).

42 U.S.C. 2000e(b) provides, in relevant part, that for

purposes of Title VII, “[t]he term ‘employer’ * * * does not

include (1) * * * an Indian tribe.”

' Because the real party in interest is petitioner Peabody West-

ern Coal Company, hereinafter we use the singular “petitioner.”

ee , ee oe eee Oe ee * ce Se >> “SS Fr ree SS es Te OS _, i Te T)

42 U.S.C. 2000e-2(i) provides:

Nothing contained in this title shall apply to any

business or enterprise on or near an Indian reserva-

tion with respect to any publicly announced em-

ployment practice of such business or enterprise un-

der which a preferential treatment is given to any in-

dividual because he is an Indian living on or near a

reservation.

42 U.S.C. 2000e-5(f)(1) provides, in relevant part:

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 shal] take no

further action and shall refer the case to the Attorney

General who may bring a civil action against such

respondent in the appropriate United States district

court.

Federal Rule of Civil Procedure 19 provides, in relevant

part:

(a) Persons to be Joined if Feasible. A

person * * * whose joinder will not deprive the court

of jurisdiction over the subject matter of the action

shall be joined as a party in the action if * * * the

person claims an interest relating to the subjev. of the

action and is so situated that the disposition of the

action in the person’s absence may * * * leave any of

the persons already parties subject to a substantial

risk of incurring double, multiple, or otherwise

inconsistent obligations by reason of the claimed

interest.

(b) Determination by Court Whenever Joinder

Not Feasible. If a person as described in subdivision

(a)(1)-(2) hereof cannot be made a party, the court

shall determine whether in equity and good

conscience the action should proceed among the

parties before it, or should be dismissed, the absent

person being thus regarded as indispensable.

STATEMENT OF THE CASE

By statute, Congress has provided that suits by the

federal] government against Indian tribes under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. 2000e ef seg., must be

filed by the Department of Justice rather than the Equal

Employment Opportunity Commission (EEOC). 42 U.S.C

2000e-5(f}( 1), 2000e-6. The Ninth Circuit in this case,

however, permitted the EEOC to circumvent this statutory

restriction merely by suing a third party and then “joining” a

tribe as a defendant. The court of appeals recognized that its

ruling conflicts with the holding of two other circuits that

Rule 19 does not provide parties with an avenue for evading

limitations on their right to bring a direct suit against a

defendant

1. Tithe VII prohibits, inter alia, discrimination on the

basis of national origin in certain employment relationships

42 U.S.C. 2000e-2(a) to -2(d). Respondent EEOC construes

that prohibition to include discrimination in favor of members

of an Indian tribe. See Dawavendewa v. Salt River Agr. Imp

& Power Dist., 154 F.3d 1117, 1121 (CA9 1998). Congress,

however, made a special exception for certain employment

preferences for Indians living on or near a reservation:

Nothing contained in this title shall apply to any

business or enterprise on or near an Indian

reservation with respect to any publicly announced

employment practice of such business or enterprise

under which preferential treatment is given to any

individual because he is an Indian living on or near a

reservation

42 U.S.C. 2000e-2(1). The EEOC interprets this exception

narrowly to permit preferences for Indians generally, but not

preferences for members of the particular Indian tribe on or

near whose reservation the business operates. Dawavendewa,

154 F.3d at 1121.

On the EEOC’s reading of Title VI, the statute renders

invalid provisions in mining leases promulgated and

subsequently re-approved by the Department of the Interior.

The leases, which are entered into between tribes and mining

companies, call for the mining companies to employ a hiring

preference for members of the tribe in question. See Pet.

App. 2a-4a; id. 30a. The EEOC’s position also invalidates

Statutes enacted by numerous Indian tribes including the

Navajo Nation (Nation), which is the country’s largest

federally recognized tribe.’ To “protect the health, safety, and

welfare of Navajo workers,” I5 Navajo Nation Code

602(a)(6), quoted in Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d

1128, 131 (CA9 1995), the Nation has adopted the Navajo

Preference in Employment Act (NPEA), which requires “{a]ll

employers doing business within the territorial jurisdiction of

the Navajo Nation, or engaged in any contract with the

Navajo Nation” to “[g]ive preference in employment to

Navajos,” 15 Navajo Nation Code 604, quoted in Pet. App.

The EEOC cannot, however, sue Indian tribes under Title

Vil. Although Congress generally empowered the EEOC to

enforce Title VII through suits in federal court, see id.

§ 2000e-5(f)(1), it specifically exempted from that authority

claims against any “government, governmental agency, or

political subdivision,” ibid. See also 42 U.S.C. 2000e-5(f)(2),

2000e-8(c). Such suits must be brought not by the EEOC but

instead by the Department of Justice. /bid. The EEOC

acknowledges that this provision vests the authority to sue

Indian tribes in the Department of Justice. See Pet. App. 35a.

In addition, neither the EEOC nor the Department of Justice

may sue a tribe in its capacity as an employer because

* The Nation has over a quarter-million enrolled members and

reservation lands covering 27,000 square miles in Arizona, Utah,

and New Mexico

Congress exempted Indian tribes from the definition of

covered “employers” under Title VII. 42 U.S.C. 2000e(b).

2. Petitioner Peabody Western Coal Company (PWCC)

mines coal within the Nation’s territorial jurisdiction. In

hiring employees for those mining operations, it is, for two

reasons, required to give preference to members of the

Nation. First, the preference ts embodied in the leases —

prepared and approved by the Department of the Interior -

between petitioner and the Nation that govern petitioner's

mining operations. See Pet. App. 30a, 2a. The leases were

amended and re-approved in 1987 and 1999, with no changes

to the preference provisions. /d. 29a. Either the Nation or the

Department of Interior may cancel the leases for a violation cf

their terms. /d. 3a. Second, petitioner is subject to the NPEA

with respect to its mining operations within the territory of the

Nation.

In 2001, respondent EEOC initiated this action by suing

PWCC’s parent company, petitioner Peabody Coal Company,

under Title VII. The complaint rests on the EEOC’s view that

an employment preference in favor of members of one

particular tribe constitutes prohibited national-origin

discrimination and that the exception created by 42 U.S.C.

2000e-2(1) does not permit a business to provide employment

preferences to members of the tribe on whose reservation it

operates. The EEOC specifically alleged that petitioner, in

compliance with the terms of the leases, “has a history of

refusing to hire non-Navajo Native Americans for open

positions at its mine,” in violation of Title VII. Compl. 3.

The EEOC sought an order requiring petitioner to pay

back pay and compensatory and punitive damages to a “class”

of non-Navajo Native Americans. Compl. 4. The EEOC also

sought “a permanent injunction” against “Peabody, its

officers, successors, assigns, and all persons in active concert

or participation with it.” /bid. EEOC has never suggested

that the suit was authorized by the Department of Justice,

which did not sign the complaint. See id. at 5.

Petitioner sought to dismiss the EEOC’s complaint,

explaining that it was nothing more than a thinly veiled suit

against the Nation that the EEOC was prohibited from

bringing directly. In response, the EEOC moved to join the

Nation as a defendant under Federal Rule of Civil Procedure

19. The EEOC specifically requested that the district court

“order the Navajo Nation to appear and defend any interests it

believes may be affected by this litigation.” Pet. App. 34a.

As the district court recognized, those interests are

substantial, for the EEOC “characterizes [its] lawsuit as

litigation over ‘the validity of its [the Navajo Nation's}

discriminatory lease provision and employment preference

provisions * * * [and] the interplay between its tribal

sovereignty and Title VII.” /bid. (quoting EEOC’s

Opposition to Dismissal 4)

The district court held that the EEOC couid not employ

the joinder provisions of the Federal Rules of Civil Procedure

to avoid the statutory prohibition that precluded it from suing

the Nation directly. Not only are tribes “specifically exempt

as employers from the requirements of Title VII,” Pet. App.

37a (citing 42 U.S.C. 2000e(b)), but “[t]he Attorney General

clearly has exclusive authority to file suit whenever a

government such as an Indian tribe is involved,” ibid. (citing

42 U.S.C. 2000e-5(f(1), (2); id. § 2000e-8(c)). The district

court found persuasive decisions of other federal courts

rejecting similar attempts by the EEOC to invoke “joinder” to

circumvent the prohibition on suits against a governmental

entity imposed on it by statute. /d 36a-37a (citing cases).

The district court explained:

The EEOC in effect is seeking to sue the Navajo

Nation to force it to defend the Navajo Preference i

Employment Act and its contracts with employers

working on its lands, when it is prohibited from

suing the Navajo Nation to enforce Title VII

provisions against the tribe directly. This is contrary

to the clear provisions of Title VII prohibiting the

EEOC from suing governments, and specifically

exempting the Indian tribes from its provisions.

Id. 37a-38a. indeed, under these provisions, “joinder of an

Indian tribe under Rule 19 would divest the EEOC of its

authority to litigate.” /d. 39a.

The district court further concluded that the Nation was

an indispensable party to the suit, such that the EEOC’s

complaint must be dismissed because the Nation could not be

jotned. In particular, the absence of the Nation as a party

would prejudice its own sovereign interests and the interests

of the tribal members it represents. Pet. App. 40a. The court

accordingly denied the EEOC’s motion to join the Nation and

dismissed the complaint. /d. 41a.

3. On the EEOC’s appeal, the Ninth Circuit reversed.

The court of appeals characterized the suit as, fundamentally,

a challenge to the provisions of the leases between petitioner

and the Nation that had been issued and approved by the

Department of Interior to “requirefe] that preference in

employment be given to members of the Navajo Nation.”

Pet. App. 2a. The court of appeals did not doubt the district

court’s conclusion that, with respect to such a claim, “the

EEOC cannot directly sue the Nation.” /d. 5a. Rather, it held

that so long as the EEOC does not seek affirmative relief

from the Nation, “joinder * * * is not prevented by the fact

that the EEOC cannot state a cause of action against [the

Nation].” /d. 6a.

The Ninth Circuit reasoned in two stages. First, it agreed

with the district court and the parties “that the Navajo Nation

iS a necessary party under Rule 19(a)(1).” Pet. App. 9a. It

recognized that “the Nation is a signatory to lease provisions

that the [EEOC] challenges under Title VII.” /bid. The court

of appeals accordingly deemed the Nation an indispensable

party under the settled rule that “tribes are necessary parties to

actions that might have the result of directly undermining

authority they would otherwise exercise.” /bid

Second, the Ninth Circuit nonetheless rejected the district

court’s conclusion that the Nation could not feasibly be joined

to the suit under Rule 19. The court of appeals did not doubt

that, through the provisions exempting tnbes from the

definition of “employer” and providing that only the

Department of Justice could sue a government, Congress had

prohibited the EEOC from suing the Nation under Title VII.

Pet. App. !0a-1 la. But it held that the case was controlled by

the circuit’s prior construction of the Rules of Civil Procedure

as providing that “a plaintiff's inability to state a direct cause

of action against an absentee does not prevent the absentee’s

joinder under Rule 19.” /d. lla (citing National Wildlife

Fed'n v. Espy, 45 F.3d 1337, 1344-45 (1995); Beverly Hills

Sav. & Loan Ass'n v. Webb, 406 F.2d 1275, 1279-80 (1969)).

The court of appeals explained that its ruling was

consistent with decisions of the First, Sixth, and Tenth

Circuits. Pet. App. | la (citing Sierra Club v. Hodel, 848 F.2d

1068, 1077 (CAI10 1988)); id. 14a (citing EEOC v. Union

Independiente de la Autoridad de Acueductos’ y

Alcantarillados de Puerto Rico, 279 F.3d 49, 52 (CAI 2002);

EEOC v. MacMillan Bloedel, 503 F.2d 1086, 1088 (CA6

1974)). But it acknowledged the contrary holding of the D.C.

and Fifth Circuits — with which the Ninth Circuit “has never

agreed” (id. 12a) — that “it is implicit in Rule 19(a) itself that

before a party * * * will be joined as a defendant the plaintiff

must have a cause of action against it.” Vieux Carre Prop.

Owners v. Brown, 875 F.2d 453, 457 (CAS 1989). See also

Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d

356, 366 (CADC 1999) (adopting Viewx Carre). The Ninth

Circuit also thought that those rulings might’ be

distinguishable on the ground that in those cases the plaintiffs

had directly sought injunctive relief as against the joined

party. Pet. App. 12a-l3a. Here, by contrast, “[jjoinder is

necessary for the ‘sole purpose’ of effecting complete relief

between the parties by ensuring that both Peabody and the

Nation are bound to any judgment upholding or striking down

the challenged lease provision.” /d. 13a-14a (citation

omitted).’

5. The Ninth Circuit denied rehearing and rehearing en

banc. Pet. App. 49a. This petition followed.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted to resolve a recurring circuit

conflict over the proper construction of a basic rule of civil

procedure and to reinstate the careful balance Congress

established between the powers of the EEOC and the

sovereign interests of government entities such as the Navajo

Nation.

I. The Ninth Circuit’s Holding That A Party May Be

Joined To A Suit Notwithstanding That No Claim

May Be Stated Against The Joined Party Is The

Subject Of A Square Circuit Conflict.

This Court’s intervention is required to resolve an

important division among the federal courts regarding the

proper application and limits of Federal Rule of Civil

Procedure 19.

A. The Ninth Circuit’s Decision Conflicts With

Precedent From Other Circuits On The Proper

Scope Of Rule 19.

The Ninth Circuit in this case relied on that court’s

settled precedent to hold that a party may be joined to an

action under Rule 19 even when no claim may be stated

against it and even if Congress has explicitly precluded the

plaintiff from suing the absent party directly. Pet. App. |4a

(citing also EEOC v. Union Independiente de la Autoridad de

* The court of appeals separately rejected the district court's

holding that the EEOC’s suit was barred because it presented a

nonjusticiable “political question,” Pet. App. 17a, and reinstated the

EEOC’s unrelated challenge to certain recordkeeping by petitioner,

id. 18a. Those holdings are not at issue in this petition.

Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 52

(CAI 2002); Sierra Club v. Hodel, 848 F.2d 1068 (CAI10

1988}; EEOC v. MacMillan Bloedel Containers, Inc., 503

F.2d 1086 (CA6 1974)).

As the court of appeals recognized, the Fifth and D.C.

Circuits disagree. In Viewx Carre Property Owners v. Brown,

875 F.2d 453, 457 (CAS 1989), a community group in New

Orleans sought to block private parties and a local

government from undertaking an aquarium and park project.

The group’s theory was that, under the federal Rivers and

Harbors Act (RHA), the project first required clearance from

the Army Corps of Engineers (Corps). The group sued both

the developers and the Corps.

The Fifth Circuit recognized that Congress had provided

the Administrative Procedure Act “as ¢ route through which

private plaintiffs can obtain federal court review of the

decisions of federal agencies,” alleged to be in violation of

the RHA. 875 F.2d at 456. But the APA provided no such

mechanism for adjudicating the private parties’ compliance

with the RHA. /bid. Moreover, the plaintiffs could not sue

the private defendants directly under the RHA because this

Court had held that “a private party has no implied nght of

action for violations of the RHA.” /bid. (citing California v.

Sierra Club, 451 U.S. 287 (1981)).

The plaintiffs nonetheless argued that the private parties

could be properly joined to their APA suit against the Corps

under Rule 19 and, thereby, could be subject to an

adjudication under the RHA even though Congress has

precluded the plaintiffs from achieving this end directly. 875

F.2d at 456-57 (relying on Sierra Club v. Hodel, 848 F.2d

1068 (CA10 1988)). The Fifth Circuit rejected that argument

for two reasons: one narrow, the other broad. First, the court

held that Rule 19 could not be used to circumvent Congress's

determination to authorize only the Attorney General to bring

suits to enforce the RHA against developers. 875 F.2d at 457.

Permitting the plaintiffs to obtain an RHA adjudication

against the developers would, the Court held, “negate[] the

Supreme Court’s decision in Sierra Club” that Congress did

not intend for private enforcement of that statute. /d. at 457.

“As long as the private plaintiff joined the federal agency in

the action, the former could reach a nonagency defendant

***” Ibid. Rule 19, the court concluded, could not be used

to permit private plaintiffs to sue to enforce the RHA against

developers when the statute “explicitly vests that authority in

the Attorney General.” /bid. “Any other conclusion, we

believe, would be too at odds with Sierra Club.” Id. at 457

n.2.*

The Fifth Circuit also rejected the plaintiffs’ Rule 19

argument on a broader ground, holding that “it 1s implicit in

Rule 19(a) itself that * * * before [a party} will be joined as a

defendant the plaintiff must have a cause of action against it.”

875 F.2d at 457. Because the plaintiffs had no private right of

action to enforce the RHA, they obviously lacked a cause of

action against the private developer defendants. /bid.

The Fifth Circuit unquestionably would reject the Ninth

Circuit’s ruling in this case. The Fifth Circuit held that Rule

19 joinder is prohibited if it would otherwise circumvent a

tatutory restriction on suing the joined party directly. In

reaching that conclusion, the Fifth Circuit notably refused to

* The Fifth Circuit also cited Dunn v. Car _», 110 F.R.D. 439

(S.D. Ind. 1986), aff'd on other grounds, 808 F.2d 555 (CA7 1986),

in which the plaintiffs filed suit alleging that the defendant gov-

ernment officials were subjecting pretrial detainees to unconstitu-

tional prison conditions. The parties reached a consent decree un-

der which a new correctional facility would be created and leased

to the government. In response, certain taxpayers challenged the

lease agreement in state court. The plaintiffs could not sue the tax-

payers to preclude their suit, because the Tax Injunction Act forbids

interference with such state court litigation. Not only did that stat-

ute “deprive[| the Court of jurisdiction over the [taxpayers’] state

law claims,” but also “therefore the [taxpayers] cannot be joined in

this action.” Dunn, 110 F.R.D. at 440.

follow the Tenth Circuit’s decision in Sierra Club v. Hodel,

848 F.2d 1068 (1988), which the decision below embraces,

see Pet. App. I la-12a.

This case falls a fortiori within the Fifth Circuit’s

reasoning. Just as the Fifth Circuit relied on the fact that no

right of action had been implied under the RHA, this case

involves a c.ear prohibition on the EEOC suing the Nation.

The Ninth Circuit's holding in this case also conflicts with the

Fifth Circuit’s broader conclusion that Rule 19 joinder is

prohibited unless the plaintiff can state a claim against the

joined party. Here, the EEOC is prohibited by statute from

secking even a declaratory judgment against the Nation that

its law or the leases it entered with ~<titioner violate Title

Vil.

As the Seventh Circuit observed in EEOC v. Elgin

Teachers Ass'n, 27 F.3d 292, 293 (1994), other courts have

also rejected similar attempts by the EEOC to circumvent the

limits on its power to adjudicate claims against government

entities In Elgin, the EEOC sought to challenge a school

district’s pregnancy leave policies by suing the teacher's

union and joining the school board under Rule 19. EEOC v.

Elgin Teachers Ass'n, 658 F. Supp. 624, 625 (E.D. Ill. 1987).

> The Ninth Circuit’s expansive interpretation of Rule 19 is

also in substantial tension with precedent of the D.C. Circuit. In

Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356

(1999), the D.C. Circuit embraced the Fifth Circuit's decision in

Vieux Carre. In Davenport, flight attendants sued their union alleg-

ing that it had violated the federa! labor laws by entering into an

interim labor agreement with an airline. The plaintiffs argued that

the airline could be joined under Rule 19. The D.C. Circuit re-

jected that argument. It did not dispute that the airline was a “nec-

essary party” to the suit as a signatory to the agreement with the

union. /d. at 366. Rather, it explained in detail that the airline had

not itself violated any statute, see id. at 361-65, and adopted the

Fifth Circuit's view that “while Rule 19 provides for joinder of

necessary parties, it does not create a cause of action against them,”

id. at 366.

Unlike the Ninth Circuit, the district court in that case refused

to permit the EEOC to proceed indirectly against a

government entity it could not sue directly. /¢. at 624.° The

district court in EEOC v. American Federation of Teachers,

Local No. 571, 761 F. Supp. $36, 537 (N.D. IIL 1991),

likewise rejected the EEOC’s attempt to litigate claims

against a school board by joining the board to a suit against a

teacher’s union. In fact, the court found the EEOC’s

arguments so lacking in merit that it awarded attorney's fees

to the school district, observing that the EEOC had attempted

the same ploy twice before in different courts within the

judicial district, each time to no avail. /d. at 540 (citing Elgin,

supra, and EEOC v. Oak Park Teachers’ Ass'n, 45 Fair Empl.

Prac. Cases 446 (N.D. Ill. 1985)). If left unreviewed, the

decision of the court of appeals in this case would permit the

EEOC to resume these discredited tactics anew in the courts

of the Ninth Circuit.

This Court’s intervention is moreover required because

the circuit conflict is both longstanding and intractable. The

split has existed since 1989 (see Vieux Carre, 875 F.2d at

456-57 (rejecting Tenth Circuit's reasoning and conclusion in

Hodel)) and — as evidenced by the Ninth Circuit's

acknowledgement in this case of the contrary positions of the

Fifth and D.C. Circuits, see Pet. App. |12a-l3a — has only

become more entrenched.

B. The Ninth Circuit’s Attempt To Distinguish

Contrary Precedents From Other Circuits Fails.

There is no merit to the Ninth Circuit's suggestion that

the cases rejecting its construction of Rule 19 might be

distinguishable on the ground that the plaintiffs there sought

not only joinder but also an express injunction against the

joined party. In Vieux Carre, the Fifth Circuit flatly

concluded that joinder — as opposed to an injunction — is

precluded when the plaintiff seeks to join the party in order to

obtain an adjudication Congress has precluded it from

obtaining directly. : The court dia not rely in any respect on

the fact that the plaintiffs also expressly sought injunctive

relief. To the contrary, it explained that Rule 19 may not be

used to circumvent the rule that “a private plaintiff has no

right to enjoin or sue a nonagency defendant for damages

under the RHA.” Vieux Carre, 875 F.2d at 457 (emphasis

added).’

Subsequent cases from within the Fifth and D.C. Circuits

confirm that those circuits’ precedents do not turn on the

types of relief sought. See, eg., Chavous v. District of

Columbia Fin. Responsibility and Mgmt. Assistance Auth.,

154 F. Supp. 2d 40 (D.D.C. 2001) (dismissing city from suit

against city’s control board and private hospital that sought to

void contract between those parties for transfer of public

hospital services; court explains that the city’s “motion to

dismiss the complaint against it also will be granted because

the plaintiffs have alleged no cognizable claim against” the

city); Hines v. Grand Casinos of Louisiana, LLC, 140 F.

Supp. 2d 701, 705 (W.D. La. 2001) (in discrimination case,

declining to join tribe as defendant and explaining that

“implicit in Rule 19 is the requirement that the plaintiff have

a viable cause of action against the party to be joined as a

defendant”; here, “[e}ven if defendant were to establish that

the Tribe was plaintiffs employer, plaintiff has no claim

against the Tribe under Title VII").

” The D.C. Circuit in Davenport did state that “[iJt is not

enough that plaintiffs ‘need’ an injunction against Northwest in

order to obtain full relief. They must also have a right to such an

injunction, and Rule 19 cannot provide such a right.” 166 F.3d at

366. But the court made that statement only after adopting the

Fifth Circuit's holding that plaintiffs may sue under Rule 19 only if

they can state a claim against the joined party, and the court's point

was that the plaintiff must have a “right” to bring the joined party

into the case, not that it was seeking an “injunction.”

The purported distinction identified by the Ninth Circuit

is, in any case, inapplicable here. The EEOC’s complaint in

this case broadly seeks an injunction against not only

peiitioner Peabody but also “all persons in active concert or

participation with it,” Compl. 4, ¢ A — language broad enough

to encompass the Navajo Nation. In fact, the EEOC has

expressly acknowledged that it ts seeking an injunction that

would prohibit the Navajo Nation from enforcing the NPEA

and its leases with petitioner. Dist. Ct. Trans. 28, reprinted in

SER 156 (EEOC seeks “to strike that provision from the lease

and order the Navajo Nation [not] to enforce that lease

provision against Peabody Coal” (emphasis added)). Beyond

the order sought directly against the Nation, the very point of

joining the Nation is to ensure that it is bound by a judgment

in the case by res judicata, an effect no different than an

injunction as a practical matter.

il. Certiorari Is Warranted In Light Of The Important

Sovereign Interests At Stake In The Relationship

Between Tribal Governments And The United States.

Certiorari would be warranted even in the absence of a

circuit split because the decision below has a “significant

impact on the relationship between Indian tribes and the

Government.” United States Department of the Interior v.

Klamath Water Users Protective Ass'n, 532 U.S. 1, 7 (2001).

See also Affiliated Ute Citizens of Utah v. United States, 406

U.S. 128, 141 (1972) (granting certiorari “because of the

importance of the issues for [certain] Indians”); Choctaw

Nation of Indians v. United States, 318 U.S. 423, 424 (1943)

(“We granted certiorari because the case was thought to raise

important questions concerning the relations between the two

tribes and the United States.”); County of Oneida v. Oneida

Indian Nation, 470 U.S. 226, 230 (1985) (granting certiorari

because of “the importance of the Court of Appeals’ decision

not only for the Oneidas, but potentially for many eastern

Indian land claims”).

The Ninth Circuit’s decision implicates the delicate

balance Congress has drawn between the interest of tribal

sovereigns in avoiding suit in federal court and the power of

federal agencies to enforce federal statutes. The case affects

not only the relationship between the tribes and the federal

government, but also the distribution of power among federal

agencies themselves, a distribution that was designed to

protect the interests of tribes and prevent unnecessary friction

between tribes and the United States. As discussed below, the

decision of the Ninth Circuit contravenes the careful balance

Congress struck.

Indian Tribes have a sovereign interest in avoiding not

only judgment, but also the indignity of being drawn before a

federal court except when and as authorized by Congress.

See Kiowa Tribe of Oklahoma v. Mfg. Techs., 523 U.S. 751,

754 (1998) (tribes enjoy sovereign immunity to suit, absent

waiver by tribe or abrogation by Congress); cf. Federal

Maritime Comm'n v. South Carolina State Ports Auth., 535

U.S. 743, 766 (2002) (sovereign immunity is an immunity

from suit, not simply defense to liability). Accordingly, any

delay in the resolution of the EEOC’s authority to litigate

claims against tribes through the device of Rule 19 joinder

will not only impose substantial injury to the sovereignty

interests of the nation’s largest Indian tribe, but will risk

similar affronts to the many other tribes that fall within the

expansive jurisdiction of the Ninth Circuit. See Pet. for Cert.

27, United States Dep't of Interior v. Klamath Water Users

Protective Ass'n, 530 U.S. 1304 (2000) (No. 99-1871) (urging

court to grant certiorari despite lack of circuit split because

“(t]he Ninth Circuit contains approximately 62% (28 million

out of 45.5 million acres) of the lands held by the United

States in trust for Tribes and individual Indians, and 400 of

the 556 federally recognized Tribes are within that Circuit”);

530 U.S. 1304 (2000) (granting certiorari).

Ill. Rule 19 May Not Be Used To Circumvent Restrictions

Congress Has Placed On A Party’s Right To Sue An

Absent Party Directly.

There is no dispute that the EEOC is prohibited from

bringing an action directly against the Nation to challenge the

legality of the Nation's preference requirement. See supra at

4. ‘Although Congress designated the EEOC as the primary

government enforcer of Title VII for most purposes, it

specifically assigned authority to sue governments (including

Indian tribes) to the Attorney General. 42 U.S.C. 2000e-

S(f)'1). Permitting the EEOC to nonetheless obtain an

adjudication against the Nation through Rule 19 joinder

would impermissibly allow the Commission “to circumvent

congressional intent by a mere pleading device.” Will v.

Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

A. Congress Clearly Prohibited the EEOC From

Litigating Disputes With Indian Tribes.

In enacting Title VII, Congress crafted a detailed

enforcement scheme under which litigation with sovereigns

shall be controlled and conducted by the Attorney General,

not the EEOC. Those restrictions apply whether the litigation

is conducted directly through a suit against the Tribe or

indirectly through a suit in which the Tribe is joined as an

involuntary defendant.

!. Plain Language of Title Vil

The EEOC’s actions in this case are, for all practical

purposes, indistinguishable from filing a suit for a declaratory

judgment against the Nation directly. Whether it sues the

Nation directly or joins it under Rule 19, both the purpose and

the effect of the EEOC’s suit are to haul the Nation before a

federal court to obtain a binding adjudication of the legality of

the Nation’s preference requirement. Indeed, the EEOC

admitted as much below. See supra at 6.

But the plain language of Title VII prohibits the EEOC

from seeking to resolve Title VII disputes with Indian tribes

in court. Section 2000e-5(f)(1) commands that if the EEOC

is unable to resolve its differences with a government entity

through conciliation, “the Commission shall take no further

action and shall refer the case to the Attorney General who

may bring a civil action against such respondent in the

appropriate United States district court” (emphases added).

This provision makes clear that the discretion to bring a civil

action lies with the Attorney General, and not the EEOC.

Moreover, whether the Attorney General decides to bring a

case or not, the EEOC is plainly prohibited from taking any

“further action” in the dispute, a phrase that clearly

encompasses efforts to join a tribe to an existing case.

In the district court, the EEOC argued that the limitations

in Section 2000c-5(f)(1) do not apply to this suit because the

EEOC seeks to litigate claims against the Nation in its

capacity as a contracting authority, rather than in its capacity

as an employer. Subsection (f), the Agency argued, governs

suits only against a government “respondent,” which is

defined in the statute as an “employer” against whom a claim

of discrimination is made. See 42 U.S.C. 2000e-5(f)(1).

Moreover, the Commission argued, a tribe 1s specifically

excluded from the definition of “employer.” See id.

§ 2000e(b). Accordingly, because a tribe cannot be an

employer or a “respondent” within the meaning of Title VII,

the EEOC reasoned, the restrictions on the EEOC’s authority

in Section 2000e-5(f)(1) are inapplicable.

The district court rejected that argument, see Pet. App.

36a-37a, and the Ninth Circuit did not disturb its

understanding of the statute. If the Nation is not a

“respondent” for purposes of Section 2000e-5(f)(1)’s

restrictions, it is also not a “respondent” for purposes of the

Section’s authorization for EEOC litigation. See 42 U.S.C.

2000e-5(f)(1) (“[T]he Commission may bring a civil action

against any respondent not a government * * *.” (emphasis

added)). And if the EEOC’s litigation with the Nation is not

authorized by Section 2000e-5(f), then the action is not

authorized at all.” No provision other than Section 2000e-5(f)

authorizes the EEOC to litigate claims against the Nation.’

The authority to litigate against entities that do not meet the

definition of “respondent” or “employer” is provided in

Section 2000e-6, which authorizes the Attorney General to

bring an action against “any person or group of persons [that]

is engaged in a pattern or practice of resistance to the full

enjoyment of any of the rights secured by this subchapter.”

While much of this broader authority was subsequently

transferred to the EEOC, see Section 2000e-6(d), the power to

bring pattern and practice cases against a government entity

was retained by the Attorney General, see Reorganization

Plan No. | of 1978, reprinted in 92 Stat. 3781 (1978); United

States v. Fresno Unified Sch. Dist., 592 F.2d 1088, 1090-92

(CA9 1979) (discussing history of re-assignment).

Finally, even if the EEOC could lay claim to an implied

authority to litigate its claims against the Nation outside of the

* Absent authorization from Congress, a federal agency has no

inherent authority to iitigate claims in federal court. See, e.g.,

United States v. City of Philadelphia, 644 F.2d 187, 198 (CA3

1980). Particularly when Congress has created an express and

comprehensive enforcement scheme, further /itigating authority

beyond the terms provided in the statute cannot be implied. See

ibid.

* In the district court, the EEOC attempted to find an unre-

stricted source of authority in the introductory paragraph of Section

2000e-5, which provides that the “Commission is empowered, as

hereinafter provided, to prevent any person from engaging in any

unlawful employment practice as set forth in section 2000e-2 or

2000e-3 of this title.” 42 U.S.C. 200Ge-5(a) (emphasis added). But

that authority must, by the provision’s plain terms, be exercised “as

hereinafter provided.” Among the things Congress “hereinafter

provided” was that in the case of government entities, the EEOC

shall “prevent any person from engaging in an unlawful employ-

ment practice” through referrals to the Attorney General, not

through independent litigation.

express terms of Title VII, surely that implied authority is

subject to the same limitations imposed on its express

statutory authority. As discussed below, a_ contrary

interpretation would be completely incompatible with the

purposes for which litigation with government entities has

been reserved to the Attorney General.

2. Purposes

Permitting the EEOC to invoke Rule 19 to litigate claims

against an Indian tribe is plainly inconsistent with the reasons

that led Congress to prohibit the EEOC from bringing such

claims directly. The division of litigating authority between

the EEOC and Attorney General reflects the special status of

suits between the United States and other sovereigns as well

as important differences between the EEOC and the Attorney

General.

Under our constitutional system, state and local

governments “are not relegated to the role of mere provinces

or political corporations, but retain the dignity, though not the

full authority, of sovereignty.” Alden v. Maine, 527 U.S. 706,

715 (1999). Indian tribes likewise enjoy a special sovereign

status under our constitutional system, forming “‘domestic

dependent nations’ that exercise inherent sovereign authority

”

over their members and territories.” Oklahoma Tax Comm'n

v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509

(1991). Suits against such sovereigns are not lightly

permitted. See, e.g., Dellmuth v. Muth, 491 U.S. 223, 227-28

(1989) (requiring clear statement of congressional intent to

subject State to suit); C & L Enters. v. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418

(2001) (same for Indian tribe).

It is thus unsurprising that when Congress revised Title

VII to permit suits against government employers in 1972, it

did so with the reservation that such suits would be instituted

only by the Attorney General rather than the EEOC. The

Commission is an independent agency with an important, but

circumscribed, mission. See 42 U.S.C. 2000e-4. The

Attorney General, on the other hand, is a_ presidential

appointee with broad responsibilities who serves at the

pleasure of the President. Congress thus clearly contemplated

that litigation against sovereigns should be undertaken by

those with greater political accountability than can be

expected from the EEOC which is, by design, insulated from

political oversight.

Placing litigating authority in the hands of the Attorney

General also reflects that the federal government’s

relationship with government entities, including tribes, is

more complex than with ordinary Title VII defendants. States

and tribes are not only employers, but also grant recipients,

co-operating law enforcement agencies, and frequently

entities subject to regulation by administrative agencies. It is

especially important in this context for the federal

government to speak with one voice, informed by

consultation with the wide range of government agencies that

have a role in the United States’s relationship with other

sovereigns.

The general means by which Congress assures uniformity

in the federal government’s interpretation of federal statutes is

by assigning to the Attorney General the dual responsibilities

for conducting the Government's litigation and providing

authoritative guidance to agencies on the meaning of federal

law. See 28 U.S.C. 512, 516; 28 C.F.R. 0.25(a) (describing

duties of Office of Legal Counsel within the Department of

Justice). Particularly relevant to this case, the Department of

Justice serves as the Department of Interior’s lawyer,

representing it in litigation over mineral leases and providing

legal advice to the agency as it administers its responsibility

to review and approve lease provisions. See 25 U.S.C. 396a,

396e; 28 U.S.C. 512. Accordingly, in deciding whether to

approve the challenged preference provision in this case, the

Department of Interior was entitled to seek a legal opinion

from the Attorney General. See 28 U.S.C. 512. And if it

came to doubt whether that approval was proper in light of

the EEOC’s new interpretation of Title VII, the Department

could at any time request a legal opinion on the question from

the Office of Legal Counsel in the Department of Justice. See

28 C.F.R. 0.25(a). The Attorney General would, moreover,

represent the Department of Interior in any litigation arising

from a dispute between the Department and the Nation were

the Department to require a change in the lease. 28 U.S.C.

516.

The consequences of permitting the EEOC to nonetheless

pursue its own interpretation of Title VII in litigation with an

Indian tribe are amply illustrated by the facts of this case.

The disputed preference terms in this case were subject to

review by — and were in fact approved by — the Department of

Interior. See Pet. App. 30a, 45-46a. Indeed, the district court

noted that the preference provisions were originally “drafted

by the United States Secretary of Interior or his authorized

representative and presented to [petitioner’s predecessor in

interest} with no meaningful opportunity to bargain over the

employment preference term.” /d. 29a. The leases have

since been modified and extended with the Department’s

approval. /bid. At no time has the Department sought to

rescind approval of the leases or otherwise seek their

reformation. /d. 46a. Nor has the Department enacted

regulations prohibiting such preference terms. At the same

time, the Attorney General apparently has never issued a legal

opinion concluding that such preferences are illegal or

instituted litigation against an Indian tribe seeking to prevent

their enforcement. Under these circumstances, the Nation and

petitioner should be entitled to rely on the continuing validity

of the federally approved preference provisions unless and

until appropriate action is taken by the Department of Interior

and/or Department of Justice.

Nonetheless, the EEOC has sued petitioner, seeking

substantial compensatory and punitive damages because

petitioner has done nothing more than comply with the terms

of the lease the Department of Interior approved. Rather than

attempting to coordinate its position with the Department of

Interior and Department of Justice through appropriate inter-

agency channels, the EEOC has sought to challenge the

Interior-approved lease provisions in court. Those attempts

have already imposed seriously unfair consequences on

petitioner, which has relied on the Department of Interior

approval in implementing the preference provision.'”

Congress could have resolved this potential for conflict

in a number of ways. It could have provided the EEOC

exclusive interpretative authority over Title VII by giving it

sole authority to pursue Title VII litigation and to resolve

questions regarding the statute arising during the course of

other agencies’ administrative duties. But Congress clearly

rejected that solution, vesting litigating authority instead with

the Attorney General. See 42 U.S.C. 2000e-5(f)(1), 2000e-6.

In the alternative, Congress could have subjected the EEOC’s

litigation to supervision by the Attorney General, the general

mechanism by which Congress has assured that the federal

government speaks with one voice in the federal courts. See

28 U.S.C. 516. But that would have sacrificed a measure of

the EEOC’s independence, an independence Congress

thought important in order for the EEOC to carry out its

mission.

Instead, Congress chose another approach, carefully

carving out for the Attorney General the particular class of

Title VII cases for which it was essential to ensure a

coordinated federal position with respect to the rights and

obligations of government entities, including Indian tribes.

case, then in others. The Attorney General is responsible not only

for representing the interests of the Department of Interior in court,

28 U.S.C. 516, but also frequently participates in litigation to pro-

tect the interests of tribes. See, e.g., Wilson v. Omaha Indian Tribe,

442 U.S. 653, 657 (1979); see also 28 C.F.R. 0.65(b). Allowing the

EEOC to sue a tribe based on a legal theory the Department of Inte-

rior and Attorney General reject could foreseeably lead to the em-

barrassment of the federal government appearing on both sides of

the same case in federal court.

Permitting the EEOC to nonetheless litigate claims

against an Indian tribe through the mechanism of a Rule 19

joinder is completely incompatible with the carefully

calibrated solution Congress enacted. The Ninth Circuit's

ruling approving the EEOC’s position raises the same

prospect for drawing courts into inter-agency conflicts, and

creates the same unfairness to tribes and their contracting

partners, as the direct suit that even the EEOC acknowledges

it is prohibited from bringing.

3. Statutory Provisions Limiting Suits Against

Government Entities Must Be Strictly Enforced.

The same sovereignty interests that led Congress to

assign to the Attorney General the decision whether and how

to litigate Title VII claims against government entities also

require strict enforcement of the limitations on such suits

established by the statute.

It is well established that “an Indian tribe is subject to

suit only where Congress has authorized the suit or the tribe

has waived its immunity.” Kiowa Tribe of Oklahoma v. Mfg.

Techs., 523 U.S. 751, 754 (1998). While Congress has

plenary authority to remove that immunity, courts will

assume that the immunity is intact unless Congress has made

its decision to abrogate the tribes’ immunity abundantly clear.

See C & L Enters., Inc. v. Citizen Band Potawatomi Indian

Tribe of Oklahoma, 532 U.S. 411, 418 (2001) (“To abrogate

tribal immunity, Congress must ‘unequivocally’ express that

purpose.”). Suits against States are likewise precluded absent

express Congressional authorization. See, e.g., Dellmuth v.

Muth, 491 U.S. 223, 227-28 (1989)

It is also within Congress’s power to impose limits or

conditions on suits against States and tribes, and when it does

so, those limits and conditions must be respected. See, e.g.,

Kiowa Tribe, 523 U.S. at 759. Strict adherence to such

limitations is required both in order to respect Congress's

intentions and to protect the tribe’s right to have its immunity

removed only in the manner approved by Congress.

To be sure, as the Ninth Circuit observed, a tribe may not

invoke sovereign immunity against the United States itself.

Pet. App. 10a. But whether and how the federal government

has power to sue a tribe is a matter for Congress to determine.

Just as Congress may decline to permit private individuals to

sue tribes, so too it may preclude the executive branch from

suing a tribe, or it may prescribe conditions and procedures

for such suits. And just as the limitations imposed by

Congress for private suits against tribes must be strictly

adhered to, the conditions and procedures Congress

establishes for federal government suits must also be strictly

enforced.

B. Rule 19 May Not Be Used To Circumvent Limits

Congress Has Established On A Party’s Ability

To Sue.

Because Congress has clearly withheld from the EEOC

the right to adjudicate claims against Indian tribes, the EEOC

is likewise precluded from relying on Rule 19 to seek to

litigate the same claims with a tribe.

As the text of Rule 19 reflects, there are occasions on

which an otherwise necessary party “cannot be made a party.”

Fed. R. Civ. P. 19(b). Rule 19 does not itself purport to be

the source of the barriers to joinder, but rather simply

acknowledges that other sources of substantive law may

preclude the joinder of a party to a particular case in some

circumstances. Thus, the rule acknowledges that 28 U.S.C.

1332 precludes joinder of a party when doing so would

destroy the diversity of citizenship upon which a court’s

subject matter jurisdiction is based. Fed. R. Civ. P. 19(a).

Other substantive barriers to joinder are not mentioned

specifically in the Rule. For example, as the Ninth Circuit

and other courts have held, a court may not join an Indian

tribe to a case when Congress has not authorized a suit

against the tribe, because doing so would vitiate the tribe’s

common law immunity from suit. See, e.g., Dawavendewa v.

Salt River Project Agr. Improvement & Power Dist., 276 F.3d

1150, 1153 (CA9 2002)."'

Common law immunities are simply one way in which

the law precludes a plaintiff from adjudicating a claim against

a particular party. Congress may also forbid such suits by

assigning the responsibility for adjudicating such claims to

someone else, often the government, or in this case a

particular agency within the government. Thus, when

Congress declines to authorize a private right of action, it

makes clear its intent that the obligations imposed by the law

shall be enforced only in a particular matter. Rule 19 may no

more be used to circumvent this prohibition than it may be

used to avoid a claim of immunity from suit. See Vieux

Carre, 875 F.2d at 456-58. Similarly, in this case, the EEOC

may not use Rule 19 to avoid Congress’s restrictions on its

authority to sue an Indian tribe.

To conclude otherwise draws Rule 19 into conflict with

the Rules Enabling Act, 28 U.S.C. 2072(b). “[N]o reading of

the Rule can ignore the Act’s mandate that rules of procedure

‘shall not abridge, enlarge or modify any substantive right.”

Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999)

(citations and internal quotation marks omitted). “The test

must be whether a rule really regulates procedure[] — the

judicial process for enforcing rights and duties recognized by

substantive law and for justly administering remedy and

redress for disregard or infraction of them.” Hanna v.

Plumer, 380 U.S. 460, 464 (1965) (internal quotation marks

'' Like state sovereign immunity, which is “a sovereign im-

munity from suit, rather than a nonwaivable limit on the federal

judiciary’s subject-matter jurisdiction,” /duho v. Coeur D'Alene

Tribe, 521 U.S. 261, 267 (1997), tribal immunity does not affect the

subject matter jurisdiction of the federal courts. See, e.g, Ninigret

Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207

F.3d 21, 28 (CAI 2000); Kreig v. Prairie Island Dakota Sioux (In

re Prairie Island Dakota Sioux), 2\ F.3d 302, 304 (CA8 1994) (per

curiam).

omitted). Whether a tribe may be subjected to an

adjudication of its rights and obligations, and at whose

insistence, is a question of substantive law, one that must be

resolved by Congress. See Alexander v. Sandoval, 532 U.S.

275, 286 (2001) (“Like substantive federal law itself, private

rights of action to enforce federal law must be created by

Congress.”). There would be little doubt, for example, that a

Rule could not establish a private right to enforce a statute

that does not, itself, contemplate private enforcement. Cf. id.

at 289-91 (when Congress authorized agency to promulgate

regulations to “effectuate” statutory requirements, regulations

may not themselves create a private right of action). Nor

could the Rules authorize the EEOC to litigate claims against

an Indian tribe when Congress has assigned that authority to

someone else. Cf. Semtek Int'l Inc. v. Lockheed Martin

Corp., 531 U.S. 497, 503 (2001) (interpreting Rules to govern

preclusive effect of federal judgment “would arguably

violate” Enabling Act’s prohibition against modification of

substantive rights); Ortiz, 527 U.S. at 842 (adopting a

“limiting construction” of class action rule to “minimize[]

potential conflict with the Rules Enabling Act’).

Hence, when Congress has precluded one party from

directly adjudicating a claim against another, that prohibition

may not be circumvented by adverting to Rule 19. This

principle applies whether the barrier to direct suit arises from

a lack of jurisdiction (personal or subject matter), because the

absent party enjoys an immunity to a direct suit, or because

Congress has assigned the right to adjudicate the issue with

the absent party to another, either by declining to create a

private right of action (see Vieux Carre, 875 F.2d at 456-58)

or, as here, by assigning enforcement responsibilities to a

specific federal agency to the exclusion of another.

Contrary to the Ninth Circuit's opinion, see Pet. App.

13a, petitioner’s view is consistent with decisions such as

General Building Contractors Ass'n v. Pennsylvania, 458

U.S. 375, 399 (1982),"? In that case, this Court held that an

innocent employer could be joined and subject to a

modification of its contract with a union if necessary to

remedy the union’s history of race discrimination in violation

of 42 U.S.C. 1981. 458 U.S. at 400-01. There was nothing in

Section 1981 or any other federal statute that indicated that

Congress intended to protect innocent employers from such

adjudications or obligations, or limit the class of parties who

could seek such relief. In contrast, Congress has made clear

in this case that any Title VII litigation seeking a modification

of the rights and responsibilities of an Indian tribe must be

prosecuted by the Attorney General

Nor does petitioner’s position conflict with other

ordinary uses of Rule 19 approved in this Court's prior cases.

For example, in Martin v. Wilks, 490 U.S. 755, 763-65

(1989), this Court indicated that Rule 19 would apply to

permit the joinder of white firefighters to a _ race

discrimination suit by their African American colleagues

against the fire department. Joinder would permit the white

firefighters to object to any proposed remedy in the case that

might adversely affect their employment rights. Petitioner’s

view does not preclude joinder in such cases. The joinder of

parties who might have grounds to object to the relief

requested by the plaintiff is, in essence, the equivalent of a

declaratory judgment action by the plaintiff against the absent

party to resolve those objections. So long as there would be

no impediment to the plaintiff bringing that request for a

declaratory judgment directly against the absent party, Rule

19 permits the joinder. However, when the plaintiff is

precluded from bringing a direct action — when, for example,

the absent party is a State or an Indian tribe that enjoys

'? See also Zipes v. TWA, 455 U.S. 385, 399-400 (1982); In-

ternational Brotherhood of Teamsters v. United States, 431 U.S.

324, 356 n.43 (1977); EEOC v. MacMillan Bloedel Containers,

Inc., 503 F.2d 1086, 1095-96 (CA6 1974).

immunity from suit — the plaintiff cannot achieve the

prohibited result indirectly through Rule 19 joinder.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Jeffery L. Klinger Thomas C. Goldstein

PEABODY WESTERN COAL (Counsel of Record)

COMPANY Amy Howe

70) Market Street Kevin K. Russell

St. Louis, MO 63101 GOLDSTEIN & Howe, P.C.

4607 Asbury Place, N.W.

Washington, DC 20016

(202) 237-7543

September 15, 2005

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 02-17305

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

PEABODY WESTERN COAL COMPANY,

Defendant-Appellee

March 3, 2005, Resubmitted

March 10, 2005. Filed

COUNSEL: Benjamin N. Gutman (Argued), EEOC,

Washington, D.C., Ralph E. Chamness, Katherine Kruse

EEOC, Phoenix, Arizona, for the plaintiff-appellant

Lawrence Jay Rosenfeld, Mary E. Bruno, John F. Lomax,

Jr., Greenberg Traurig, Phoenix, Arizona, for the defendant-

appelice.

JUDGES: Before: Procter Hug, Jr., Arthur L. Alarcon,

and William A. Fletcher, Circuit Judges. Opinion by Judge

William A. Fletcher

OPINION

W. FLETCHER, Circuit Judge

Ihe Equal Employment Opportunity Commission

(“EEOC”) filed this action against Peabody Western Coal

Company (“Peabody”) for maintaining a Navajo hiring

preference at the mines that Peabody leases from the Navajo

Nation. The EEOC alleges that Peabody has discriminated

against non-Navajo Native Americans, including two

members of the Hopi Nation and one member of the Oioe

tribe, in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1).

On appeal, we are presented with three questions. The

first is whether, under Federal Rule of Civil Procedure 19, it

is feasible to join the Navajo Nation as a party. We hold that

it is feasible to join the Nation in order to effect complete

relief between the parties. Because the EEOC is an agency of

the United States, the Navajo Nation cannot assert its

sovereign immunity as a defense to joinder. The second is

whether the EEOC’s claim presents a nonjusticiable political

question. We hold that it does not. The third is whether the

district court erred in dismissing the EEOC’s claim that

Peabody failed to keep records as required by Title VII, 42

U.S.C. § 2000e-8(c). We hold that it did. We reverse and

remand for further proceedings.

1. Background

Peabody mines coal at the Black Mesa Complex on the

Navajo and Hopi reservations in northeastern Arizona. It does

SO pursuant to leases with the tribes entered into by Peabody’s

predecessor-in-interest, the Sentry Royal Company

(“Sentry”). Sentry entered into two leases with the Navajo

Nation: a 1964 lease allowing it to mine on the Navajo

Nation’s reservation (lease no. 8580), and a 1966 lease

allowing it to mine on the Navajo portion of land set aside for

joint use by the Navajo and Hopi Nations (lease no. 9910).

Both leases contain provisions requiring that preference in

employment be given to members of the Navajo Nation. The

1964 lease provides that Peabody “agrees to employ Navajo

Indians when availabie in all positions for which, in the

judgment of [Peabody], they are qualified,” and that Peabody

“shall make a special effort to work Navajo Indians into

skilled, technical, and other higher jobs in connection with

[Peabody's] operations under this lease.” The 1966 lease

contains a similar provision, but also specifies that Peabody

may “at its option extend the benefits of this Article

[containing the Navajo employment preference] to Hopi

Indians.” The record indicates that the language of the Navajo

employment preferences remains unchanged and does not

show that the preference has been extended to members of the

Hopi Nation.

Pursuant to the Indian Mineral Leasing Act of 1938

(“IMLA”), the Department of Interior has approved both the

leases, as well as subsequent amendments and extensions. See

25 U.S.C. §§ 396a, 396e; see also United States v. Navajo

Nation, 537 U.S. 488, 493 (2003) (explaining that the

Department of the Interior’s approval is necessary before the

leases become effective). If the lease terms are violated, the

Navajo Nation and the Department of the Interior (“DOI”)

retain the power to cancel the leases after a notice and cure

period.

In June 2001, the EEOC filed this action in District Court

for the District of Arizona, alleging that Peabody was

unlawfully discriminating on the basis of national origin by

implementing the Navajo employment preference.

Specifically, the EEOC’s complaint charged that Peabody had

refused to hire non-Navajo Native Americans — two members

of the Hopi and one now-deceased member of the Otoe tribe,

as well as unspecified other non-Navajo Native Americans —

for positions for which they were otherwise qualified. The

EEOC argued that such conduct violated 42 U.S.C. § 2000e-

2(a(1), which prohibits employers from refusing to hire

applicants because of their national origin. The complaint

further alleged that Peabody had violated the record-keeping

requirements of § 2000e-8(c).

Questions arising out of transactions, including coal

mining leases, on the Navajo and Hopi reservations and on

the tribes’ joint land have been extensively litigated. See, e.g.,

Navajo Nation, 537 U.S. at 493-513 (rejecting claim by

Navajo Nation that the Secretary of the Interior breached

fiduciary duties owed to the Nation by approving the coal

leases); Peabody Coal Co. v. Navajo Nation, 373 F.3d 945,

946 (9th Cir. 2004) (holding that the court lacked jurisdiction

to enforce arbitration settlement agreement about lease

royalty rates): see also Clinton v. Babbitt, 180 F.3d 1081,

1083-86 (9th Cir. 1999) (describing the lengthy dispute

between Navajo and Hopi Nations over joint use land in

Arizona); Navajo Nation v. Peabody Holding Co., 209 F.

Supp. 2d 269, 275-76 (D.D.C. 2002) (describing history of

amendments to the leases in a RICO suit by the tribe against

Peabody).

Navajo employment preference provisions also have been

the subject of prior litigation. See Dawavendewa v. Salt River

Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1163 (9th

Cir. 2002) (“Dawavendewa IT"); Dawavendewa v. Salt River

Agr. Imp. & Power Dist., 154 F.3d 1117, 1124 (9th Cir. 1998)

(“Dawavendewa I’). In Dawavendewa I, we interpreted the

Indian preference exception of Title VII, § 2000e-2(i), to

permit discrimination in favor of Indians living on or near a

reservation, but not to permit discrimination against Indians

belonging to other tribes. /d. at 1124. On remand to the

district court, the private contractor defendant moved to

dismiss the case for failure to join the Navajo Nation as an

indispensable party under Federal Rule of Civil Procedure

19(b).

In Dawavendewa I/, 276 F.3d at 1153, we agreed with

the district court that the Navajo Nation was an indispensable

party. We held that “as a signatory to the lease . . . the Nation

is a necessary party that cannot be joined because it enjoys

tribal sovereign immunity.” /d. We noted when balancing the

factors to determine whether the Nation was an indispensable

party that the plaintiff

may have a viable alternative forum in which to

seek redress. Sovereign immunity does not apply in

a suit brought by the United States. Moreover,

recently, in EEOC v. Karuk Tribe Housing

Authority, 260 F.3d 1071, 1075 (9th Cir. 2001), we

held that because no principle of law ‘differentiates

a federal agency such as the EEOC from the United

States itself,’ tribal sovereign immunity does not

apply in suits brought by the EEOC.

Id. at 1162-63. When the EEOC moved “at the eleventh hour”

to intervene, we denied the motion. We observed, however,

“that nothing precludes Dawavendewa from refiling his suit

in conjunction with the EEOC.” /d. at 1163.

In June 2002, the EEOC brought the present action,

alleging intertribal discrimination as in Dawavendewa I and

Dawavendewa Il. In February 2002, Peabody moved for

summary judgment under Federal Rule of Civil Procedure 56

and for dismissal of the action under Federal Rules of Civil

Procedure 12(b)(7) and 12(b)(1). Peabody neither admitted

nor denied that it had discriminated against non-Navajo

Native Americans in violation of Title VII. Instead, Peabody

asserted that Rule 19 required dismissal because the Navajo

Nation was a necessary and indispensable party. Peabody also

asserted that the issue of the legality of this lease provision

was a nonjusticiable political question, on the theory that

because the DOI had approved the mining leases, the court

would have to make an “initial policy choice” between the

positions of the DOI and the EEOC.

The district court held that it was not feasible to join the

Navajo Nation, and that the Nation was not only a necessary

but also an indispensable party. In the alternative, it found the

legality of the Navajo employment preference in the lease to

be a nonjusticiable political question. The district court

dismissed the entire action, including the EEOC’s record-

keeping claim. The EEOC timely appealed. We reverse and

remand for further proceedings.

If. Discussion

A. Joining the Navajo Nation Under Rule 19

Rule 19 goverrs compulsory party joinder in federal

district courts. The district court held that it was not feasible

to join the Navajo Nation because, under Title VII, the EEOC

cannot directly sue the Nation. See 42 U.S.C. § 2000e(b)\(1)

(exempting Indian tribes from the statutory definition of

“employer’); see also Dawavendewa II, 276 F.3d at 1159 n.9

(observing that “pursuant to § 2000e(b), Indian tribes are

specifically exempt from the requirements of Title VII”).

Although the district court decided the issue on a motion for

summary judgment, we construe the motion as one to dismiss

for failure to join an indispensable party under Rule 1|2(b)(7).

See Dredge Corp. v. Penny, 338 F.2d 456, 463-64 (9th Cir.

1964) (explaining that dismissal for failure to join a party

must be decided on a motion to dismiss, not summary

judgment). We review de novo the district court’s legal

conclusion that it is not feasible to join the Navajo Nation.

United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999)

(explaining that although “generally, we review a district

court’s decision regarding joinder for abuse of discretion{[,] . .

. . we review legal conclusions undet-ying that decision de

novo’’) (internal citation and quotation marks omitted).

We hold that the Navajo Nation is a necessary party

under Rule 19. We hold, further, that where the EEOC asserts

a cause of action against Peabody and seeks no affirmative

relief against the Nation, joinder of the Nation under Rule 19

is not prevented by the fact that the EEOC cannot state a

cause of action against it. Because the EEOC is an agency of

the United States, the Nation cannot object to joinder based

on sovereign immunity, as we noted in Dawavendewa II. 276

F.3d at 1162-63. We therefore hold that joinder of the Nation

is feasible.

1. Rule 19

In relevant part, Rule 19(a) provides that

[a] person who is subject to service of process and

whose joinder will not deprive the court of

jurisdiction over the subject matter of the action

shall be joined as a party in the action if (1) in the

person’s absence complete relief cannot be

accorded among those already parties, or (2) the

person claims an interest relating to the subject of

the action and is so situated that the disposition of

the action in the person’s absence may (i) as a

practical matter impair or impede the person’s

ability to protect that interest or (ii) leave any of the

persons already parties subject to a substantial risk

of incurring double, multiple, or otherwise

inconsistent obligations by reason of the claimed

interest. . . . If the joined party objects to venue and

joinder of that party would render the venue of the

action improper, that party shall be dismissed from

the action.

Rule 19(b) provides that if it is not feasible for the court to

join a person meeting the requirements of Rule 19(a), the

court

. Shall determine whether in equity and good

conscience the action should proceed among the

parties before it, or should be dismissed, the absent

person being thus regarded as indispensable. The

factors to be considered by the court [in determining

whether a party is indispensable] include: first, to

what extent a judgment rendered in the person’s

absence might be prejudicial to the person or those

already parties; second, the extent to which, by

protective provisions in the judgment, by shaping of

relief, or other measures, the prejudice can be

lessened or avoided; third, whether a judgment

rendered in the person’s absence will be adequate;

fourth, whether the plaintiff will have an adequate

remedy if the action is dismissed for nonjoinder.

Applying these two parts of Rule 19, there are three

successive inquiries. Bowen, 172 F.3d at 688 (describing Rule

19’s “three-step process”). First, the court must determine

whether a nonparty should be joined under Rule 19(a). We

and other courts use the term “necessary” to describe those

“persons to be joined if feasible.” Fed. R. Civ. P. 19(a); see

also Disabled Rights Action Committee v. Las Vegas Events,

Inc., 375 F.3d 861, 867 n.5 (9th Cir. 2004) (explaining that

the term “necessary” is a “term{] of art in Rule 19

jurisprudence”); Bowen, 172 F.3d at 688. If understood in its

ordinary sense, “necessary” is too strong a word, for it is still

possible under Rule 19(b) for the case to proceed without the

joinder of the so-called “necessary” absentee. In fact, Rule

19a) “defines the persons whose joinder in the action is

desirable” in the interests of just adjudication. Fed. R. Civ. P.

19 Advisory Committee Note (1966) (emphasis added); see

also Bowen, 172 F.3d at 688. Absentees whom it is desirable

to join under Rule | 9(a) are “persons having an interest in the

controversy, and who ought to be made parties, in order that

the court may act{.)"” Shields v. Barrow, 58 U.S. (17 How.)

130, 139 (1854).

If an absentee is a necessary party under Rule 19(a), the

second stage is for the court to determine whether it is

feasible to order that the absentee be joined. Rule 19(a) sets

forth three circumstances in which joinder is not feasible:

when venue is improper, when the absentee is not subject to

personal jurisdiction, and when joinder would destroy subject

matter jurisdiction. See Fed. R. Civ. P. 19(a); see also Tick v.

Cohen, 787 F.2d 1490, 1493 (11th Cir. 1986) (listing the three

factors that may make joinder unfeasible).

Finally, if joinder is not feasible, the court must

determine at the third stage whether the case can proceed

without the absentee, or whether the absentee is an

“indispensable party” such that the action must be dismissed.

As the Advisory Committee Note explains, Rule 19 uses “the

word ‘indispensable’ only in a conclusory sense, that is, a

person is ‘regarded as indispensable’ when he cannot be made

a party and, upon consideration of the factors [in Rule 19(b)},

it is determined that in his absence it would be preferable to

dismiss the action, rather than to retain it.” Fed. R. Civ. P. 19

Advisory Committee Note (1966). Indispensable parties

under Rule 19(b) are “persons who not only have an interest

in the controversy, but an interest of such a nature that a final

decree cannot be made without cither affecting that inierest,

or leaving the controversy in such a condition that its final

termination may be wholly inconsistent with equity and good

conscience.” Shields, 58 U.S. at 139.

2. The Navajo Nation as a Necessary Party

The EEOC and Peabody agree, as they did in district

court, that the Navajo Nation is a necessary party under Rule

19(a)(1) because the Nation is a party to the lease with

Peabody. For the sake of clarity, we explain why we also

agree. Rule 19(a) is “concerned with consummate rather than

partial or hollow relief as to those already parties, and with

precluding multiple lawsuits on the same cause of action.”

Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030,

1043 (9th Cir. 1983) (citing Advisory Committee’s Note Fed.

R. Civ. P. 19 (1966)). As in Dawavendewa I], 276 F.3d at

1156, the Nation is a signatory to lease provisions that the

plaintiff challenges under Title VII. The EEOC seeks

declaratory, injunctive, and monetary relief. If the EEOC is

victorious in its suit against Peabody, monetary damages for

the charging parties can be awarded without the Nation’s

participation. But declaratory and injunctive relief could be

incomplete unless the Nation is bound by res judicata. The

judgment will not bind the Navajo Nation in the sense that it

will directly order the Nation to perform, or refrain from

performing, certain acts. But it will preclude the Nation from

bringing a collateral challenge to the judgment. If the EEOC

is victorious in this suit but the Nation has not been joined,

the Nation could possibly initiate further action to enforce the

employment preference against Peabody, even though that

preterence would have been held illegal in this litigation.

Peabody would then be, like the defendant in Dawavendewa

I1, 276 F.3d at 1156, “between the proverbial rock and a hard

place — comply with the injunction prohibiting the hiring

preference policy or comply with the lease requiring it.” By

similar logic, we have elsewhere found that tribes are

necessary parties to actions that might have the result of

directly undermining authority they would otherwise exercise.

See Pit River Home v. United States, 30 F.3d 1088, 1092 (9th

10a

Cir. 1994) (Pit River Tribal Council was a necessary party in

suit challenging its designation by the Secretary of Interior as

the beneficiary of reservation property); Confederated Tribes

of Chehalis Reservation v. Lujan, 928 F.2d 1496, 1497 (9th

Cir. 1991) (Quinault Nation was a necessary party in suit

challenging the United States’ continued recognition of the

Nation as sole governing authority of the Quinault Indian

Reservation). Following these cases, we conclude that the

Navajo nation is a necessary party under Rule 19(a).

3. Feasibility of Joinder

We turn next to the issue of whether it is feasible to join

the Navajo Nation. Peabody does not contest that the court

could exercise personal jurisdiction over the Nation. Rather,

Peabody argues that the district court lacked jurisdiction

because of the Nation’s sovereign immunity.

In many cases in which we have found that an Indian

tribe is an indispensable party, tribal sovereign immunity has

required dismissal of the case. See, e.g., Dawavendewa II,

276 F.3d at 1163; American Greyhound Racing, Inc. v. Hull,

305 F.3d 1015, 1027 (9th Cir. 2002). By contrast, in a suit

brought by the EEOC, the Nation’s tribal sovereign immunity

does not pose a bar to its joinder. Tribal sovereign immunity

does not “act as a shield against the United States,” even

when Congress has not specifically abrogated tribal

immunity. United States v. Yakima Tribal Court, 806 F.2d

853, 861 (9th Cir. 1986); United States v. Red Lake Band of

Chippewa Indians, 827 F.2d 380, 382 (8th Cir. 1987).

Because the EEOC is an agency of the United States, “tribal

sovereign immunity does not apply in suits brought by the

EEOC.” Dawavendewa II, 276 F.3d at 1162-63; Karuk, 260

F.3d at 1075.

Peabody argues, however, that the district court lacked

the authority to join the Nation because the EEOC cannot

state a claim against an Indian tribe under Title VII. The

parties agree that the EEOC cannot sue an Indian tribe under

Title VII regarding the tribe’s own employment practices.

lla

Under § 2000e(b), an Indian tribe is specifically exempt from

the definition of “employer,” and thus Title VII does not

apply to Indian tribes when they act as employers. In addition,

Title VII limits the EEOC’s authority to proceed against “a

respondent which is a government, governmental agency, or

political subdivision.” 42 U.S.C. § 2000e-5(f)(1). In the case

of a governmental respondent, if the EEOC fails to resolve

the matter by informal means, the EEOC “shall take no

further action and shall refer the case to the Attorney General

who may bring a civil action against such respondent.” /d.

However, a plaintiff's inability to state a direct cause of

action against an absentee does not prevent the absentee’s

joinder under Rule 19. In Beverly Hills Federal Savings and

Loan Association v. Webb, 406 F.2d 1275, 1279-80 (9th Cir.

1969), we stated that “a person may be joined as a party

[under Rule 19(b)} for the sole purpose of making it possible

to accord complete relief between those who are already

parties, even though no present party asserts a grievance

against such person.” We held that a title company acting as a

trustee for some of the defendants’ property was properly

named as a defendant “for the sole purpose of ‘facilitating’

the enforcement of any orders that might be made by the

court with respect to the trust or the trust property.” /d. at

1279 (emphasis added). We so held even though the plaintiff

did not “assert any claim against the Title Company with

respect to which [the district] court has subject matter

jurisdiction.” Webb, 406 F.2d at 1279 (emphasis added).

In National Wildlife Federation v. Espy, 45 F.3d 1337,

1344-45 (9th Cir. 1995), we held © at private parties could be

named as defendants along with federal agencies in a suit

brought under the Administrative Procedure Ac! to enforce

rights conferred by the National Environmental Policy Act

and by the Food, Agriculture, Conservation and Trade Act of

1990. Although none of these statutes authorized causes of

action against the private parties, we held that Rule 19

nonetheless authorized their joinder as defendants. /d. In so

holding, we cited Sierra Club v. Hodel, 848 F.2d 1068, 1077

l2a

(10th Cir. 1988), in which the Tenth Circuit held that joinder

of a county was proper in an action under the Administrative

Procedure Act against a federal agency, even though the

plaintiff could not sue the county directly.

Our circuit's reading of Rule 19 not to require a cause of

action between a plaintiff and a party sought to be joined

under the rule is consistent with Supreme Court precedent. In

International Brotherhood of Teamsters v. United States, 431

U.S. 324, 356 (1977), the Supreme Court held that a labor

union named as a defendant was not liable for any

discrimination. Thus, the plaintiff had no viable cause of

action against the union. Accordingly, the Court vacated a

district court injunction against the union. Nevertheless, the

Supreme Court wrote that “the union will properly remain in

this litigation as a defendant so that full relief may be

awarded the victims of the employer’s post-Act

discrimination.” /d. at 356 n.43 (citing Fed. R. Civ. P. 19a);

EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086,

1095 (6th Cir. 1974)). The Supreme Court reaffirmed

Teamsters’ approach to Rule 19 in Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 400 & n.14 (1982) (reiterating

the Supreme Court’s holding in Teamsters, 431 U.S. at 356,

n.43).

We recognize that the Fifth Circuit has stated that “it is

implicit in Rule 19(a) itself that before a party . . . will be

joined as a defendant the plaintiff must have a cause of action

against it.” Vieux Carre Prop. Owners v. Brown, 875 F.2d

453, 457 (Sth Cir. 1989); see also Davenport v. Int'l Bhd. of

Teamsters, AFL-CIO, 166 F.3d 356, 366 (D.C. Cir. 1999)

(quoting this statement from Vieux Carre). However, our

circuit has never agreed with the rule stated in Vieux Carre.

Moreover, the actual holdings of Vieux Carre and Davenport

(as distinct from their abstract statement of the rule) can be

reconciled with the Supreme Court's and with our own Rule

19 cases. In Vieux Carre and Davenport, the courts were

answering different questions from the question in this case.

In Vieux Carre, the issue was whether the court could join

13a

under Rule 19 and then impose an injunction directly on a

party against whom the plaintiff could not state a cause of

action. The court held it could not. 875 F.2d at 456-57. In

Davenport, the issue was the same as in Vieux Carre. 166

F.3d at 366. The D.C. Circuit held in Davenport, “it is not

enough that plaintiffs ‘need’ an injunction against Northwest

in order to obtain full relief. They must also have a nght to

such an injunction, and Rule 19 cannot provide such a night.”

Id.

The difference between the situation presented here, in

which plaintiffs seek no affirmative relief against the Navajo

Nation, and that in Vieux Carre and Davenport, in which

plaintiffs sought injunctions againsi the party sought to be

joined, is captured in the majority and concurring opinions in

General Building Contractors Association v. Pennsylvania,

458 U.S. 375 (1982). In General Building, the Supreme Court

held that injunctive relief to enforce Title VII rights could not

be granted against employers who were “parties found not to

have violated any substantive rights of [the plaintiffs].” /d. at

399. The Court, however, also clarified that “this is not to say

that [the employer] defendants . . . might not, upon an

appropriate evidentiary showing, be retained in the lawsuit

and even [be] subject to such minor and ancillary provisions

of an injunctive order as the District Court might find

necessary to grant complete relief.” /d. (citing Zipes, 455 U.S.

at 399-400). In her concurrence, Justice O'Connor

emphasized this point, observing that even though the Court

in Teamsters v. United States, 431 U.S. 324 (1977), had found

that the union had not violated Title VII, it had nonetheless

“directed the union [under Rule 19] to remain in the litigation

as a defendant so that full relief could be awarded the victims

of the employer’s post-Act discrimination.” /d. at 405

(O’Connor, J., concurring) (quoting Zipes, 455 U.S. at 399-

400).

As in Teamsters, Espy, and Webb, the EEOC has no

claim against the party it seeks to join and is not seeking any

affirmative relief directly from that party. Joinder is necessary

14a

for the “sole purpose” of effecting complete relief between

the parties, Webb, 406 F.2d at 1279-80, by ensuring that both

Peabody and the Nation are bound to any judgment upholding

or striking down the challenged lease provision. Because the

EEOC is not seeking to hold the Navajo Nation liable under

Title VII, we reject Peabody’s argument that our reading of

Rule 19 conflicts with the Rules Enabling Act's restriction

that the federal rules of civil procedure “shall not abridge,

enlarge or modify any substantive right.” 28 U.S.C.

§ 2072(b). Joinder of the Nation does not, and cannot, create

any substantive rights that the EEOC may enforce against the

Nation, and the EEOC does not contend otherwise.

Our interpretation is consistent with other courts that

have allowed the EEOC to join a party under Rule 19 against

which it does not or cannot state a cause of action. In EEOC

v. Union Independiente de la Autoridad de Acueductos, 279

F.3d 49, 52 (ist Cir. 2002), for example, the EEOC filed a

complaint against a labor union for alleged discrimination

against an employee. The First Circuit observed without

disapproval that the EEOC had named a Puerto Rican

governmental employer as a Rule 19 defendant “to ensure

that complete relief, including [the employce’s] reinstatement,

was available.” /d. Under Peabody’s theory of Rule 19 and

Title VII, the EEOC would not have had statutory authority to

join a government as an employer because it could noi sue

that employer directly. See 42 U.S.C. § 2000e-5(f)(1)

(granting authority to litigate against a government

respondent to the Attorney General). In EEOC v. MacMillan

Bloedel, the Sixth Circuit held that it was proper to join a

union under Rule 19, although the union was not charged

with a Title VII violation. 503 F.2d at 1088. The court so held

“because the decree entered by the court might affect its

collective bargaining agreement(.]” /d. at 1095. “As a

practical matter,” the Sixth Circuit observed, “the Union need

not play a role in the litigation until the court finds that [the

employer] has violated Title VII.” /d.; see also id. at 1096

(citing cases in which union was joined in order to participate

1Sa

in the remedy). We agree with the Sixth Circuit in MacMillan

Bloedel that our understanding of Rule 19 is “consistent with

Title VII's grant of broad equitable powers to the courts to

eradicate the present and future effects of past

discrimination.” 503 F.2d at 1095-96. See also Gen. Tel. Co.

v. EEOC, 446 U.S. 318, 333 (1980) (stating that Congress

intended to give the EEOC “broad enforcement powers.”).

Our interpretation of Rule 19 is also consistent with both

the purpose and text of the rule. The Northern District of

California provided a succinct statement of this purpose when

it explained that “by definition, parties to be joined under

Rule 19 are those against whom no relief has formally been

sought but who are so situated as a practical matter as to

impair either the effectiveness of relief or their own or present

parties’ ability to protect their interests.” Eldredge v.

Carpenters 46 Northern California Counties Joint

Apprenticeship and Training Committee, 440 F. Supp. 506,

518 (N.D. Cal. 1977). The Nation fits this definition — it is a

party against which relief has not formally been sought but is

so situated that effectiveness of relief for the present parties

will be impaired if it is not joined. We hold that its joinder is

feasible. See Fed. R. Civ. P. 19a).

Finally, we note what we do, and do not, decide today.

We do decide that the Navajo Nation is a necessary party that

is feasible to join under Rule 19(a). However, we do not

decide, even implicitly, the merits of the EEOC’s Title VII

suit against Peabody. That determination is for the district

court on remand.

B. Political Question Doctrine

We next address the district court’s ruling that the case

involves a nonjusticiable political question. !n Baker v. Carr,

369 U.S. 186 (1962), the Supreme Court identified six factors

that may make a question nonjusticiable:

{1} @ textually demonstrable constitutional

commitment of the issue to a coordinate political

department; or [2] a lack of judicially discoverabie

16a

and manageable standards for resolving it; or [3] the

impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial

discretion; or [4] the impossibility of a court's

undertaking independent resolution without

expressing lack of the respect due coordinate

branches of government; or [5] an unusual need for

unquestioning adherence to a political decision

already made; or [6] the potentiality of

embarrassment from multifarious pronouncements

by various departments on one question.

Id. at 217. See also Los Angeles County Bar Ass'n v. Eu, 979

F.2d 697, 702 (9th Cir. 1992) (quoting the six Baker factors).

The Baker factors must be interpreted in light of the purpose

of the political question doctrine, which “excludes from

judicial review those controversies which revolve around

policy choices and value determinations constitutionally

committed for resolution to the halls of Congress or the

confines of the Executive Branch.” Japan Whaling

Association v. Am. Cetacean Society, 478 U.S. 221, 230

(1986).

The district court misunderstood the political question

doctrine when it held that the third, fourth, and sixth Baker

factors were implicated by the EEOC’s claim. A

nonjusticiable political question exists when, to resolve a

dispute, the court must make a policy judgment of a

legislative nature, rather than resolving the dispute through

legal and factual analysis. See Koohi v. United States, 976

F.2d 1328, 1331 (9th Cir. 1992). While it is true that the

EEOC is challenging a lease that the DOI has approved, the

district court was not called upon to make an “initial policy

determination.” Resolving whether and how Title VII applies

is a matter of statutory interpretation and thus involves simply

implementing policy determinations Congress has already

made. The issues here are entirely legal, and are of a sort

“familiar to the courts. “ Eu, 979 F.2d at 702.

17a

Nor do the fourth and fifth Baker factors apply merely

because, at the behest of the EEOC, the district court was

asked to rule on the legality of a lease that the DOI had

approved. We regularly review the actions of federal agencies

to determine whether they comport with applicable law. See

Japan Whaling Ass'n, 478 U.S. at 230 (explaining that the

political question doctrine did not bar a challenge to the

Secretary of Commerce’s action when a decision required

“applying no more than the traditional rules of statutory

construction, and then applying this analysis to the particular

set of facts presented”). Nor do controversies between

departments of the federal government necessarily present

political questions. See, e.g., United States v. Nixon, 418 U.S.

683, 693 (1974) (dispute between the President and the

Special Prosecutor); United States v. ICC, 337 U.S. 426, 430

(1949) {suit by the United States to review decision of the

Interstate Commerce Commission); TVA v. EPA, 278 F.3d

1184, 1198 (11th Cir. 2002) (dispute between federal

agencies about the meaning of the Clean Air Act). We

therefore conclude that no part of this case presents a

nonjusticiable political question.

C. Record-Keeping Claim

We turn finally to the EEOC’s record-keeping claim.

Title VII requires a covered employer to make and preserve

records that are “relevant to the determinations of whether

unlawful employment practices have been or are being

committed.” 42 U.S.C. § 2000e-8(c). In its complaint, the

EEOC alleged that Peabody had failed to keep employment

applications and sought an injunction directing Peabody to do

so. Peabody has a record-keeping obligation under Title VII

unrelated to the challenged Navajo employment preference.

Although the district court did not explicitly discuss or

analyze this claim, its entry of final judgment nonetheless

effectively dismissed it.

Peabody’s motion for summary judgment did not

mention the record-keeping claim, and its motion to dismiss

i8a

argued only that the EEOC was not entitled to a jury trial on

the claim. In the absence of argument by the parties, fair

notice to the EEOC that its record-keeping claim faced

dismissal, or any justification offered by the district court for

entering summary judgment on the claim, we vacate the

judgment as to the EEOC’s record-keeping claina and remand

for further proceedings. See Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (the moving party “bears the initial

responsibility of informing the district court of the basis for

its motion”); Couveau v. American Airlines, Inc., 218 F.3d at

1081 (observing that when the reasons for the district court's

decision are not clear, we may vacate summary judgment and

remand).

Conclusion

We do not decide the merits of the EEOC’s Title VII

claim against Peabody today. We hold simply that the Navajo

Nation is a necessary party to the action, and that it is feasible

to join the Nation in order to effect complete relief between

the parties. We also hold that the EEOC’s suit does not

present a non-justiciable political question. Finally, we

reverse the district court’s dismissal of the EEOC’s record-

keeping claim. We remand for further proceedings consistent

with this opinion.

REVERSED AND REMANDED.

19a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CIV 01-1050-PHX-MHM

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

vs.

PEABODY COAL COMPANY,

Defendant.

September 24, 2002, Decided

September 26, 2002, Filed

COUNSEL: For EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, plaintiff: Mary Joleen O'Neill, Esq,

Katherine J Kruse, Equal Employment Opportunity

Commission, Phoenix, AZ.

For PEABODY COAL COMPANY, defendant: Lawrence

Jay Rosenfeld, Esq, Mary E Bruno, John F Lomax, Jr,

Greenberg Traurig LLP, Phoenix, AZ.

For DELBERT MARIANO, THOMAS SAHU, intervenors:

Tod F Schleier, Esq, Bradley Hugh Schlieier, Esq, James M

Jellison, Schleier Jellison & Schieier PC, Phoenix, AZ.

ORDER

Pending before this Court are the following motions:

Defendant's Motion for Summary Judgment (Doc. # 38);

Defendant's Motion to Dismiss and/or Stay and/or Motion to

Strike (Doc. # 24); Plaintiff's Motion to Strike Portions of the

Statement of Facts and Affidavits Submitted by Defendant in

Support of its Motion for Summary Judgment (Doc. # 43);

Defendant’s Motion to Strike Plaintiff's Reply in Support of

20a

Plaintiff's Motion to Strike as Untimely (Doc. # 49); and

Delbert Mariano and Thomas Sahu’s Motion to Intervene as

Plaintiffs (Doc. # 23).

I. FACTUAL BACKGROUND

The Equal Employment Opportunity Commission

(“EEOC”) has filed this Complaint against Peabody Western

Coal Company (“Peabody Coal’’) claiming a violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

§ 2000e et seq.

Specifically, the EEOC alleges that Peabody Coal

violates Title VII's prohibitions against national original

discrimination by giving preference in hiring to Navajos over

non-Navajo Native Americans at its coal mining operations

located on the Navajo and Hopi Indian Reservations (the

“Black Mesa Complex”).

The EEOC claims that Delbert Mariano and Thomas

Sahu, members of the Hopi Tribe, and Robert Koshiway, a

member of the Otoe Tribe (now deceased), applied for

positions with Peabody Coal and were denied employment in

favor of members of the Navajo Nation. Before filing this

lawsuit against Peabody Coal, the EEOC engaged in some

informal conciliation. The conciliation process failed to

resolve the matter, and this lawsuit was filed.

A. THE COAL LEASES

Peabody Coal conducts coal mining operations on the

Navajo and Hopi Reservations in northeastern Arizona

pursuant to drilling and exploration permits and coal mining

leases executed with the respective tribes.' These permits and

coal leases require Peabody Coal to provide preference in

employment to members of the respective tribes. These

permits and coal leases also require approval of the United

' These operations provide coal to the Salt River Project

Agricultural Improvement and Power District generating station in

Page, Arizona, and to Southern California Edison’s Mojave

generating station.

2la

States Secretary of the Interior under certain circumstances.

Specifically, these provisions are as follows.

1. The 1961 Navajo Permit

The Drilling and Exploration Permit executed on May

13, 1961 between The Navajo Tribe of Indians and Sentry

Royalty Company, Peabody Coal’s predecessor in interest,

provides in pertinent part:

9. Permittee shall commence prospecting operations

for coal within ninety (90) days of the approval of

this permit by the Secretary of the Interior ...

10. Permittee will employ members of the Navajo

Tribe when available in all positions for which they

are qualified and pay prevailing wages to such

Navajo employees. Permittee will make a special

effort to work members of the Navajo Tribe into

skilled, technical and other jobs in connection with

its operations under this permit.

**#*

12. This permit shall not be assignable without

approval of the Advisory Committee of the Navajo

Tribal Counsel and the Secretary of the Interior.

This Drilling and Exploration Permit (the “1961 Navajo

Permit”) was signed and is dated February 6, 1962, by James

F. Canan, assistant area director, Bureau of Indian Affairs,

Department of the Interior. Article XIX of the form Lease

attached as Exhibit B to the 1961 Navajo Permit” also

contains a Navajo employment preference provision as

follows:

ARTICLE XIX. NAVAJO EMPLOYMENT

PREFERENCE

Lessee agrees to employ Navajo Indians

when available in all position for which, in the

judgment of Lessee, they are qualified, and to pay

prevailing wages to such Navajo employees and to

22a

utilize services of Navajo contractors whenever

feasible.

Lessee shall make a special effort to work

Navajo Indians into skilled, technical and other

higher jobs in connection with Lessee’s operations

under this lease.

2. The 1964 Navajo Coal Lease No. 8580

A Mining Lease executed on February |, 1964 between

the Navajo Tribe and Sentry Royalty Company, Peabody

Coal’s predecessor in interest, for the lands that were subject

of the 1961 Navajo Permit (“Navajo Coal Lease No. 8580"),

provides in pertinent part:

ARTICLE VI. TERMINATION OF FEDERAL

JURISDICTION

During the period that the land so leased is under

Federal jurisdiction, the royalty provisions of this

lease are subject to reasonable adjustment by the

Secretary of the Interior or his authorized

representative at the end of twenty years from the

effective date of this lease, and at the end of each

successive ten-year period thereafter. . .

ARTICLE VIIl. SUSPENSION OF MINING

OPERATIONS

Whenever permitted by law, if the Secretary

of the Interior or his authorized representative

considers the marketing facilities inadequate or the

economic conditions unsatisfactory, he may, with

the concurrence of ithe Advisory Committee of the

Navajo Tribal Council, authorize the suspension of

mining operations for such time as he considers

advisable. . .

ARTICLE X. REGULATIONS

23a

Lessee shall abide by and conform to any

and all regulations of the Secretary of the Interior

now or hereafter in force relative to such leases. . .

*+*

ARTICLE XI. ASSIGNMENT OF LEASE

Lessee shall not assign this lease or any

interest therein by an operating agreement or

otherwise, or sublet any portion of the leased

premises, except with the prior approval of the

Secretary of the Interior and the Advisory

Committee of the Navajo Tribal Council. . .

ARTICLE XVI. CANCELLATION AND

FORFEITURE

en, in the opinion of the Mining

Engineer of the Navajo Tribe and the Secretary of

the Interior, before restrictions are removed, there

has been a violation of any of the terms and

conditions of this lease, the Secretary of the Interior

and the Navajo Tribe shall have the right . . . to

declare this lease null and void. . .

*+*

ARTICLE XIX. NAVAJO EMPLOYMENT

PREFERENCE

Lessee agrees to employ Navajo Indians

when available in all positions for which, in the

judgment of Lessee, they are qualified, and to pay

prevailing wages to such Navajo employees and to

utilize services of Navajo contractors where

feasible.

Lessee shall make a special effort to work

Navajo Indians into skilled, technical and other

24a

higher jobs in connection with Lessee’s operations

under this Lease.

ARTICLE XXII. OBSERVANCE OF TRIBAL

RESOLUTIONS

“Lessee agrees to comply with all lawful

resolutions adopted by the Navajo Tribal Council.”

ARTICLE XXVIII. NOTICES

Any notice, demand or request provided for

in this lease, or given or made in connection with it

shall be deemed to be properly given if delivered in

person, or sent by registered or certified mail . . . to

the persons specified below:

To or upon the Tribe:

Chairman

Navajo Tribal Council

Window Rock, Arizona

and

General Superintendent

Navajo Agency, Bureau of Indian Affairs

Window Rock, Arizona ...

Navajo Coal Lease No. 8580 was approved on August 28,

1964 by John C. Dibbern, assistant area director of the Bureau

of Indian Affairs, Department of the Interior.

3. The 1964 Joint Use Permit

A Drilling and Exploration Permit executed on June |,

1964 between The Hopi Tribe of Arizona and The Navajo

Tribe of Indians and Sentry Royalty Company, Peabody

Coal’s predecessor in interest (the “Joint Use Permit”),

contains provisions nearly identical to those in the 1961

25a

Navajo Permit. The Joint Use Permit provides in pertinent

part:

1. Pursuant to authority contained in a resolution of

the Hopi Tribal Council, H-7-64 dated June |, 1964,

and a resolution of the Advisory Committee of the

Navajo Tribal Council, ACM Y-77-64 dated May 7,

1964, Permittee is hereby granted the exclusive

right to drill and explore for coal for a period of two

years from and after the date of approval hereof by

the Secretary of the Interior. . .

*e*

10. Permittee will employ members of the Hopi and

Navajo Tribes when available in all positions for

which they are qualified and pay prevailing wages

to such Hopi and Navajo employees. Permittee will

make a special effort to work members of the Hopi

and Navajo Tribes into skilled, technical, and other

higher jobs in connection with its operations under

this permit.

12. This permit shall not be assignable without the

prior approval of the Hopi Tribal Councii, the

Advisory Committee of the Navajo Tribal Council,

and the Secretary of the Interior.

The Joint Use Permit was approved and signed on October

20, 1964 by John C. Dibbern, area director, Gallup Area

Office, Bureau of Indian affairs, Department of the Interior,

and on October 23, 1964, by George W. Hadden, area

director, Phoenix Area Office, Bureau of Indian Affairs,

Department of the Interior.

Exhibit B to the Joint Use Permit, made a part thereof

pursuant to paragraph | of the Joint Use Permit, and entitled

“United States Department of the Interior Bureau of Indian

Affairs Mining Lease between Sentry Royalty Company

26a

[Peabody Coal’s predecessor in interest] and the Hopi and

Navajo Tribes” (the “Joint Use Lease”) contains provisions

nearly identical to those in Coal Lease No. 8580, except that

employment preference is given to both Hopis and Navajos.

Before execution of the Joint Use Lease, however, a dispute

arose regarding the terms of this Joint Use Lease. As a result,

the Hopi Tribe and the Navajo Tribe executed separate

mining leases on June 6, 1966.

The resulting Hopi Coal Lease, entitled “United States

Department of the Interior Bureau of Indian Affairs Mining

Lease between the Hope [sic] Tribe, State of Arizona and

Sentry Royalty Company” required Sentry (predecessor in

interest to Peabody Coal) to give Hopi Indians preference in

hiring, allowed the Hopi Tribe to extend the preference to

Navajo Indians, and required Sentry (predecessor in interest

to Peabody Coal) to “make a special effort to work Hopi and

Navajo Indians into skilled, technical and other higher jobs in

connection with Lessee’s operations under this lease.

4. The 1966 Navajo Coal Lease No. 9910

The resulting Navajo Lease (“Navajo Coal Lease No.

9910"), “United States Department of the Interior Bureau of

Indian Affairs Mining Lease between Sentry Royalty

Company and the Navajo Tribe State of Arizona,” contained

terms virtually identical to those in Navajo Coal Lease No.

8580, except that it allowed Sentry, predecessor in interest to

Peabody Coal, to extend the employment preference

provision to members of the Hopi Tribe. It provided in

pertinent part as follows:

ARTICLE IV. ANNUAL RENTAL

Lessee agrees . . . to pay or cause to be paid

to the Secretary of the Interior or his authorized

representative, for the use and benefit of the Navajo

Tribe. . .

27a

ARTICLE VI. SUSPENSION OF MINING

OPERATIONS

Whenever permitted by law, if the Secretary

of the Interior or his authorized representative

considers the marketing facilities inadequate or the

economic conditions unsatisfactory, he may, with

the concurrence of the Lessor, authorize the

suspension of mining operations for such time as he

considers advisable. . .

ARTICLE VIII. REGULATIONS

Lessee shall abide by and conform to any

and all regulations of the Secretary of the Interior

now or hereafter in force relative to such leases. . .

ARTICLE IX. ASSIGNMENT OF LEASE

Lessee shall not assign this lease or any

interest therein by an operating agreement or

otherwise, or sublet any portion of the leased

premises, except with the prior approval of the

Secretary of the Interior and the Lessor. .

ARTICLE XI. INSPECTION

The leased premises and producing

operation, improvements, machinery and fixtures

thereon and connected therewith and all pertinent

books and accounts of Lessee shall be open at all

times for inspection by agents of the Lessor or any

duly authorized representative of the Secretary of

the Interior.

28a

ARTICLE XIV. CANCELLATION AND

FORFEITURE

When, in the opinion of the Lessor and the

Secretary of the Interior, before restrictions are

removed, there has been a violation of any of the

terms and conditions of this lease, the Secretary of

the Interior and the Lessors shall have the right . . .

to declare this lease null and void. . .

“**

ARTICLE XVII. EMPLOYMENT PREFERENCE

Lessee agrees to employ Navajo Indians

when available in all positions for which, in the

judgment of Lessee, they are qualified, and to pay

prevailing wages to such Navajo employees and to

utilize services of Navajo contractors where

feasible.

Lessee shall make a special effort to work

Navajo Indians into skilled, technical and other

higher jobs in connection with Lessee’s operations

under this Lease. Lessee may at its option extend

the benefits of this Article to Hopi Indians.

***

ARTICLE XXVII. NOTICES

Any notice, demand or request provided for

in this lease, or given or made in connection with it,

shall be deemed to be properly given if delivered in

person, or sent by registered or certified mail ... to

the persons specified below:

Chairman

Navajo Tribal Council

Window Rock, Arizona

Secretary of the Interior (2 copies). . .

29a

Navajo Coa) Lease 9910 was approved and signed on July 7,

1966, by Graham Holmes, area director, Bureau of Indian

Affairs, Department of the Interior.

5. Drafting, Negotiations, and Amendments

Peabody Coal in-house counse! Edward L. Sullivan Jr.

has testified by affidavit that it is his understanding, based on

his review of the 196] Navajo Permit and the 1964 Joint Use

Permit and the history of Peabody Coal’s leasing nights in

Arizona, that the 1961 Navajo Permit and the form of lease

attached as Exhibit B thereto and the 1964 Joint Use Permit

and the form of lease attached as Exhibit B thereto were

drafted by the United States Secretary of Interior or his

authorized representative and presented to Sentry with no

meaningful opportunity to bargain over the employment

preference term.

The 1964 Navajo Coal Lease No. 8580 and the 1966

Navajo Coal Lease No. 9910 contain virtually identical terms

as excerpted above, to the terms in the form leases, with the

exception that the 1966 Navajo Coal Lease No. 9910 allows

Sentry to extend the Navajo hiring preference to the Hopi

Tribe as weil.

Attorney Sullivan has further testified pursuant to

affidavit that the 1964 Navajo Coal Lease No. 8580 and the

1966 Navajo Coai Lease No. 9910 have been amended twice

since they were executed, cach time with the approval of the

Secretary of the Interior, and each time without any changes

to the employment preference provision. In 1987, he testified,

a new article was added to each lease, stating that all

provisions of the original leases would continue in full force

and effect, except as expressly modified by the amendments.

The most recent amendment was approved on March 29,

1999, by Bruce Babbitt, then Secretary of the Interior, he

testified.

Attorney Marvin O. Young, former Peabody Coal

general counsel from 1968 to 1985, further testified by

affidavit that he is familiar with two other Mining Leases

30a

executed with the Navajo Nation, one by Utah International,

and one by P&M, and that each contains a Navajo

employment preference clause. He testified by affidavit that

“It is my understanding that the United States Secretary of the

Intenor required these employment preference provisions as a

condition of the leases, a5 part of a standardized practice by

the Secretary of the Interior at the time.”

5. Navajo Preference in Employment Act

While this lawsuit has been pending, Peabody Coal has

been subject to legal action by the Navajo Nation seeking to

enforce the Navajo Preference in Employment Act, 1S NNC §

601, ef seq.

Section 604 of the Navajo Preference in Employment Act

states as follows:

§ 604. Navajo employment preference

A. All employers doing business within the

territorial jurisdiction [or near the boundaries] of the

Navajo Nation, or engaged in any contract with the

Navajo Nation, shall:

1. Give preference in employment to Navajos. . .

15 NNC § 604.

B. EEOC’S OBJECTIONS TO THE EVIDENCE

The EEOC has not offered any evidence to controvert the

evidence offered by Peabody Coal and outlined above, nor

has it suggested that it has any such evidence. The EEOC has

not disputed that the documents offered by Peabody Coal,

specifically the 196] Navajo Permit, the 1964 Joint Use

Permit, the Hop: Lease, amd 1964 Navajo Coal Lease No.

8580 and the 1966 Navajo Coal Lease No. 9910 contain the

terms outlined.’

* The EEOC states at page 2 of its brief that “to the extent that

the two affiants’ avowals rely on actual language from the lease

3la

The EEOC, however, has moved to strike certain

statements outlined in section A.4., supra, by Peabody Coal

former and present in-house counsel relating to the Secretary

of Interior’s direct involvement in drafting and approving the

Coal Leases, and whether the Navajo employment preference

is typically included in such Coai Leases. These statements,

the EEOC argues, should not be admitted with regards to

Peabody Coal’s argument that the issue in this litigation

presents a nonjusticiable political question.

The EEOC originally also moved to strike Mr. Sullivan's

sworn statements referring to the contents of the amendments

to the Coal Leases, ie., his testimony that the Coal Lease

amendments did not change the Navajo hiring preference.

The EEOC, however, has since stipulated that the

amendments and related supplements to Navajo Coal Lease

8580 and Navajo Coal Lease 9910 “did not change, or

address, the hiring preferences outlined in those leases.” See

Corrected Stipulation Regarding Lease Amendments, dated

7/23/02 (Doc. # 57).

The EEOC apparen‘ly retains its original objections to

Mr. Sullivan’s sworn statements as to his understanding that

the Secretary of the Interior drafted the original Permits and

form of Leases, and that Sentry was not provided the

opportunity to bargain over the employment preference term,

arguing he has not shown personal knowledge of the

negotiations. The EEOC also moved to strike Attorney

Young's statement that it was his understanding that the

Navajo employment preference was required by the Secretary

of Interior in mining leases, and was typical of such leases, on

the ground attorney Young has not established personal

knowledge.

Peabody Coal, however, cites to a brief that the EEOC

filed with the United States Court of Appeals for the Ninth

agreements or other documents attached to their affidavits, the

Commission has not challenged the avowals.”

32a

Circuit, wherein Peabody Coal conceded that the Navajo

employment preference provisions are aggressively pushed by

the Navajo Nation and are in a number of the Navajo Nation's

lease agreements. See EEOC's Motion to Intervene in

Dawavendewa v. Salt River § Project Agricultural

Improvement and Power District, at p. 14, attached as Ex. B

to Defendant's Response to Plaintiff's Motion to Strike.

Il, PROCEDURAL BACKGROUND

Defendant Peabody Coal has moved pursuant to Rule 56

of the Federal Rules of Civil Procedure for summary

judgment to dismiss this Complaint on the ground that |) the

Navajo Nation is a necessary and indispensable party to this

litigation and its joinder is not feasible under Rule 19(b)

because the EEOC is not empowered to bring this action

against the tribe; or alternatively 2) this case presents a

nonjusticiable political question. In the event this Court does

not grant Peabody Coal’s motion for summary judgment,

Defendant Peabody Coal has moved pursuant to Rules

12(b)(6) and Rule 12(f) to dismiss and/or stay and/or strike

this Complaint on the grounds that |) the EEOC failed to

conciliate as required by Title VII; 2) the EEOC failed to set

forth legal bases warranting the relief it requests; and 3) the

EEOC has defined a class in a manner not permitted by

Section 706 of the Civil Rights Act of 1964 on which the

EEOC relies.

Finally, Delbert Mariano and Thomas Sahu, members of

the Hopi Tribe, and the charging parties in the EEOC

complaint, have moved pursuant to Rule 24 of the Federal

Rules of Civil Procedure to intervene as plaintiffs in this

lawsuit.

Il. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim for relief

under Rule 12(b)(6) must be treated as a motion for summary

judgment under Federal Civil Procedure Rule 56 if either

party to the motion to dismiss submits materials outside the

pleadings in support of or in opposition to the motion that the

33a

Court relies on in its ruling. Anderson v. Angelone, 86 F.3d

932, 934 (9th Cir. 1996).

A motion for summary judgment may be granted only if

the evidence shows “that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). To defeat the

motion, the non-moving party must show that there are

genuine factual issues “that properly can be resolved only by

a finder of fact because they may reasonably be resolved in

favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202

(1986).

The party opposing summary judgment “may not rest

upon the mere allegations or denials of [the party's]

pleadings, but . . . must set forth specific facts showing that

there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see

also Matsushita Elec. Indus. Co., Lid. v. Zenith Radio Corp.,

475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d

538 (1986). The Court views the evidence in the light most

favorable to the nonmoving party, Plaintiff here, and draws

any reasonable inferences in the nonmoving party's favor. See

Warren v. City of Carisbad, 58 F.3d 439, 441 (9th Cir. 1995),

cert. denied, 516 U.S. 1171, 134 L. Ed. 2d 209, 116 S. Ct.

1261 (1996).

A case is deemed to have raised a political question not

suitable for judicial review if one of the following

formulations is inextricable from the case:

Prominent on the surface of any case held to

involve a political question is found a textually

demonstrable constitutional commitment of the

issue to a coordinate political department; or a lack

of judicially discoverable and manageable standards

for resolving it; or the impossibility of deciding

without an initial policy determination of a kind

clearly for nonjudicial discretion; or the

impossibility of a court’s undertaking independent

34a

resolution without expressing lack of the respect

due coordinate branches of government or an

unusual need for unquestioning adherence to a

political decision already made; or the potentiality

of embarrassment from multifarious

pronouncements by various departments on one

question.

Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed.

2d 663 (1962) (emphasis added).

lil. DISCUSSION

Rule 19 of the Federal Rules of Civil Procedure requires

that this Court determine |) whether an absent party is

necessary to the action; and then 2) if the party is necessary

but cannot be joined, whether the party is indispensable such

that in “equity and good conscience” the suit should be

dismissed. Confederated Tribes v. Lujan, 928 F.2d 1496,

1498 (9th Cir. 1991).

The EEOC has expressly conceded that the Navajo

Nation is a necessary party to this litigation under Rule 19(a)

of the Federal Rules of Civil Procedure. See Plaintiff's

Opposition at page 4, lines 2-3.

The EEOC argues, however, that dismissal is not

appropriate because this Court can and should Order that the

Navajo Nation be made a party to this litigation. The EEOC

specifically asks that this Court “order the Navajo Nation to

appear and defend any interests it believes may be affected by

this litigation.” See Plaintiff's Opposition at page 4, lines 24-

25. The EEOC further indirectly characterizes this lawsuit as

litigation over “the validity of its [the Navajo Nation's]

discriminatory lease provision and employment preference

provisions ... [and] the interplay between its tribal sovereignty

and Title VII.” /d. at p. 5, lines 18-21. Thus, the initial issue

before this Court on Peabody Coal’s Motion for Summary

Judgment is whether the Navajo Nation can properly be

joined as defendant in this iawsuit.

35a

A. The EEOC’s Statutory Authority To Sue The Navajo

Nation

Peabody Coal does not argue that The Navajo Nation

cannot assert sovereign immunity against any lawsuit that

might be brought by the EEOC, as representative of the

United States.

Instead, Peabody Coal claims that the Court may not join

the Navajo Nation because the Commission may not maintain

an action “against a government, governmental agency, or

political subdivision.” See 42 U.S.C. § 2000e-5(f)(1); 42

U.S.C. § 2000e-4(g)(6). The first cited statute reads in

pertinent part as follows:

. 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 who may bring a civil

action against such respondent in the appropriate

United States district court.

42 U.S.C. § 2000e-5(f)(1) (emphasis added). The second cited

statute authorizes the EEOC to intervene in actions brought

under 2000e-5 against “a respondent other than a government,

governmental agency or political subdivision.” See 42 U.S.C.

2000e-4(g)(6) (emphasis added).

The EEOC does not dispute that the Navajo Nation is a

“government, governmental agency, or political subdivision”

under these statutes. The EEOC, however, argues that the

plain language of this portion of Title VII applies only to a

“respondent” who is “a government, governmental agency, or

political subdivision.” It further argues that the Navajo Nation

is not a “respondent” under the statutory definition. The

referenced statute provides as follows:

(n) The term “respondent” means an employer,

employment agency, labor organization, joint labor-

36a

management committee controlling apprenticeship

or other training or retraining program, including an

on-the-job training program or Federal entity

subject to section 2000e-16 of this title.

42 U.S.C. 2000e(n). The EEOC argues that the Navajo Nation

was not an employer in this case, and thus cannot be

considered a “respondent” for purposes of 42 U.S.C. § 2000e-

5(f1). Thus, the EEOC concludes, 42 U.S.C. § 2000e-5(f\(1)

does not limit its power to sue the Navajo Nation

Another district court, addressing the similar argument

that the EEOC had authority to sue a government so long as it

did not directly seek relief from the government, soundly

rejected it, reasoning:

In short, the EEOC argues that Congress intended to

preclude the EEOC from suing governmental

entities for some purposes but not for others. This

position is entirely unsupported by the language of

the statute, by case law, and by any reasonable

policy justification.

EEOC v. AFT Local # 571, 761 F. Supp. 536, 539 (N.D. Ill.

1991) (holding that EEOC’s joinder of a school district, a

participant in a collective bargaining agreement, as a

necessary party under Rule 19 “was frivolous in view of

unambiguous statutory and case law authority which

prohibited the EEOC from naming [a governmental entity] as

a defendant”). The Court quoted another court's reasoning

with approval as well:

It goes too far to argue that EEOC in suing a private

party must be able to join indispensable

governmental entities or enforcement of the statute

will be frustrated. The Attorney General is, after all,

part of the federal government also and if he

decides to sue a public body he will necessarily

have to make the converse decision to join the

indispensable private party. The motion to dismiss

the Board is granted

37a

Id. at 540. The same reasoning applies here to reject the

EEOC’s content».n that the statute does not prohibit it from

suing the Navajo Nation, a government, because it 1s not a

“respondent” government. The EEOC argument is too

strained to support what the statute clearly was not intended

to authorize.

The EEOC concedes, moreover, that Indian tribes,

including the Navajo Nation, are specifically exempt as

employers from the requirements of Title VII, pursuant to 42

U.S.C. § 2000e(b), which provides in pertinent part as

follows:

(b) The term “employer” . . . does not include (1). . . an

Indian tribe . . . 42 U.S.C. § 2000e(b). The EEOC concludes

from this section, however, that Congress intended to exempt

the Navajo Nation from suit only when it was an employer,

and not when it might instead be considered a “government

entity.”

The EEOC’s interpretation of these two statutes together

is mistaken, as contrary to their plain meaning. The Attorney

General clearly has exclusive authority to file suit whenever a

government such as an Indian tribe is involved. See 42 U.S.C.

§ 2000e-S(f1); see also 42 U.S.C. § 2000e-S5(f(2); 42

U.S.C. § 2000e-8(c) (the Attorney General is to take the

appropriate action “in a case involving a government,

governmental agency, or a political subivision.”) The EEOC

cannot expand its authority to bring suit against an Indian

tribe, which is clearly exempt from the provisions of Title

VII, and is also a “government” specifically exempted from

suit by the EEOC, on such a thin argument. No meaningful

distinction exists between “respondent” and “defendant”

under the circumstances presented here. The EEOC in effect

is seeking to sue the Navajo Nation to force it to defend the

Navajo Preference in Employment Act and its contracts with

employers working on its lands, when it is prohibited from

suing the Navajo Nation to enforce Title VII provisions

against the tribe directly. This is contrary to the clear

38a

provisions of Title VII prohibiting the EEOC from suing

governments, and specifically exempting the Indian tribes

from its provisions. See EEOC v. AFT Local # 571, 761 F.

Supp. at 539.

The EEOC further argues that it has the authority to sue

the Navajo Nation pursuant to 42 U.S.C. § 2000e-5(a), which

provides in pertinent part as follows:

The Commission is empowered, as hereinafter

provided, to prevent any person from engaging in

any unlawful employment practice as set forth in

section 2000e-2 or 2000e-3 of this title.

42 U.S.C. § 2000e-S(a). The EEOC argues that the statutory

definition of “person” specifically includes “governments,

governmental agencies, political subdivisions.” See 42 U.S.C.

§ 2000e(a). Therefore, the EEOC concludes, “there simply is

no basis for Peabody's claim that the Commission cannot

litigate this claim when the Navajo Nation is present.” See

Plaintiff's Opposition at page 7. This argument also fails. The

EEOC’s authority under this section is limited to enforcement

of sections 2000e-2 and 2000e-3, which specifically prohibit

an “employer,” as defined in 2000e(n), from discrimination

on the basis of national origin, or retaliation.

The EEOC’s reliance on the suggestion in Dawavendewa

v. Salt River Project Agricultural |Jmprovement & Power

District, 276 F.3d 1150, 1162 (9th Cir. 2002) (Dawavendewa

IT) that plaintiff might have a viable alternative forum by

virtue of a lawsuit instituted by the EEOC, since “tribal

sovereign immunity does not apply in suits brought by the

EEOC,” is misplaced. See Dawavendewa II, 276 F.3d at 1162

(quoting EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071,

1075 (9th Cir. 2001)).’ This issue was not specifically before

* The EEOC mistakenly cites Karuk and Dawavendewa II for

the proposition that the Ninth Circuit “has twice expressly stated

than an Indian tribe is a proper party to litigation brought by the

Commission.” See Opposition at p.4, ll. 7-9. In neither of those

39a

the Court or necessary to its holding, and is therefore dicta.

See id. Moreover, that Court did not address the issue of

whether the EEOC had statutory authority to bring a lawsuit

against an Indian tribe, the issue here. See id

This Court is not persuaded that Title VII grants the

EEOC authority to sue an Indian tribe when it is not the

employer, but is instead a party to Coal Leases executed with

the employer that direct it to give preference to Navajos.

After all, Title VII expressly exempts Indian tribes from its

provisions, and expressly prohibits the EEOC from naming as

respondent parties “governments,” a term the EEOC does not

dispute includes Indian tribes. This Court is persuaded that

Congress did not intend to authorize the EEOC to name the

Indian tribes as defendants in a lawsuit alleging Title VII

violations, no matter what their role. This Court is further

persuaded that joinder of an Indian tribe under Rule 19 would

divest the EEOC of its authority to litigate. See EEOC v. AFT,

Local # 571, 761 F. Supp. at 539

Accordingly, this Court concludes that the joinder of the

Navajo Nation, a necessary party under Rule 19a) of the

Federal Rules of Civil Procedure, is not feasible.

B. Whether the Navajo Nation is an Indispensable Party

Thus, this Court must decide whether the Navajo Nation

is an indispensable party to this lawsuit such that in “equity

and good conscience” the suit should be dismissed. See

Confederated Tribes v. Lujan, 928 F.2d at 1498; Fed. Civ

Pro. Rule 19(b).

—- ———

cases did the Ninth Circust address the issue of whether the EEOC

has statutory authority to sue an Indian tribe under Title VII. In

Karuk, the Ninth Circuit specifically held that the EROC did not

have regulatory jurisdiction over an Indian tribe under the Age

Discrimination in Employment Act, even though the ADEA does

not expressly exempt Indian tribes from its jurisdiction, as does

Title VII. See Karuk, 260 F.3d at 1082

40a

To make this determination, the Court must balance four

factors: 1) the prejudice to any party or to the absent party; 2)

whether relief can be shaped to lessen prejudice; 3) whether

an adequate remedy, even if not complete, can be awarded

without the absent party; and 4) whether there exists an

alternative forum. See Kescoli v. Babbitt, 101 F.3d 1304,

1310 (9th Cir. 1996).

The Ninth Circuit addressed these factors in

Dawavendewa Ii, involving a lease between Salt River

Project and the Navajo Nation that contains a Navajo

Employment Preference provision similiar to the one in the

Coal Leases at issue here. See Dawavendewa //, 276 F.3d at

1161-63.

With regards to the first factor, prejudice to any party or

to the absent party, the Ninth Circuit found in that case that

any decision in the absence of the Navajo Nation would

prejudice the Navajo Nation's economic interests in the lease,

“namely its ability to provide employment and income for the

reservation.” See id. at 1162. The court also found that a

decision would “prejudice the Nation's sovereign interests in

negotiating contractual obligations and governing the

reservation.” See id. The court also found that the absence of

the Nation would prejudice the defendant by preventing the

resolution of its lease obligations. See id. The same prejudice

would occur here with respect to the Navajo Nation and

Peabody Coal

With regards to the second factor, whether relief can be

shaped in the Nation's absence to lessen prejudice, the court

found that any decision mollifying the plaintiff would

prejudice the Nation in its contract with the defendant and its

governance of the tribe. See id. The same is true here: any

relief for the EEOC would come at the expense of the

economic and sovereign interests of the Nation

With regards to whether an adequate remedy could be

fashioned absent the Nation, the court found that no partial

relief would be adequate, that injunctive relief would

4la

necessarily result in the above-described prejudice to the

defendant and the Nation, and an award of damages would

not resolve defendant’s potential liability to other plaintiffs.

See id. The same holds true here as well. This factor also

warrants dismissal.

The only distinction between the Ninth Circuit's analysis

in Dawavendewa I/ and this case with respect to the issue of

whether the Navajo Nation is an indispensable party is with

regards to the fourth factor, whether there exists an alternative

forum. In Dawavendewa Ii, the Ninth Circuit suggested in

dicta that the plaintiff “may have a viable alternative forum in

which to seek redress” by joining in a lawsuit filed by the

EEOC (on the premise the Nation could not assert sovereign

immunity against the EEOC), or by suing in tribal court,

obtaining an adverse decision, and then bringing suit against

the officials in federal court. See id. at 1162-63 and n.12.

“Recognizing the resources and aggravation consumed in

relitigating,” however, the court determined that this factor

“remains in equipose.” See id. at 1163. The court noted,

moreover, that the absence of any alternative forum to air the

grievance was not an impediment to dismissal on grounds an

absent party was indispensable. See id. at 1162. Here, there

may be no alternative judicial forum. This Court, however,

finds that this is not an impediment to dismissal.

On balancing these four factors, this Court finds, as did

the Ninth Circuit in Dawavendewa //, that the Nation is an

indispensable party, and that “in equity and good conscience”

the lawsuit cannot proceed in its absence. See id. at 1163.

Dismissal of this action is therefore proper because the

Navajo Nation, a necessary and indispensable party to this

litigation, cannot be made a party to this litigation by the

EEOC under the specific provisions of Title VII. See 42

US.C. § 2000e-5(f 1 prohibiting the EEOC from filing

action against a “government’); 42 US.C. § 2000e(b)

(exempting Indian tribes from provisions of Title VII);

Dawavendewa I/, 276 F.3d at 1162 (holding that the Navajo

42a

Nation was a necessary and indispensable party to

employment discrimination lawsuit involving its leases, and

that the lawsuit could not go forward in its absence).

C. Whether this Case Presents a Nonjusticiable Political

Question

Even if arguably the EEOC did have statutory authority

to sue the Navajo Nation under the circumstances presented

here, and its joinder did not divest the EEOC of its authority

to litigate, this Court also finds that this case presents a

nonjusticiable political question, and it must be dismissed on

this alternative ground as well.

The political question doctrine is a “tool for the

maintenance of governmental order,” and “primarily a

function of the separation of powers.” Baker v. Carr, 369

U.S. 186, 214, 210, 82 S. Ct. 691, 709, 706, 7 L. Ed. 2d 663

(1962). In deciding whether a case raises a political question

that is not suitable for judicial review, the Court fashioned the

following test:

Prominent on the surface of any case held to

involve a political question is found a textually

demonstrable constitutional commitment of the

issue to a coordinate political department; or a lack

of judicially discoverable and manageable standards

for resolving it; or the impossibility of deciding

without an initial policy determination of a kind

clearly for nonjudicial discretion; or the

impossibility of a court’s undertaking independent

resolution without expressing lack of the respect

due coordinate branches of government or an

unusual need for unquestioning adherence to a

political decision already made; or the potentiality

of embarrassment from multifarious

pronouncements by various departments on one

question.

Id. at 217, 82 S. Ct. at 710 (emphasis added). If any one of

these “formulations is inextricable from the case at bar,” the

43a

case should be dismissed on the ground it presents a

nonjusticiable political question. See id.; see also Powell v.

McCormack, 395 U.S. 486, 518-19, 89 S. Ct. 1944, 1962, 23

L. Ed. 2d 491 (1969) (noting that a nonjusticiable political

question must involve at least one of these formulations).* It

is necessary to conduct a “discriminating inquiry into the

facts and posture of the particular case” to ascertain whether it

presents a nonjusticiable political question. Baker v. Carr,

269 U.S. at 217, 82 S. Ct. at 710.

1. The Issues Presented

The EEOC seeks in this action in effect to enjoin

enforcement of the Navajo Employment Preference

provisions agreed to by the Navajo Nation and Peabody Coal

and approved by the Department of the Interior through a

representative of the Bureau of Indian Affairs in 1964 Navajo

Coal Lease No. 8580 and the 1966 Navajo Coal Lease No.

9910. The EEOC has specifically requested in its Complaint

that this Court in part:

A. Grant a permanent injunction enjoining Peabody,

its officers, successors, assigns and all persons in

active concert or participation with it, from

engaging in discrimination on the basis of national

origin.

Complaint, Prayer for Relief at A. In fact, the EEOC has

indicated that it intends not only to seek to void or rework the

Navajo Nation's Coal Leases, but also to seek to enjoin the

Navajo Nation from enforcing its Navajo Preference in

Employment Act. See Plaintiff's Opposition, at p. 8, lines 4-6,

p. 15, n.7. The Navajo Nation Preference in Employment Act

directs that “all employers doing business within the

territorial jurisdiction ... of the Navajo Nation, or engaged in

* As evidenced by these portions of the Courts’ opinions, the

EEOC ts mistaken in its assertion that the doctrine is not implicated

absent a “textually demonstrable constitutional commitment.” See

44a

any contract with the Navajo Nation, shall . . . “give

preference in employment to Navajos. . .” 15 NNC § 604. The

EEOC suggests, however, that the Navajo Nation is free only

to require that private company such as Peabody Coal

operating on their reservations “adopt hiring preferences for

all Native Americans living on or near the reservations,” but

not to adopt hiring preferences applicable to Navajos only.

See id. at p. 15 n.7. In Plaintiff's Motion to Strike Portions of

The Statement of Facts and Affidavits Submitted by

Defendant. in fact, the EEOC describes “the central issue in

this case” as “whether the Navajo Nation can discriminate

against non-Navajo Native Americans.” See Plaintiff's

Motion to Strike, p.2, Il. 19-20. The EEOC suggests,

moreover:

There is nothing in Title VII which says that the

Navajo Nations, as a sovereign subordinate to the

superior sovereignty of the United States, cannot be

enjoined from engaging in actions clearly prohibited

by Title VII.

See Plaintiff's Opposition, at page 8, lines 4-6.

This EEOC position on its face appears to be in direct

contradiction to the position taken by the United States

Department of the Interior through its approval and signature

of its authorized representatives on the Coal Leases

containing the Navajo Employment Preference provision at

issue.

The EEOC concedes in this action that the documents

offered by Peabody Coal, specifically the 1961 Navajo

Permit, the 1964 Joint Use Permit, the Hopi Lease, and 1964

Navajo Coal Lease No. 8580 and the 1966 Navajo Coal Lease

No. 9910, contain the terms outlined. It is therefore

undisputed that the permits and leases at issue was approved

and signed by a representative of the United States

Department of the Interior. It is undisputed that these

documents are replete with provisions that require the

oversight of the Secretary of the Interior. It is undisputed that

See eae ~ - - - — a eee eee —— ee

45a

the Secretary of the Interior has specific authority to declare

either of these leases “null and void” when in the opinion of

the Secretary of the Interior and the Mining Engineer of the

Navajo Tribe, “there has been a violation of any of the terms

and conditions of the lease.” Moreover, it is undisputed that

Navajo Coal Lease No. 9910 is specifically entitled: “United

tates Department of the Interior Bureau of Indian Affairs

Mining Lease between Sentry Royalty Company [predecessor

in interest to Peabody Coal] and the Navajo Tribe State of

Arizona. “Finally, the EEOC has stipulated that the

amendments to these Coal Leases “did not change, or address,

the hiring preferences outlined in those leases.” Thus, it is

undisputed that as recently as 1999, the Secretary of the

Interior through its authorized representative, approved or

signed off on the Navajo Employment Preference provision.

2. The EEOC’s Objections

The EEOC in fact has offered no evidence at all to

dispute the evidence offered by Peabody Coal. Nor has the

EEOC suggested that the testimony offered by Peabody Coal

attorneys is false or that these attorneys are somehow wrong

in their sworn testimony that it is their understanding that the

Secretary of the Interior drafted the initial documents, and

routinely requires this type of provision in such leasing

agreements.

Instead, the EEOC moves to strike these sworm

statements, on the grounds that the attorneys making the

Statements do not have personal knowledge necessary to

make these statements. This Court declines to do so. Attorney

Sullivan, senior counsel for Peabody Holding Company, Inc.,

who serves as primary in-house counsel for Peabody Coal,

testified that in that capacity he had “become familiar with

numerous documents reflecting the relationship between

Sentry Royalty Company (“Sentry”) PWCC’s [Peabody

Coal’s] predecessor in interest, and both the Navajo Tribe and

the Hopi Tribe.” He testified that those documents included

the Navajo Coal Lease No. 8580 and Navajo Coal Lease

46a

9910, and the amendments thereto. By virtue of his

experience and his review of these documents in his capacity

as in-house counsel for Peabody Coal, Attorney Sullivan had

the personal knowledge and competency required under the

governing law to testify as to his understanding as to the

documents’ origin, development and meaning. See, e.g,

Barthelemy v. Air Lines Pilots Assoc., 897 F.2d 999, 1017

(9th Cir. 1990) (corporate officers’ “personal knowledge and

competence to testify are reasonably inferred from their

positions”); Federal Sav. & Loan Ins. Corp. v. Griffin, 935

F.2d 691, 702 (Sth Cir. 1991) (corporation's senior attorney

could testify to matters in affidavit that the learned through

the corporation’s business records, even though he did not

have “personal knowledge” as to all matters). Former

Peabody Coal ge1eral counsel Attorney Young testified by

affidavit that in his capacity as general counsel and as part of

his job duties, he “became familiar with lease agreements that

Peabody predecessor, Sentry Royalty Company, entered into

with the Navajo Nation for coal mining operations . . . [and]

with the terms of coal mining leases that other entities had

with the Navajo Nation.” Based on his experience and job

duties, attorney Young had the personal knowledge and

competency required under the governing law to testify as to

his understanding that the Secretary of the Interior required

the Navajo Employment Preference as a condition of the

leases. See id.

Even if the Peabody Coal’s counsels’ statements to

which the EEOC objects were stricken, however, this Court

finds that the actual Permits and Coal Leases in the

undisputed record before this Court provide ample support for

the proposition that the Secretary of the Interior, through the

Bureau of Indian Affairs, has to this date a policy of requiring

or at least approving Navajo Employment Preference

provisions in Coal Leases executed by private companies with

the Navajo Nation.

The EEOC’s position in this lawsuit therefore is in direct

contradiction to the position of the Secretary of the Interior.

47a

Any decision by this Court would of necessity require it to

make an initial policy choice between the EEOC’s

enforcement of Title VII and its underlying policies against

discrimination and the Secretary of the [nterior’s policies and

practices with regards to Indian tribes. This is the type of case

presenting “the impossibility of deciding without an initial

policy determination of a kind clearly for non judicial

discretion” that is not appropriate for judicial resolution See

Baker v. Carr, 369 U.S. at 217, 82 S. Ct. at 710. Moreover,

any decision by this Court would require it to show a lack of

respect for one of the two governmental entities: either the

EEOC or the Department of the Interior. For this reason also,

this case presents a nonjusticiable political question. See id. (a

political question is presented when it is clear “the

impossivility of a court’s undertaking independent resolution

without expressing lack of the respect due co-ordinate

branches of government”). Finally, any decision by this Court

is likely to lead to the potential “of embarrassment from

multifarious pronouncements by various departments on one

question.” See id. The EEOC and the Department of the

Interior, through the Bureau of Indian Affairs, have different

interests and opposing views on the issue of the Navajo

Employment Preference provision. For all of these reasons,

this Court finds that this case presents a nonjusticiable

political issue, and it must be dismissed on this alternative

ground also. See id.

Accordingly,

IT IS HEREBY ORDERED that Defendant's

Motion for Summary Judgment (Doc. # 38) is GRANTED;

IT IS FURTHER ORDERED that Plaintiff's

Motion to Strike Portions of the Statement of Facts and

Affidavits Submitted by Defendant in Support of its Motion

for Summary Judgment (Doc. # 43) is BENIED;

48a

IT IS FURTHER ORDERED that Defendant's

Motion to Strike Plaintiff's Reply in Support of Plaintiff's

Motion to Strike as Untimely (Doc. # 49) is DENIED;

IT IS FURTHER URDERED that Defendant's

Motion to Dismiss and/or Stay and/or Motion to Strike (Doc.

# 24) is VACATED AS MOOT;

IT IS FURTHER ORDERED that Delbert Mariano

and Thomas Sahu’s Motion to Intervene as Plaintiffs (Doc. #

23) is VACATED AS MOOT.

IT IS FURTHER ORDERED That Clerk of the

Court shall ENTER JUDGMENT ACCORDINGLY.

DATED this 24th day of September, 2002.

Mary H. Murguia

United States District Judge

49a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 02-17305

D.C. No. CV-01-01050 MHM

District of AZ, Phoenix

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - App cllant,

VS.

PEABODY COAL COMPANY,

Defendant - Appellee.

DELBERT MARIANO; THOMAS SAHU,

Applicants in intervention.

ORDER

Before: HUG, ALARCON, and W. FLETCHER, Circuit

Judges.

The panel has voted to deny the petition for rehearing.

Judge Fletcher has voted to deny the petition for rehearing en

banc; and Judges Hug and Alarcon so recommend.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested a

vote on whether to rehear the matter en banc. Fed. R. App. P.

35.

The petition for rehearing and the petition for rehearing

en banc, filed April 22, 2005, are DENIED.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.