Tribes v. First Bank & Trust Co.

CHEYENNE AND ARAPAHO TRIBES, on its own behalf and as parens patriae onbehalf of its members; CHEYENNE AND ARAPAHO TRIBES' EXECUTIVE BRANCH, Plaintiffs-Appellants, v. FIRST BANK & TRUST COMPANY; DOUG HAUGHT, in his official capacity asa District Judge, State of Oklahoma, Defendants-Appellees.

No. 13-6117

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Filed: February 11, 2014

(D.C. No. 5:12-CV-00514-F)

(W.D. Okla.)

ORDER AND JUDGMENT^*

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and BACHARACH, Circuit Judge.

The Cheyenne and Arapaho Tribes ("Tribes") and the Cheyenne and Arapaho Tribes' Executive Branch ("Executive Branch") (together with the Tribes, "Plaintiffs"), appeal from the district court's orders and judgments dismissing their claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In February 2011, the Tribes opened accounts with defendant First Bank & Trust Company ("First Bank"). At the time, Janice Prairie Chief-Boswell ("Boswell") was the Tribes' governor. Boswell signed the contracts and signature cards, and she was the sole signatory on the accounts, which held some $7 million in funds that the federal government, the State of Oklahoma, and the Tribes had appropriated for the administration of various programs. After an intra-tribal controversy arose regarding whether the Tribes' governor was Boswell or Leslie Wandrie-Harjo ("Harjo"), First Bank filed an action in the District Court of Custer County, Oklahoma. First Bank sought a declaration as to whether it should recognize Boswell or Harjo as the authorized signatory on the Tribes' accounts, and a declaration absolving it from liability concerning signatory authority for the accounts. The case was assigned to the Honorable Doug Haught, also a defendant in this matter. In addition to the Tribes, First Bank named Boswell and Harjo as defendants in their representative capacities, if any.

In April 2012, an attempt to transfer the Tribes' funds to another institution caused First Bank to place an administrative freeze on the accounts pending adecision from Judge Haught. In June 2012, Judge Haught denied First Bank's request for declaratory relief. He ruled that the Tribes had waived their sovereign immunity from state-court jurisdiction by signing contracts with First Bank subjecting the accounts to Oklahoma law, but he concluded that the state court lacked jurisdiction to resolve the gubernatorial dispute because it was a matter exclusively for the tribal courts. Judge Haught converted the Tribes' accounts to court-supervised accounts, directing First Bank not to dispense any of the funds except on the court's order. That decision is presently on appeal. Judge Haught later denied First Bank's motion to close the accounts on the ground that he was prohibited from determining whether to release the funds to Boswell or Harjo.

Meanwhile, on May 4, 2012, Plaintiffs filed the action underlying this appeal against First Bank and Judge Haught in his official capacity (collectively, "Defendants"). Plaintiffs asserted eleven claims in the operative pleading. Claims 13 and 6 asserted that, through the administrative freeze and the state court action, Defendants violated various federal constitutional rights and Plaintiffs' tribal sovereign immunity. Claim 4 alleged that Defendants violated Plaintiffs' right to be free from state interference with their sovereignty as secured by treaties with the United States. Claim 5 asserted unspecified violations of the Oklahoma Enabling Act,¹ and Claim 7 asserted a state-law claim that First Bank had intentionallyinterfered with the Tribes' contracts with the federal government and the State of Oklahoma. In Claims 1-7, Plaintiffs sought damages. Claim 1 specifically referenced 42 U.S.C. § 1983; Claims 2-6 did not reference § 1983 or any other cause of action. In Claim 11, Plaintiffs asked for attorneys' fees under 42 U.S.C. § 1988.

In addition to their damages claims, Plaintiffs sought in Claim 8 an injunction against the administrative freeze, any charges related to it, First Bank's continued prosecution of the state court action, and Judge Haught's continued exercise of jurisdiction over the state court action. In Claim 9, they sought declarations that the administrative freeze violated the rights asserted in Claims 1-6, was in excess of First Bank's authority, and interfered with the Tribes' right to govern themselves. In Claim 10, they sought declarations that Judge Haught's continued handling of the state court action exceeded his jurisdiction and that Defendants' use of state court process violated Plaintiffs' rights, privileges, and immunities secured by the United States Constitution and federal law, specifically their tribal sovereign immunity. The claims for declaratory relief referenced the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, but the claim for injunctive relief did not specify any particular basis of authority.

After the federal district court denied Plaintiffs' motion for preliminary relief, Defendants filed motions to dismiss, which the court granted. As to Judge Haught,the court first ruled that Plaintiffs' federal claims for damages (Claims 1-4 and 6) were brought under 42 U.S.C. § 1983 and barred by the Eleventh Amendment's grant of sovereign immunity to the states. The court determined that to the extent the claim for injunctive relief against Judge Haught (Claim 8) was brought under § 1983, Plaintiffs had not established either of the statutory conditions that permit such relief against a judicial officer—that "a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983. The court also relied on the Anti-Injunction Act, 28 U.S.C. § 2283 ("AIA").

The district court next concluded that Plaintiffs were not "persons" authorized to bring an action under § 1983 because they sought to enforce a sovereign interest— tribal sovereign immunity. Therefore, they could not sue under § 1983 in parens patriae, which requires the assertion of a quasi-sovereign interest, and their claim for declaratory relief against Judge Haught (Claim 10) failed to the extent it was based on § 1983 and brought under Ex Parte Young, 209 U.S. 123 (1908).² The court further concluded that the Executive Branch had not demonstrated it was an entity separate from the Tribes and entitled to bring a § 1983 action. It dismissed Plaintiffs' claim against Judge Haught for declaratory relief to the extent it was based on 28 U.S.C. §§ 2201 (declaratory relief), 1331 (federal question), and 1362 (tribalplaintiff/federal question), holding that a declaration would have the same effect as an injunction barred by the AIA.

Turning to the claims against First Bank, the district court ruled that any § 1983 claims must be dismissed because First Bank was not a state actor. The court also concluded that the AIA barred claims for injunctive and declaratory relief insofar as those claims attacked First Bank's maintenance of the state court action. It further determined that Plaintiffs were not entitled to a declaration under 28 U.S.C. § 2201 that the administrative freeze was improper because the Fourth Amendment's protection against unlawful seizures applies only to governmental action.

Having concluded that all the substantive federal claims should be dismissed under either Fed. R. Civ. P. 12(b)(1) or (b)(6), the district court ruled that Plaintiffs were not entitled to attorneys' fees under § 1988, and it declined to exercise supplemental jurisdiction over any state-law claims.³ Plaintiffs filed a motion for post-judgment relief under Fed. R. Civ. P. 59(e) and 60(b)(6), seeking vacatur or modification of the dismissal order. They argued that a § 1983 claim against Judge Haught was permissible because the state court proceeding was a nullity, that they had established federal question jurisdiction under 28 U.S.C. § 1331 and/or § 1362, and that the court should have dismissed their federal claims without prejudice so they could amend their pleadings to clarify that Claims 2-4 and 6 were not basedsolely on § 1983. The district court denied Plaintiffs' motion for post-judgment relief except for clarifying that the dismissal of the § 1983 claims for monetary damages against Judge Haught was without prejudice. This appeal followed.

II

Before considering the district court's rulings, we first must address Defendants' contention that Plaintiffs lack standing. Their argument is based on the intra-tribal gubernatorial dispute—this action was filed by the Tribes through an attorney general and assistant attorney general that Boswell had appointed, but Harjo unsuccessfully moved to intervene in this action through an attorney general she had appointed. Characterizing the Plaintiffs as Boswell and her attorney general, Harjo claimed that Plaintiffs were former tribal officials with no capacity to sue on the Tribes' behalf.⁴ Similarly, Defendants argue that Plaintiffs lack standing absent proof that Boswell's attorney general was authorized to file the action.⁵

We express no opinion as to the proper representatives of the Tribes, but we reject Defendants' argument because Article III standing generally concerns the parties, not their representatives. See, e.g., Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (stating that Article III standing "requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision" (emphasis added)); id. at 2662 ("To have standing, a litigant must seek relief for an injury that affects him in a personal and individual way." (emphasis added) (quotation omitted)).

Defendants point to no authority, nor have we uncovered any, supporting the proposition that the authority of Boswell's attorney general affects the Tribes' standing. The only case Defendants rely on, Davis v. Hudson Refinery, 498 F. App'x 779, 782 (10th Cir. 2012) (un...