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Tribe v. Hunnik

United States District Court, D. South Dakota, Western Division

February 19, 2016

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI, in their official capacities, Defendants.

ORDER

JEFFREY L. VIKEN CHIEF JUDGE

INTRODUCTION

On March 30, 2015, the court entered an order granting partial summary judgment to plaintiffs. (Docket 150). Defendants filed motions for reconsideration of the order granting partial summary judgment. (Dockets 167, 169 & 170). For the reasons stated below, the Van Hunnik and Valenti defendants’ motion (Docket 167) is granted in part and denied in part. Motions for reconsideration by Judge Davis and States Attorney Vargo (Dockets 169 & 170) are denied.

DISCUSSION

Defendants Luann Van Hunnick and Lynne A. Valenti (the “DSS Defendants”) filed a motion for reconsideration pursuant to Fed. R. Civ. P.59(a)(2)[1] or, in the alternative, Fed.R.Civ.P. 60. (Docket 167 at pp. 1-2). Defendant States Attorney Vargo’s motion for reconsideration is filed pursuant to Rule 59(e) and Rule 60(b)(2). (Docket 169). Defendant Judge Davis’ motion for reconsideration is filed pursuant to Rule 59(a)(2)[2] and Rule 60. (Docket 170).

Federal Rule of Civil Procedure 59(a)(2) provides that “[a]fter a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.” Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Rule 60 provides in material part:

The court may correct a . . . mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. . . . On motion . . . the court may relieve a party . . . from a final judgment, order or other proceeding for the following reasons: . . . any other reason that justifies relief.

Fed. R. Civ. P. 60(a) and (b)(6).

“Rule 59(e) motions are motions to alter or amend a judgment, not any nonfinal order.” Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999) (internal quotation marks omitted). Because the order of March 30, 2015, is not the product of a nonjury trial and is not an “order from which an appeal lies” under Rule 54(a), Rule 59(a)(2) is not an appropriate mechanism for the parties to seek modification of the court’s order. “By its terms, only Rule 60(b) encompasses a motion filed in response to an order.” Broadway, 193 F.3d at 989. “[M]otion[s] for reconsideration should be construed as . . . Rule 60(b) motion[s].” Id.

“Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988). “[A] motion for reconsideration [should not] serve as the occasion to tender new legal theories for the first time.” Id. Defendants’ motions do not seek to present any new evidence. While Judge Davis and States Attorney Vargo make no mention of new evidence, the DSS Defendants say “[n]o newly discovered evidence was present in the motion to reconsider.” (Docket 198 at p. 2). Because of the commonality of the defendants’ motions, the court will address the motions in a fashion most useful for analysis. All references will be to the March 30, 2015, partial summary judgment order (Docket 150) unless otherwise indicated.

A. CHALLENGES TO UNDISPUTED MATERIAL FACTS

The DSS Defendants submit the March 30, 2015, order contains a number of erroneous findings of material facts. (Docket 168 at pp. 4 & 7). Judge Davis claims the court made a factual error in finding that “no testimony is permitted at the 48-hour hearings.” (Docket 172 at p. 12). States Attorney Vargo does not challenge the court’s statement of undisputed material facts. (Docket 169). The defendants’ factual challenges are separately addressed.

1. CHILD PROTECTION SERVICES (“CPS”) EMPLOYEES DO NOT PREPARE A PETITION FOR TEMPORARY CUSTODY

In the introduction section of the order, the court stated “CPS employees under policy guidance from and the supervision of Ms. Valenti and Ms. Van Hunnik prepare a petition for temporary custody and sign an Indian Child Welfare Act[3] affidavit alleging an Indian child is at risk of serious injury if the child remains in the parents’ home.” (Docket 150 at p. 3). In the statement of undisputed material facts section of the order, the court found that “[i]n state court cases involving Ms. Pappen and Ms. Young, CPS employees under [Ms. Valenti’s and Ms. Van Hunnick’s] supervision prepared petitions for temporary custody and signed ICWA affidavits alleging the children of these Indian parents were at risk of serious injury if the children remained at home.” Id. at p. 11 (record reference and footnote omitted).

The DSS Defendants object to both of these statements. (Docket 168 at p. 4). The DSS Defendants assert “CPS employees do not prepare the petitions for temporary custody. The State’s Attorney’s office prepares a Petition for Temporary Custody and temporary custody paperwork.” Id. (record references omitted).

Plaintiffs’ complaint alleged that in the individual plaintiffs’ state court “cases, DSS employees under the supervision of [the DSS Defendants] prepared a petition and signed an ICWA affidavit alleging that the children of these parents were at risk of serious injury if they remained in their homes.” (Docket 1 ¶ 51). The DSS Defendants’ answer stated “Petitions for Temporary Custody in each case was [sic] prepared by a Pennington County Deputy States Attorney. An ICWA Affidavit for each Plaintiff was executed by a DSS employee and such Affidavit sets forth many things, including but not limited to, why returning a child to a particular parent would result in serious emotional and physical damage.” (Docket 81 ¶ 16). States Attorney Vargo’s answer “admits that in [the individual plaintiffs’] cases, DSS employees under the supervision of [DSS Defendants] signed an ICWA Affidavit alleging that the children of these parents were at risk of serious injury if they remained in their homes.” (Docket 76 ¶ 12).

As part of the summary judgment submission, the DSS Defendants stated an “Affidavit of the Department and the ICWA Affidavit is prepared by a CPS Family Services Specialist.” (Docket 132-1 ¶ 71). They also stated “[t]he State’s Attorney’s office prepares a Petition for Temporary Custody . . . . In most circumstances, CPS does not receive a copy of the Petition for Temporary Custody at the time of the 48 Hour hearing, but receives a copy of the applicable CPS file in the mail at the Rapid City office.” Id. ¶¶ 79 & 80. A Deputy States Attorney on States Attorney Vargo’s staff testified her “office prepares the temporary custody paperwork” and “DSS will provide me with the ICWA Affidavits and a DSS Affidavit.” (Docket 132-26 ¶¶ 32 & 36).

In response to plaintiffs’ statement of undisputed material fact, the defendants’ jointly responded that the Petition for Temporary Custody was “prepared by the State’s Attorney’s Office. DSS does not have a policy for distribution of a State’s Attorney prepared document.” (Docket 131 ¶ 8, response).

The court finds its original description of material facts in the March 30, 2015, order contained minor misstatements on these points. The DSS Defendants’ motion for reconsideration on this ground is granted.

The court amends page three of the introduction section of the order to read as follows:

CPS employees under policy guidance from and under the supervision of Ms. Valenti and Ms. Van Hunnik sign an Indian Child Welfare Act affidavit alleging an Indian child is at risk of serious ...

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