The Chippewa Cree Tribe of Rocky Boy's Reservation, Montana, Petitioner,
U.S. Department of the Interior; Ryan K. Zinke, in his official capacity as Secretary of the Interior; Ken St. Marks, Respondents.
and Submitted March 12, 2018
Petition for Review of an Order of the Department of the
Richard J. Zack (argued) and Jay A. Dubow, Pepper Hamilton
LLP, Philadelphia, Pennsylvania, for Petitioner-Intervenor.
Jeffrey S. Rasmussen (argued), Fredericks Peebles &
Morgan LLP, Louisville, Colorado, for Respondent-Petitioner.
Lilley (argued) and Marleigh D. Dover, Appellate Staff; Chad
M. Readler, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondents.
Before: Paul J. Watford and Michelle T. Friedland, Circuit
Judges, and Gary Feinerman, [*] District Judge.
Issues / Whistleblower
panel denied a petition for review by the Chippewa Cree Tribe
challenging a decision of the U.S. Department of the Interior
that ordered the Tribe to provide relief to Ken St. Marks,
who was removed from the Tribe's governing body - the
Business Committee - in retaliation for his whistleblowing.
Marks informed the Department of the Interior that members of
the Business Committee were misusing federal stimulus funds
awarded to the Tribe by the Department pursuant to the
American Recovery and Reinvestment Act. The Act contains
robust whistleblower protections.
panel rejected the Tribe's challenges to the Department
of Interior's decision. First, the panel held that St.
Marks was an "employee" and eligible for
whistleblower protection under the Act because he provided
services on behalf of his employer, the Tribe. Second, the
panel held that the Department's order did not infringe
on the Tribe's sovereignty and powers of self-governance,
and moreover, the Tribe voluntarily agreed to federal
oversight when it accepted the stimulus funds. Third, the
panel held that the Tribe did not have a due process right to
a hearing with cross-examination before the Department
reached its conclusion where the Tribe consented to the
procedures outlined in the Act, which do not include a
hearing. The panel noted that the Department did commit a
procedural error where the Tribe did not have access to the
Inspector General's report until the Department issued
its preliminary decision, but this was harmless error.
Finally, the panel held that the Department did not err in
finding that the removal of St. Marks was retaliatory.
panel held that the Tribe could not raise for the first time
on appeal its argument that the Department incorrectly
calculated St. Marks's monetary award.
panel addressed St. Marks's petition for review in a
concurrently filed memorandum disposition.
FRIEDLAND, CIRCUIT JUDGE
Marks, a member of the Chippewa Cree Tribe
("Tribe"), informed the Department of the Interior
("Department") that he believed members of the
Tribe's governing body, known as the Business Committee
("Committee"), were misusing federal stimulus
funds. Members of the Tribe subsequently elected St. Marks
Chairman of the Committee, a position he held for five months
before being removed by the other members of the Committee.
St. Marks alleged that the Committee took this action in
retaliation for his whistleblowing. After an investigation,
the Department agreed and ordered the Tribe to provide
relief, including back pay, to St. Marks. The Tribe now
petitions for review, raising procedural and substantive
challenges to the Department's decision. We deny the
stimulus funds at issue here were awarded to the Tribe by the
Department pursuant to the American Recovery and Reinvestment
Act ("ARRA" or "the Act"). Congress
passed ARRA to mitigate the impact of the 2008 recession, in
part by rapidly funding a variety of state, local, and tribal
projects. See Pub. L. No. 111-5, § 3, 123 Stat.
115, 115-16 (2009). To safeguard these funds, Congress
enacted robust whistleblower protections for employees of any
non-federal entity receiving funds under the Act. ARRA §
1553(a), 123 Stat. at 297-302. As relevant here, the Act
provides that an employer may not discharge an employee in
retaliation for the disclosure of "information that the
employee reasonably believes is evidence of" the
"gross mismanagement of an agency contract or grant
relating to covered funds." § 1553(a)(1), 123 Stat.
employee files a whistleblower complaint, the office of the
inspector general ("IG") for the agency awarding
the funds has 180 days to investigate the complaint and
submit a report of its findings "to the person, the
person's employer, [and] the head of the appropriate
agency." § 1553(b)(1)-(2), 123 Stat. at 297-98.
After the agency receives the IG's report, it must
determine whether the complainant has been the victim of a
reprisal prohibited by ARRA's whistleblower protections.
§ 1553(c)(2), 123 Stat. at 300. If the employee
establishes that his or her disclosure "was a
contributing factor in the reprisal," §
1553(c)(1)(A)(i), 123 Stat. at 299, the burden then shifts to
the employer to show by "clear and convincing
evidence" that it would have removed the employee
"in the absence of the disclosure," §
1553(c)(1)(B), 123 Stat. at 299. If the agency concludes that
a prohibited reprisal has occurred, it may order various
forms of relief, including compensatory damages and
reinstatement. § 1553(c)(2), 123 Stat. at 300.
and 2010, the Tribe received over $27 million in stimulus
funds to complete construction of a water pipeline on its
reservation. The Tribe had previously entered into funding
agreements with the Department that authorized the Tribe to
administer the federal funds it received in those years.
See 25 U.S.C. § 5363. As a condition of
receiving the water pipeline funding, the Tribe executed two
modifications to those preexisting agreements. The modified
agreements required the Tribe to comply with the Act's
whistleblower protections, and specifically provided that
those protections would be "enforceable pursuant to
processes set up by ARRA."
Marks owns a construction company that was involved in
building the pipeline paid for by the stimulus funds. In
August 2012, St. Marks reported to the Department that he
believed members of the Tribe, including individuals on the
Tribe's governing Committee, were misusing ARRA funds.
Three months later, members of the Tribe elected St. Marks to
serve as Chairman of the Committee.
Marks contends that he informed members of the Tribe of the
alleged fraud in an open letter on March 5, 2013, but the
Committee disputes that the letter was ever sent. Later that
same week, St. Marks filed a whistleblower complaint with the
Department, alleging that he had "been threatened and
retaliated against," and that there was a petition
circulating to remove him as Chairman. The Committee
subsequently removed St. Marks from his position on March 25,
2013, for "neglect of duty and gross misconduct."
began investigating St. Marks's whistleblower complaint
that spring. After interviewing employees of the Tribe and
other witnesses, the IG submitted its report to the
Department about a year later. The report discussed the
factual background of the investigation, but it offered no
conclusion as to whether St. Marks was the ...