2016 WL 7508161 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
Dec. 15, 2016.


Attorneys and Law Firms
Eric Chester, Esq., for the Plaintiff.
Tawnii Cooper–Smith, Esq., for the Defendant.



I. Procedural Background

*1 The Plaintiff, Derrek Guertin, is a firefighter with the Mashantucket Pequot Fire Department (hereinafter “Fire Department”). On March 31, 2016, he commenced this action under Title 40, the Mashantucket Administrative Procedure Act (sometimes called “MAPA”), to seek review of a decision by the “Labor Relations” Department, pertaining to disciplinary action taken against him by the Fire Department.1 Thereafter the Defendant, Mashantucket Pequot Tribal Nation (hereinafter “Tribe”) filed a Motion to Dismiss asserting: (i) Lack of subject matter jurisdiction; and (ii) Lack of jurisdiction without an express waiver of sovereignty by the Tribe. It also observes that the Collective Bargaining Agreement between the Fire Department and the Firefighter’s Union (hereinafter “Union”) provides that final decisions under the Agreement may be appealed to this Court under Title 12. For the reasons hereinafter stated, the Court finds that it lacks subject matter jurisdiction over this appeal and hereby grants the Defendant’s Motion to Dismiss. Since the Court’s finding on subject matter jurisdiction is dispositive of this Motion, it need not reach the Tribe’s sovereignty argument, or its Title 12 claim.


II. Standard of Review

A motion to dismiss is the proper procedural vehicle for contesting the subject matter jurisdiction of the Court. Fletcher v. Mashantucket (Western) Pequot Tribe, 2 Mash.Rep. 443, 453, 3 Mash. 265 (1998); Milios v. Mashantucket Pequot Gaming Com’n, 3 Mash.Rep. 226, 228, 4 Mash. 109 (2000). “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or lacks jurisdiction based upon sovereign immunity from suit, the court shall dismiss the action.” M.P.R.C.P. 12(h)(3). See also Fletcher, 2 Mash.Rep. at 454, 3 Mash. 265 (“[i]f the face of the record indicates that the court is without jurisdiction, the complaint must be dismissed”). “When a court’s subject matter jurisdiction is challenged, the burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction.” Id. See also Chamberlin v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 187, 189, 2 Mash. 227 (1997), aff’d, 2 Mash.App. 25, 1 MPR 60 (1998). This Court does not have jurisdiction that has not been expressly conferred upon it. Milios v. Mashantucket Pequot Gaming Com’n, 3 Mash.App. 12, 15, 5 MPR 1 (2001).

III. Subject Matter Jurisdiction

The central issue between the parties is whether the Court can review the Plaintiff’s appeal as filed under Title 40. The Tribe contends that this Court lacks subject matter jurisdiction to hear the Plaintiff’s claim because it was not brought against a proper agency within the meaning of Title 40. Specifically it argues that Plaintiff is not appealing from the decision of an “Agency” or “Official” as those terms are defined at 40 M.P.T.L. ch. 1 § 3.

MAPA applies only to “Agencies” as defined in Title 40. See 40 M.P.T.L. ch. 1 § 2. An “Agency” under MAPA is “each commission, committee as defined in Article VI of the Tribal Constitution, or regulatory official of the Mashantucket Pequot Tribal Nation authorized by Tribal Law or such other official as specifically granted authority by Tribal Council Resolution to determine Contested Matters.” 40 M.P.T.L. ch. 1 § 3(b).

*2 Here, the Plaintiff named “Labor Relations” as the Defendant in his Appeal.2 Additionally, he noted in a letter to the Court dated March 30, 2016, that he was submitting a “grievance” to the Court pursuant to Article 19 of the Collective Bargaining Agreement between the Union and the Fire Department. Attached to this letter was communication from the Executive Director of Labor Relations. However, “Labor Relations” is not a commission or committee formed by the Tribal Constitution, nor is it given authority by Tribal Council Resolution to determine contested matters. The Court finds that to the extent that a “Labor Relations” department might exist, it does not fall within the above definition of “Agency” under Chapter 1, Section 3 of MAPA. Because “Labor Relations” is not an “Agency” as defined in MAPA, the Court does not have subject matter jurisdiction over this claim.

The Plaintiff, who is now represented by counsel,3 no longer argues that this Court has jurisdiction under Title 40. Rather, Plaintiff’s counsel stated at oral argument that filing under MAPA was an honest mistake which should not be penalized with dismissal. The Court appreciates and commends Counsel’s candor. This Court has held on prior occasions, however, that equitable considerations cannot prevail where the issue is jurisdictional in nature. See Talyosef v. Mashantucket Pequot Worker’s Compensation Com’n, 6 Mash.Rep. 227, 229 (2015) (“[b]ecause the time limitation is jurisdictional in nature, equitable defenses such as waiver and estoppels [sic] are not available to the plaintiff” (citing Jenkins v. MPGE, 1 Mash.Rep. 9, 15, 1 Mash. 7 (1993)); Gaudet v. MPGE, 4 Mash.Rep. 373, 376 (2006) (“[t]he time period for filing claims for relief is jurisdictional in nature and not subject to waiver for any reason (emphasis in original)” (citing Braffith v. MPGE, 1 Mash.App. 49, 50, 1 MPR 38 (1997)); McKenney v. MPGE, 2 Mash.Rep. 194, 197, 2 Mash. 233 (1997). Stated differently, equitable considerations cannot be used to confer jurisdiction upon this Court where none exists.

For the foregoing reasons the Plaintiff’s suit is dismissed with prejudice.

All Citations
2016 WL 7508161



On April 7, the President of the Union, Andrew Stino, and other firemen, visited the court and informed the Court Clerk that they had been contacted by the Tribe’s Counsel, Attorney Tawnii Cooper–Smith. Attorney Cooper–Smith had informed the firefighters that in her view Title 40 was not the correct way to commence this action. The firemen insisted that they were appealing what they considered to be an abuse of administrative process. They persisted in their belief that an appeal under Title 40 was the correct vehicle for bringing this action.


The Plaintiff was not represented by counsel when this appeal was filed.


The Plaintiff’s counsel filed his appearance at the oral argument on the instant motion.