bound by precedents in this circuit which include Dozier v. Ford Motor Co., 227 U.S. App. D.C. 1, 702 F.2d 1189 (D.C. Cir. 1983), in which the Court of Appeals held that the doctrine of res judicata applies to a dismissal for lack of jurisdiction unless a "curable defect" has been remedied in the interim. The curable defect in this case, Alabama's Eleventh Amendment immunity, remains intact today.
The court's finding that Alabama has not waived its Eleventh Amendment immunity is based on several points. First, Alabama's entry into this lawsuit was for two extremely limited purposes: first, the litigation of whether the Commission violated the APA; and second, the determination of a declaratory judgment regarding the proper status of video pull-tab games. The States, in their motion to intervene, specifically limited their entry to these issues and expressly did not waive their immunity as to other issues, including suits brought under 25 U.S.C. § 2710(d)(7)(A) (the statute under which Indian tribes may bring suit for a State's failure to negotiate in good faith). Therefore, the State of Alabama did not expressly waive its Eleventh Amendment immunity, but rather expressly maintained it.
Second, the state did not implicitly waive its immunity either. Typically, for a court to find an implicit waiver of Eleventh Amendment immunity, the court must make two findings: first, that the counterclaim arises from the same event; and second, that the counterclaim is defensive, typically in the nature of recoupment. Woelffer v. Happy States of America, Inc., 626 F. Supp. 499, 502 (N.D. Ill. 1985). As for the second prong of this test, the counterclaim should not be "for the purpose of obtaining an affirmative judgment against the State." Ibid. (citation omitted).
Here, the Poarch counterclaim fits neither of these categories. As to the first category, although it is true that the subject of both lawsuits is related (in that both involve IGRA), the similarities end there. The underlying suit here is one involving the APA and asking the court for an interpretation of 25 U.S.C. §§ 2703(7) and 2703(8). The Poarch counterclaim, on the other hand, is a suit premised on 25 U.S.C. § 2710(d)(7)(A) and seeks declaratory and injunctive relief against the State of Alabama based on the State's alleged failure to negotiate in good faith. None of the issues necessary for determination of the counterclaim have arisen in the underlying action; nor do the cases arise from the same event. The only connection between the two suits is that both involve IGRA (although different sections thereof).
Poarch similarly fails the second part of the test. Rather than seeking defensive relief, Poarch here seeks an affirmative judgment against the State of Alabama. In Woelffer, also an injunction case, the court found that an injunction of the type plaintiffs seek could not be termed defensive. The court reaches the same result here. Poarch seeks to go significantly beyond the bounds of the present suit and obtain an affirmative judgment that the State of Alabama has failed to negotiate in good faith as well as an injunction that would force a Tribal-State compact. Such a judgment cannot be termed defensive. Thus, the court finds that the State of Alabama did not implicitly waive its Eleventh Amendment immunity.
Third, it is not at all clear that the State of Alabama's counsel would even have had the power to waive the State's Eleventh Amendment immunity. See Alabama v. Pugh, 438 U.S. 781, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978); Keenan v. Washington Metropolitan Area Transit Authority, 643 F. Supp. 324 (D.D.C. 1986). Under Alabama's Constitution, Article 1, § 14, officials in Alabama have no authority to waive the State's immunity.
As a result of each of these facts, the court finds that the State of Alabama did not waive its Eleventh Amendment immunity. The Dozier "curable defect" has not been cured, therefore, and the doctrine of res judicata applies. The State of Alabama's motion to dismiss the Poarch counterclaim is granted; the counterclaim filed by plaintiff Poarch Band of Creek Indians is dismissed with prejudice.
Plaintiffs' briefs are filled with information regarding the importance of video pull-tabs to tribal economies and the potential security benefits of computerized versions of the game. Concerns of this sort, however, do not assist a court examining an unambiguous statute like IGRA. Here, Congress has clearly expressed its intent that electronic facsimiles of games of chance - like video pull-tab games - not be within the jurisdiction of the Indian tribes (class II gaming), but rather be subject to Tribal-State compacts (class III gaming). Despite plaintiffs' numerous attempts to alter this conclusion, it is inescapable. Therefore, plaintiffs' motions for summary judgment must be and are denied, and defendants' and defendant-intervenors' motions for summary judgment must be and are granted. Finally, the State of Alabama's motion to dismiss the Poarch counterclaim is granted; the counterclaim filed by plaintiff Poarch Band of Creek Indians is dismissed with prejudice.
Royce C. Lamberth
United States District Judge
DATE: JUN 28 1993
ORDER AND FINAL JUDGMENT - June 28, 1993, Filed
This case comes before the court on motions for summary judgment filed by plaintiffs (two motions were filed on behalf of plaintiffs), defendants, and intervenor-defendants. Also before the court is the State of Alabama's motion to dismiss the counterclaim filed by the Poarch Band of Creek Indians. Upon consideration of these motions, the memoranda in support of them, and the oppositions and replies filed by the parties, and for the reasons stated in the accompanying memorandum opinion, it is hereby ORDERED that:
1. Plaintiffs' motions for summary judgment are DENIED.
2. Defendants' motion and intervenor-defendants' motion for summary judgment are GRANTED, and FINAL JUDGMENT is hereby entered for defendants and intervenor-defendants.
3. The motion to dismiss filed by the State of Alabama is GRANTED. The counterclaim filed by plaintiff Poarch Band of Creek Indians is DISMISSED WITH PREJUDICE.
4. This case is DISMISSED WITH PREJUDICE.
5. Plaintiffs' motion for postponement of hearing is DENIED AS MOOT.
Royce C. Lamberth
United States District Judge
DATE: JUN 28 1993