Ken St. Marks v. U.s. Department of the Interior

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEN ST. MARKS,
Petitioner,
THE CHIPPEWA CREE TRIBE OF THE
ROCKY BOY’S RESERVATION,
MONTANA,
Intervenor,
v.
U.S. DEPARTMENT OF THE INTERIOR;
RYAN K. ZINKE, in his official capacity as
Secretary of the Interior,
Respondents.
No. 15-71909
MEMORANDUM*
On Petition for Review of an Order of the
Department of Interior
Argued and Submitted March 12, 2018
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**
District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Chippewa Cree Tribe (“Tribe”) removed St. Marks from his position as
Chairman of the Tribe’s Business Committee (“Committee”)—its governing
body—after he reported to the Department of the Interior (“Department”) that
members of the Committee were misusing funds the Tribe had received through
the American Recovery and Reinvestment Act (“ARRA” or “the Act”), Pub. L.
No. 111-5, 123 Stat. 115 (2009). The Department awarded St. Marks
approximately $650,000 in relief, including front pay, back pay, travel costs, and
legal fees. St. Marks petitioned for review, raising three challenges to the
Department’s calculation of his award.1
Agency action may be set aside only if “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We
will “overturn an agency’s determination of a civil penalty” only if “unwarranted
1 The Tribe also filed a petition for review, which we deny in full in a
separate opinion. St. Marks argues that we lack jurisdiction over the Tribe’s
petition, at least to the extent that the Tribe asks us to revisit the merits of the
Department’s underlying determination. It is not clear that St. Marks can
challenge our jurisdiction over the Tribe’s petition given that he is not a party to
that proceeding, but his two arguments fail regardless. First, the Tribe timely
petitioned for review of the Department’s final April 2015 order under 5 U.S.C.
§ 551(6). Although the Department issued an earlier order in December 2014, it
was not a final agency action for purposes of the Administrative Procedure Act,
which governs judicial review of ARRA determinations. See ARRA § 1553(c)(5),
123 Stat. at 300; Bennett v. Spear, 520 U.S. 154, 177 (1997). Second, federal law
does not require that the Tribe obtain approval for its choice of representation. See
25 U.S.C. § 81. And even if it did—or even if we were to consider whether tribal
law imposes such a requirement—St. Marks has cited no authority for the
proposition that this requirement should act as a jurisdictional bar.

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in law or unjustified in fact.” Ketchikan Drywall Servs., Inc. v. Immigration &
Customs Enf’t, 725 F.3d 1103, 1110 (9th Cir. 2013) (internal citation omitted).
Because the Department’s calculation of St. Marks’s award is neither unwarranted
nor unjustified, we DENY the petition.
First, it was reasonable for the Department to decide that St. Marks was not
entitled to compensatory damages arising from his failed attempt to purchase a
nearby hotel. St. Marks argues that the Tribe is responsible for this loss because
his removal from the Committee prevented him from securing a loan to complete
the purchase. As the Department explained, however, the evidence does not
establish that St. Marks’s inability to acquire a loan was directly connected to his
removal. St. Marks’s communication with various lenders shows that he was not
guaranteed to be approved absent his conflict with the Tribe, and at least one bank
denied St. Marks’s request for reasons entirely unrelated to this dispute. Moreover,
although St. Marks now cites to the hotel’s recent profits to support his damages
estimate, this figure was highly speculative at the time he submitted his request to
the agency. The Department thus “articulated a rational connection” between the
facts and its decision to deny relief on this basis. See Ariz. Cattle Growers’ Ass’n
v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir.
2001).
Second, the Department’s attorney’s fees calculation was not arbitrary and

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capricious. Although the Act allows the Department to award fees “that were
reasonably incurred by the complainant for, or in connection with, bringing the
complaint regarding the reprisal,” ARRA § 1553(c)(2)(C), 123 Stat. at 300, there is
no requirement that the agency award fees at all, see id. And given the sprawling
nature of St. Marks’s conflict with the Tribe, it was reasonable for the Department
to decline to award fees arising from later iterations of their dispute, including fees
incurred in connection with the two suits the Tribe filed against St. Marks in tribal
court. The Department might otherwise have been authorizing an essentially
ongoing award of fees.2
Finally, St. Marks is not entitled to either pre- or post-judgment interest on
his award. To begin, St. Marks forfeited any claim to prejudgment interest when
he failed to request it from the Department. See Reid v. Engen, 765 F.2d 1457,
1460 (9th Cir. 1985). Because there is nothing in the statute that provides for
interest on an award, it was incumbent upon St. Marks to provide the Department
with an opportunity to decide in the first instance whether prejudgment interest
2 St. Marks forfeited the separate argument that he was entitled to attorney’s
fees arising out of his attorney’s preparation of the fee request by failing to request
this relief from the Department. See Reid v. Engen, 765 F.2d 1457, 1460 (9th Cir.
1985) (“As a general rule, if a petitioner fails to raise an issue before an
administrative tribunal, it cannot be raised on appeal from that tribunal.”). As the
Department explained, St. Marks could have submitted a timely addendum that
included the fees incurred in preparing the underlying fee request, but he did not do
so.

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was appropriate. With respect to post-judgment interest, St. Marks has not
identified a source of statutory authority to support this request. Although 28
U.S.C. § 1961 allows for the assessment of post-judgment interest on attorney’s
fees, the statute “does not extend to agency awards.” Hobbs v. Dir., Office of
Workers Comp. Programs, 820 F.2d 1528, 1531 (9th Cir. 1987); see also 28
U.S.C. § 1961 (allowing for the recovery of interest on “any money judgment in a
civil case recovered in a district court” (emphasis added)).
St. Marks notes that the Department never ruled on his request that the Tribe
deposit the award in escrow prior to appealing. Had the Department granted this
request, his award would have earned interest during the pendency of this appeal,
thus providing him a form of post-judgment interest. But St. Marks did not raise
this argument in his opening brief, depriving the Department of an opportunity to
respond. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th
Cir. 2001) (“[I]ssues which are not specifically and distinctly argued and raised in
a party’s opening brief are waived.”). We thus decline to use the Department’s
failure to rule on this request as the basis for an award of post-judgment interest.
This decision is without prejudice to St. Marks’s making a request to the
Department that he be awarded post-judgment interest, to the extent a procedural
avenue for doing so remains.
PETITION DENIED.

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