Viejas Band of Kumeyaay Indians

The panel has voted to deny the petition for rehearing in case number 10-56671; Judges Clifton and Ikuta vote to deny the petition for rehearing en banc, and Judge Farris so recommends. Judges Farris and Clifton vote to deny the petition for rehearing in case number 10-56706; Judge Clifton votes to deny the petition for rehearing en banc, and Judge Farris so recommends. Judge Ikuta votes to grant the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matters en banc. Fed. R. App. P. 35. The petitions for panel rehearing and the petitions for rehearing en banc are DENIED.

Earlier materials are here: panel opinion materials and en banc petition.

Pending Ninth Circuit En Banc Petition Materials in Maxwell v. County of San Diego

January 14, 2013Matthew L.M. Fletcher3 Comments

You’ll recall the panel opinion here found that tribal employees have no official immunity for official actions.

Here are the en banc petition materials:

Viejas Band En Banc Petition

Gila River Amicus Brief

Suquamish Tribe Amicus Brief

Yocha Dehe Wintun Nation Amicus Brief

Maxwell Response to En Banc Petition

Maxwell Supplemental Authorities Letter

The petition is still pending, but perhaps the Miller v. Wright amendment is evidence that the Ninth Circuit could take this case for en banc review.

Ninth Circuit Holds Tribal Workers May Be Sued for Money Damages for Official Actions

September 14, 2012Matthew L.M. Fletcher19 Comments

You read that right. A troubling case for tribal governments. Here the tribal workers were operating under a public safety cooperative agreement authorized under California statute in which the tribal government expressly reserved immunity.The facts truly are tragic — and bad facts make bad law. I’d say the fact that there’s a dissent is helpful, except our dissenter doesn’t object to the immunity holding.

The opinion in Maxwell v. County of San Diego is here. An excerpt:

In short, our tribal sovereign immunity cases do not question the general rule that individual officers are liable when sued in their individual capacities. We see no reason to give tribal officers broader sovereign immunity protections than state or federal officers given that tribal sovereign immunity is coextensive with other common law immunity principles. See Santa Clara Pueblo, 436 U.S. at 58. We therefore hold that sovereign immunity does not bar the suit against the Viejas Fire paramedics as individuals. The Viejas Band is not the real party in interest. The Maxwells have sued the Viejas Fire paramedics in their individual capacities for money damages. Any damages will come from their own pockets, not the tribal treasury. See Alden, 527 U.S. at 757.

This is incredibly glib discarding of Ex parte Young should worry tribal governments everywhere.

Briefs are here:

Maxwell Opening Brief

Viejas Answer Brief

Maxwell Reply

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