United States District Court, D. Maine
For ELIZABETH RASSI, ex rel USA, Plaintiff: BRETT D. BABER, LEAD ATTORNEY, LANHAM BLACKWELL, P.A., BANGOR, ME.
For FEDERAL PROGRAM INTEGRATORS LLC, PENOBSCOT INDIAN NATION ENTERPRISES, Defendants: KAIGHN SMITH, JR., DRUMMOND WOODSUM, PORTLAND, ME.
For EX REL USA, Interested Party: ANDREW K. LIZOTTE, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, DISTRICT OF MAINE, PORTLAND, ME.
ORDER ON THE DEFENDANTS' MOTION TO DISMISS, OR, IN THE ALTERNATIVE, TO STAY PENDING RESOLUTION BY THE TRIBAL COURT
Jon D. Levy, UNITED STATES DISTRICT JUDGE.
This matter is before the court on the defendants' motion to dismiss the Third Amended Complaint (ECF No. 30) without prejudice, or, in the alternative, to stay the case in order for the Penobscot Nation Tribal Court (the " tribal court" ) to determine whether it has jurisdiction over the Plaintiff's claims and remedies. For the reasons discussed below, I conclude that the case should be stayed pending the tribal court's determination of its jurisdiction over the case, and if such jurisdiction is found, pending the tribal court's adjudication of the case on the merits.
I. FACTUAL BACKGROUND
Penobscot Indian Nation Enterprises (" PINE" ) is a federally-chartered corporation located on Indian Island, Maine, established in accordance with § 17 of the Indian Reorganization Act (" IRA" ), 25 U.S.C. § 477. ECF No. 33 at 2. Among
the activities permitted by PINE's federal charter is the power to form " subsidiaries, corporations, [and] limited liability corporations" which enjoy the same rights and privileges that PINE enjoys pursuant to its charter. ECF No. 33-1 at 11.
In 2008, PINE formed co-defendant Federal Program Integrators, LLC (" FPI" ), as a Maine LLC and became its sole member. ECF No. 33 at 4. FPI participates in the Small Business Administration's (" SBA's" ) § 8(a) Business Development Program (" § 8(a) program" ), which awards federal government contracts on a preferential basis to businesses with disadvantaged owners. Id. at 5.
From December 2010 until April 2012, the Plaintiff, Elizabeth Rassi (" Rassi" ), was the senior accountant for FPI and PINE. ECF No. 30 at 1. Rassi alleges that in the course of her employment, she complained multiple times to officers and managers of FPI and PINE about instances of illegal conduct involving the performance of FPI's § 8(a) contracts. Id. at 3. For example, Rassi alleges that she complained that FPI had misrepresented to the federal government that it was performing the mandated amount of direct labor under its contracts as required by the § 8(a) program, when in fact it was not. Id. She also alleges that she complained about the payment of alleged kickbacks by FPI to consultants and subcontractors. Id.
Rassi claims that as a result of her complaints to PINE and FPI management, she was subjected to retaliation and harassment in violation of the False Claims Act, 31 U.S.C. § 3730(h). ECF No. 30 at 5-6. She also claims that she was excluded from pay increases and promotions, and was disparaged by co-workers and managers on account of her race as a non-Indian, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et. seq. Id. at 7.
PINE and FPI have moved to dismiss Rassi's complaint without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 33. Alternatively, the defendants request, pursuant to the tribal exhaustion doctrine, a stay of the case to allow the Penobscot Nation Tribal Court to determine whether it has jurisdiction over Rassi's claims, and, if so, to adjudicate those claims. Id. at 12-13. Rassi opposes the motion with ...