Navajo Housing Authority v. Navajo Nation Labor Commission

12 Am. Tribal Law 415
Navajo Nation Supreme Court·Decided May 22, 2015·No. Nos. SC-CV-31-14, SC-CV-32-14, SC-CV-33-14, SC-CV-34-14, SC-CV-35-14·Published

Opinion

OPINION

This consolidated action is before this Court on five separate petitions for a writ of prohibition against the Navajo Nation Labor Commission (“Commission”) on the grounds that the Commission lacks subject matter jurisdiction over the petitioners on the basis of sovereign immunity. We deny the writ of prohibition and remand the cases.

I

Petitioner Navajo Housing Authority (NHA) at one time employed each of the five claimants in this consolidated writ action, whose separate Cases remain pending before the Commission. All the claimants except one claim they were unjustly discharged by NHA. The fifth claimant resigned voluntarily but disputes NHA’s calculation of her annual leave payout, claiming a substantial underpayment. All pursued NHA’s internal grievance process, four losing before the NHA Griev-anee Committee and one told by NHA mid-process and without explanation that the internal grievance process was being suspended and that she should file an Office of Navajo Labor Relations charge, which is the first step toward the filing of a complaint before the Commission. All subsequently proceeded to file Navajo Preference in Employment Act (NPEA) complaints before the Commission, seeking monetary and non-monetary relief as authorized at 15 N.N.C. § 612(A) for violations of the NPEA.

Specifically, 15 N.N.C. § 612(A)(1) provides that, upon a finding of an NPEA violation, the Commission is to issue a remedial order that shall include, “without limitation, directed hiring, reinstatement, displacement of non-Navajo employees, back-pay, front-pay, injunctive relief, mandated corrective action to cure the violation within a reasonable period of time, and/or, upon a finding of intentional violation, imposition of civil fines; provided that liability for back-pay or other forms of compensatory damages shall not accrue from a date more than two years prior to the date of filing of the Charge which is the basis for the complaint.” Section 612(A)(2) permits the award of costs and attorney’s fees in certain circumstances.

NHA filed separate petitions for a writ of prohibition requesting that this Court prohibit the Commission from hearing any of the five cases on the basis of lack of subject matter jurisdiction due to sovereign immunity as set forth at 6 N.N.C. § 623 of NHA’s Plan of Operations. NHA argues that this Court’s decision in NHA v. Johns, 11 Am. Tribal Law 31 (Nav.Sup. Ct.2G12) provided that sovereign immunity [417] springs from within the NHA’s Plan of Operations itself and not the Navajo Sovereign Immunity Act (NSIA) and further provided that NHA’s immunity from money judgments must be separately and specifically waived in order for monetary claims under the NPEA to be pursued against NHA. NHA argues that since NHA has not specifically waived its immunity under 6 N.N.C. § 623 as to NPEA claims, nor has it entered into employment contracts specifically acknowledging the application of the NPEA it is immune from money judgments in such claims; therefore, the Commission lacks jurisdiction to hear such claims.

We granted an alternative writ to stay the Commission’s proceedings and posed five specific questions to the parties, namely, (i) why the Commission also loses jurisdiction over the non-monetary portions of the Real Parties in Interest (RPI)’s NPEA claims; (ii) why 15 N.N.C. § 609 of the NPEA requiring that all transactional documents on the Navajo Nation entered into by an employer contain an agreement to strictly abide by all requirements of the NPEA or otherwise have the terms and provisions of the NPEA “incorporated therein as a matter of law” does not apply; (iii) whether NHA’s immunity can be broader than its parent, the Navajo Nation government; (iv) in what way insurance proceeds are, or are not, “property” within the meaning of 6 N.N.C. § 623; and (v) why front-pay or back-pay is not vested in an employee under an existing budget rather than considered a money judgment. Oral argument was held on September 5, 2014 at the Navajo Department of Transportation in Tse Bonito. We now issue our decision.

II

NHA’s case, in its briefs and at oral argument, may be summarized as follows. NHA believes its immunity at 6 N.N.C. § 623 is “unique” due to its receipt of federal housing dollars, and that this Court’s opinion in NHA v. Johns requires there must be an express waiver of 6 N.N.C. § 623 by contract rather than apply the exceptions to immunity under 1 N.N.C, § 554 of the NSIA. Also relying on NHA v. Johns, NHA argues that that the NPEA does not supersede any provision in NHA’s Plan of Operations because this Court overruled, in its entirety, Tso v. NHA 8 Nav. R. 548, 5 Am. Tribal Law 438 (Nav.Sup.Ct.2004) including the Tso Court’s view that 6 N.N.C. § 623 was merely a “statutory exemption” overridden by the NPEA under the presumed intent of the Council. NHA goes on to assert that NHA is immune from NPEA monetary claims as 6 N.N.C. § 623 has not been specifically waived by contract as to NPEA claims.

Firstly, the immunity at 6 N.N.C. § 623 is not a general immunity from suit, but a “conditional limitation” on NHA’s qualified consent to sue and be sued as set forth at 6 N.N.C. § 616(B)(1). NHA v. Johns, 11 Am. Tribal Law at 38 (citing NHA v. Dana, 5 Nav. R. 157 (Nav.Ct.App.1987)), It exempts all NHA property and funds from judicial process but, however, provides for several specific exceptions: (1) when there is “specific reference in any statute citing this provision and stating clearly that the exception is waived”; (2) when NHA has obliged itself through pledges and liens; (3) when the federal government wishes to pursue remedies under the subchapter; and (4) when NHA pursues eviction actions.2 6 N.N.C. § 623. [418] At oral argument, NHA agreed that it could expend funds voluntarily to remedy employment-related issues through its internal grievance process and, otherwise, could obligate itself using any method so long as it is not compelled to do so under a money judgment. It is well within NHA’s powers pursuant to 6 N.N.C. § 616(B)(3) to enter “freely” into contracts with “any person.” There is no indication that contracts entered into by NHA require immunity waivers by specific reference to 6 N.N.C. § 623, nor does the provision so require.

Free access — add to your briefcase to read the full text and ask questions with AI

Navajo Housing Authority v. Navajo Nation Labor Commission, 12 Am. Tribal Law 415 (navajo 2015).

12 Am. Tribal Law 415 (Navajo Housing Authority v. Navajo Nation Labor Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Tso v. Navajo Housing Authority
8 Navajo Rptr. 548 (Navajo Nation Supreme Court, 2004)
Navajo Housing Authority v. Johns
11 Am. Tribal Law 31 (Navajo Nation Supreme Court, 2012)
Nelson v. Initiative Committee to Reduce Navajo Nation Council
8 Am. Tribal Law 407 (Navajo Nation Supreme Court, 2010)
In re Seanez
9 Am. Tribal Law 377 (Navajo Nation Supreme Court, 2011)