Gonzalez v. Bureau of Reclamation, 1996 DSD 42

Gonzalez v. Bureau of Reclamation, 1996 DSD 42

MARIO GONZALEZ
Plaintiff,
v.
BUREAU OF RECLAMATION;
Wilbur Between Lodges; Chuck Jacobs; Gerald Clifford; G. Wayne Tapio;
Gerald Big Crow; Duane Brewer; Archie Hopkins; Manuel Fool Head;
David Pourier; Marlin Weston; William Jumping Eagle and Marvin Amiotte,
Defendants.
[1996 DSD 42]

United States District Court
District of South Dakota - Western Division
CIV. 95-5072

MEMORANDUM OPINION
GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Filed Dec 4 , 1996.

RICHARD H. BATTEY, Chief Judge

NATURE AND PROCEDURAL HISTORY

[ś1] This 13-month old case began on October 12, 1995. Plaintiff filed this action against the Bureau of Reclamation (Bureau) alleging Fifth Amendment and Privacy Act violations,^(fn1) and the individually named defendants for Fifth Amendment and civil rights violations.^(fn2) See Docket #1. On October 24, 1995, plaintiff amended his complaint to include a cause of action against the individual defendants pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) civil^(fn3) enforcement provisions. Pub. L. No. 91-452, tit. IX, 84 Stat. 941, (codified as amended 18 USC §§ 1961-1968). The Bureau and the individually named defendants filed separate motions to dismiss, and on March 11, 1996, the Court converted them to motions for summary judgment.^(fn4) On April 29, 1996, plaintiff filed a second amended complaint dismissing the Fifth Amendment claims, as well as the civil rights claims against the individually named defendants. See Docket #67. Thus, plaintiff's second amended complaint charges two causes of action. The first cause of action charges the Bureau with a Privacy Act violation. The second cause of action charges the individually named defendants with civil RICO violations. Defendants have completed their summary judgment submissions. Plaintiff has filed additional cross-motions for summary judgment against said defendants.^(fn5) Oral argument on the motions was held on December 2, 1996, following which the Court announced its oral decision granting summary judgment to all defendants. This memorandum opinion supplements the Court's oral decision.

[ś2] The Court has jurisdiction pursuant to 28 USC § 1331.

FACTS

[ś3] On October 24, 1988, Congress enacted the Mni Wiconi Project Act, Pub. L. No. 100- 516, 102 Stat. 2566, which authorized the Secretary of the Interior (Secretary) to plan, design, and construct and to operate and maintain a municipal, rural, and industrial water system to serve the Oglala Sioux Tribe ("Tribe") on the Pine Ridge Indian Reservation and seven counties in southwestern South Dakota. The Act included the Oglala Sioux Rural Water Supply System (OSRWSS).^(fn6) Section 3 of the Act authorizes the Secretary to enter into agreements with non- federal entities. In 1990 and 1992, the Bureau entered into cooperative agreements with the Oglala Sioux Tribe (Tribe) to prepare a Final Engineering Report and Environmental Assessment for the project.

[ś4] On April 7, 1994, the Secretary, acting through the Bureau, and the Tribe entered into cooperative agreement no. 4-FC-60-04080 for the design and construction of the OSRWSS Mni Wiconi Project in the amount of $82,108,000.^(fn7) See Defendant Bureau's Statement of Material Facts at ś1 [hereinafter "DBSMF"] (citing Document 1, 4-FC-60-04080). The Tribe, acting through the OSRWSS tribal program, conducts activities in accordance with the terms of the agreements. The Bureau provides the funding and technical assistance and oversees the administration of the agreements.

[ś5] Plaintiff entered into two subcontracts with the Tribe. The first agreement, entered into in 1993, was a two-year consulting contract. See Plaintiff's Second Amended Complaint, Exhibit A. The second agreement, a general counsel contract for OSRWSS, was executed on July 13, 1995. See Plaintiff's Second Amended Complaint, Exhibit B. Plaintiff was to receive $125 per hour capped at $75,000 per year, plus expenses of up to $15,000 per year. A provision in the 1995 agreement provided that the agreement could be terminated by either party by giving sixty days' written notice to the other party. Termination for cause was permitted only following a due process hearing. The Bureau approved both agreements as appropriate subgrants for the Tribe to carry out its obligations under the cooperative agreements with the Bureau.

[ś6] In August of 1995, defendant Gerald Clifford was hired as the OSRWSS Director. See Defendant Between Lodges' Statement of Material Facts at ś5 [hereinafter "DBLSMF"]. As the program's new director, defendant Clifford had direct access to the financial records of OSRWSS. Id. at ś6. Clifford obtained and reviewed records kept in the ordinary course of business at the tribal treasurer's office relating to tribal monies being paid to plaintiff pursuant to plaintiff's attorney contract. Id. at ś7. Among the records requested and received from the tribal treasurer's office was a list of payment transactions made to plaintiff for legal services during 1995. Id. at ś8. See Plaintiff's Second Amended Complaint, Exhibit C.^(fn8) The transaction report indicated that payments of $94,126.81 had been made to plaintiff between January 19, 1995, and September 15, 1995.

[ś7] On September 17, 1995, plaintiff submitted a bill to OSRWSS in the amount of $9,903.50 for services performed in a separate lawsuit filed by plaintiff in tribal court against certain tribal officials arising out of their conduct in administering the OSRWSS program.^(fn9) Id. at ś11. See Plaintiff's Second Amended Complaint, Exhibit D. The Tribe's accountant, John Donham, questioned whether the billing was allowable as a program cost based on his understanding that the suit was an internal tribal matter which would not fall within the confines of the agreement with the Bureau. Id. at ś12. See Plaintiff's Second Amended Complaint, Exhibit D.

[ś8] On September 27, 1995, at an open tribal council meeting broadcast over the reservation radio station (KILI), the tribal council discussed payments made to plaintiff. Id. at ś13. See also Plaintiff's Response to Defendant Between Lodges' Statement of Material Facts at ś13 [hereinafter "PRDBLSMF"]. In addition, the subject of plaintiff's current attorney fee billing was raised. Plaintiff had informed defendant Clifford that if he released copies of the document listing his attorney fees to the tribal council, he would sue Clifford. See DBLSMF at ś14. Notwithstanding, copies of the document were distributed to the tribal council members. Plaintiff then offered to resign on the condition that his last billing of $9,903.50 be paid. Id. at ś 15. It may reasonably be concluded plaintiff left the meeting in a "huff." The tribal council decided that rather than accept this conditional offer of resignation, it would exercise its own right to give plaintiff a sixty-day notice of termination as provided in the employment service subcontract. See DBLSMF at śś16, 17. Shortly thereafter, on October 12, 1995, plaintiff filed this lawsuit. Four days later, on October 16, 1995, defendant Clifford informed plaintiff that he would not be assigned any further work under the remaining portion of his attorney contract. He was instructed to turn over all existing work to defendant Amiotte because of the apparent conflict of interest created by this federal lawsuit. Id. at ś23. See also Plaintiff's Second Amended Complaint at ś18.

THE PLEADINGS

[ś9] Count I of plaintiff's second amended complaint alleges that the Bureau, acting through the tribal council, violated the Privacy Act by releasing the billing statements to the public. Id. at ś20 (citing 5 USC 552(g)(1)(C) and (D), and (g)(4)). Count II alleges a civil RICO claim (18 USC §§ 1961-1968) against the individually named defendants. Plaintiff alleges that defendants constitute an "enterprise" engaged in interstate commerce as defined by 18 USC § 1961(4). Id. at ś23. Plaintiff further alleges that the "enterprise" engaged in a "pattern of racketeering activity" as defined by 18 USC § 1961(5), which included the following "racketeering activity" defined at 18 USC § 1961(1): (1) defendants Big Crow and Tapio's alleged participation in a scheme to defraud the United States government of housing rents by false pretenses constituting mail fraud in violation of 18 USC § 1341; and (2) on October 16, 1995, defendants Clifford and Amiotte on their own behalf and on behalf of the other defendants associated with the enterprise directed plaintiff to stop performing further work under his attorney contract with OSRWSS which constitutes witness tampering and retaliation in violation of 18 USC §§ 1512(c) and 1513(b)(1). Id. at ś23(A) and (B). Finally, in attempting to bring all individual defendants under the RICO umbrella, plaintiff alleges that the individually named defendants engaged in a conspiracy in violation of 18 USC § 1962(d). Id. at ś23(C). Plaintiff seeks declaratory and injunctive relief, as well as actual and treble damages.

SUMMARY JUDGMENT STANDARD

[ś10] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 S. Ct. 1348, 1356-57, 89 LEd2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.

[ś11] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 US 242, 106 S. Ct. 2505, 2513, 91 LEd2d 202 (1986). The Supreme Court has instructed that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 US 317, 327, 106 S. Ct. 2548, 2555, 91 LEd2d 265 (1986). The nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts," Matsushita, 106 S. Ct. at 1356, and "[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id.

[ś12] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 US 451, 468, 112 S. Ct. 2072, 2083 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 US at 468 n.14, 112 S. Ct. at 2083 n.14 (quoting Anderson, 477 US at 248, 106 S. Ct. at 2510). To survive summary judgment there must be evidence that "reasonably tends to prove" plaintiff's theory; defendants meet the burden under Fed. R. Civ. P. 56(c) when it is conclusively shown that the facts upon which the nonmoving party relied to support the allegations were not susceptible of the interpretation which was sought to give them; only reasonable inferences can be drawn from the evidence in favor of the nonmoving party; and the Court must consider whether the inference of conspiracy is reasonable. Id. (citations omitted).

[ś13] Finally, should there remain any doubt as to whether the courts continue to harbor any antagonistic feeling toward resolution of summary judgment motions, Chief Judge Arnold in City of Mt. Pleasant, Iowa v. Associated Electric Co-op, Inc., 838 F2d 268 (8th Cir. 1988) laid such thoughts to rest. He stated that, "a trilogy of recent Supreme Court opinions demonstrates that we should be somewhat more hospitable to summary judgment than in the past. The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those cases that really do raise genuine issues of material fact." Id. at 273. The trilogy of Celotex, Anderson, and Matsushita provide the Court with a methodology in analyzing defendants' motions and plaintiff's cross-motions for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson). Under this trilogy, it is incumbent upon the nonmoving party, based upon the showing set forth by the moving party, to establish significant probative evidence to prevent summary judgment. See Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F2d 976, 979 (8th Cir. 1991).

[ś14] Even though Rule 56(b) specifically permits a defendant to "at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof," in most cases federal courts await the development of facts through the discovery process before considering the merits of summary judgment motions. However, the posture of this case is unique in the sense that all the facts necessary for resolution of the issues raised by plaintiff's allegations have been developed and there is no need for further discovery. Plaintiff himself filed a cross motion for summary judgment requesting the decision of the Court without further discovery. This case is over thirteen months old. Further discovery would vexatiously delay the inevitable conclusion that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law.

DISCUSSION

[ś15] A. PRIVACY ACT (5 USC § 552a)

[ś16] Plaintiff alleges that the Bureau, acting through the tribal council, violated the Privacy Act (Act) by releasing to the public the expenditure journal containing information from plaintiff's billing statements. In its motion for summary judgment which incorporates the arguments set forth in its prior motion to dismiss, the Bureau contends that the Act does not apply to the records at issue in this case. In the alternative, if the Act is found to be applicable, the Bureau contends that it has complied with its provisions.

[ś17] The Act provides, in part, that "[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains . . ." except in enumerated circumstances. 5 USC § 552a(b). The Act further provides that "[w]hen an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall, consistent with its authority, cause the requirements of this section to be applied to such system. . . ." Id. at 552a(m)(1). The Act contains the following pertinent definitions:

(a) Definitions. For purposes of this section--

. . .

(2) the term "individual" means a citizen of the United States or an alien lawfully admitted for permanent residence; . . .

(4) the term "record' means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

(5) the term "system of records" means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

Id. §§ 552a(a)(2), (4), and (5). The Act contains an explicit waiver of sovereign immunity when a government agency fails to comply with the Act in such a manner as to adversely affect an individual. Id. § 552a(g)(1)(D).

[ś18] In interpreting the Act, the courts recognize a distinction between individuals acting in a personal capacity and individuals acting in a entrepreneurial capacity. See generally St. Michael's Convalescent v. California, 643 F2d 1369, 1373 (9th Cir. 1981) (holding that corporations or sole proprietorships are not "individuals" and thus lack standing to raise a claim under the Privacy Act); Dresser Indus., Inc. v. United States, 596 F2d 1231, 1237-38 (5th Cir. 1979) (citing USCC.A.N. 6916, 6993 (1974)) (determining that the legislative history of the Privacy Act indicates that in defining "individual," Congress intended to distinguish "between the rights which are given to the citizen as an individual under this Act and the rights of proprietorships, businesses and corporations which are not intended to be covered by this Act."); and Shermco Indus. v. Secretary of US Air Force, 452 FSupp 306, 315 (N.D. Tex. 1978) (concluding that a plaintiff operating a proprietorship or a business did not have standing to request access to records under the Privacy Act when requests were made in plaintiff's entrepreneurial capacity);

[ś19] Plaintiff contends that the facts and circumstances surrounding his relationship with OSRWSS show that he was acting in his individual capacity rather than an entrepreneurial capacity. The Court does not agree. The billing statements disclosed were submitted by plaintiff for services rendered by plaintiff pursuant to his consulting contract as a private attorney representing OSRWSS. Plaintiff maintains a law practice in Black Hawk, South Dakota, and in this business capacity he represents other clients. He is permitted to practice on the reservation for which he pays the Oglala Sioux Tribe a $1,000 per year. See First Amended Complaint at ś17. In his second amended complaint this admission was deleted. Nonetheless, it does not alter the fact that an attorney rendering services is acting in a business rather than personal capacity. Clearly, plaintiff as a practicing attorney was acting in an entrepreneurial or business capacity. He therefore lacks standing to pursue his Privacy Act claim.

[ś20] Moreover, the released information pertained to the distribution of tribal monies paid to the plaintiff pursuant to plaintiff's attorney contract with OSRWSS. The information does not relate to plaintiff's personal matters as distinguished from his business maters. To the contrary, the information released pertained to tribal government's fulfillment of its responsibility to its citizens in the disbursement of tribal monies. See, e.g., Tobey v. N.L.R.B., 807 FSupp 798, 800-01 (D.D.C. 1992); Houston v. US Dep't of Treasury, 494 FSupp 24, 27-29 (D.D.C. 1979). The released information reveals nothing about plaintiff's private affairs so as to trigger the protective provisions of the Act.

[ś21] Furthermore, buttressing the Court's conclusion is the fact that contracts by Indian tribes through the Bureau are often referred to as "638 contracts" signifying their origin from the Indian Self-Determination and Educational Assistance Act of 1975 (Pub. L. No. 93-638, 88 Stat. 2203, (codified as amended 25 USC §§ 450-450n). The 1994 amendment to section 450l concerning payments and federal records of the tribal government provides in relevant part that "the records of the tribal government or tribal organization . . . shall not be considered Federal records for purposes of chapter 5 of Title 5 [which includes the Privacy Act, 5 USC § 552a]." See 25 USC § 450l (Supp. 1996). The release of information of which plaintiff now complains took place in 1995, the year following the 1994 amendment. In addition, 25 C.F.R. ch. 1 (April 1996 ed.) § 271.48(a) provides that "[u]nless otherwise required by law, the Bureau shall not place restrictions on tribal contractors which will limit public access to the tribal contractors' records except when records must remain confidential."

[ś22] Furthermore, when plaintiff filed his claim for attorney fees seeking payment for services rendered, he himself "published" the information, thereby waiving any claim of confidentiality. The claim then became a public record and consistent with the Indian citizens' right to know and their own "self-determination" any claim of privilege evaporated. The intent of Congress in the enactment of the Self-Determination Act was to provide Indian citizens with an effective voice in the planning and implementation of programs for their own benefit, realizing that "Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons." 25 USC § 450.

[ś23] B. CIVIL RICO

[ś24] Civil remedies for a RICO violation are authorized by 18 USC §§ 1964 (a) and (c).^(fn10) RICO's civil liability scheme "confers standing on any individual who has experienced injury to his or her business or property that occurred 'by reason of' a RICO violation." Bowman v. Western Auto Supply Co., 985 F2d 383, 384 (8th Cir.), cert. denied, US , 113 S. Ct. 2459, 124 LEd2d 674 (1993). Plaintiff alleges that defendants are civilly liable by reason of their violations of subsections (a), (c), and (d) of section 1962.

[ś25] A violation of subsection (a) of section 1962 requires proof of the following elements: (1) a person receives income derived directly or indirectly from a pattern of racketeering activity; (2) that person uses or invests, directly or indirectly, any part or proceeds of such income in the acquisition of any interest in, or the establishment or operation of any enterprise; and (3) that enterprise is engaged in or its activities affect interstate or foreign commerce. See 18 USC § 1962(a);^(fn11) United States v. Robertson, 15 F3d 862, 868 (9th Cir. 1994).

[ś26] To establish a civil RICO violation under subsection (c) of section 1962, plaintiff must demonstrate (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity that must include at least two racketeering acts. See 18 USC § 1962(c);^(fn12) Sedima S.P.R.L. v. Imrex Co., 473 US 479, 496, 105 S. Ct. 3275, 3285, 87 LEd2d 346 (1985). Thus, both subsections (a) and (c) require a "pattern of racketeering activity." Subsection (d) provides that it is unlawful for any person to conspire to violate subsections (a), (b), or (c). 18 USC § 1962(d).

[ś27] Defendants initially assert that RICO does not apply to Indians or Indian country. The Court does not agree. RICO is a general federal statute which applies to all persons. It has long been established "that a general statute in terms applying to all persons includes Indians and their property interests." Federal Power Comm'n v. Tuscarora Indian Nation, 362 US 99, 80 S. Ct. 543, 4 LEd2d 584 (1960).

[ś28] Defendants contend that plaintiff's civil RICO claim should be dismissed based on plaintiff's failure to produce sufficient probative evidence on the "pattern of racketeering activity" requirement of subsections (a) and (c).^(fn13) Section 1961(1) defines racketeering activity, in part, as "any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year," or "any act which is indictable under [a variety of] provisions of title 18, United States Code" including section 1512 (relating to tampering with a witness), section 1513 (relating to retaliating against a witness), and section 1341 (mail fraud). See 18 USC § 1961(1). Section 1961(5) defines a "pattern" as requiring at least two acts of racketeering or predicate acts. Id. § 1961(5). A RICO "pattern" has two characteristics, "relatedness" and "continuity." Manion v. Freund, 967 F2d 1183, 1185 (8th Cir. 1992) (citing H.J., Inc. v. Northwestern Bell Telephone Co., 492 US 229, 239, 109 S. Ct. 2893, 2900, 106 LEd2d 195 (1989)). The Eighth Circuit has discussed this concept by stating that,

Predicate acts are "related" if they "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." Continuity requires proof of "related predicates extending over a substantial period of time" or "involving a specific threat of repetition extending indefinitely into the future."

Manion, 967 F2d at 1185-86 (internal citations omitted).

[ś29] Plaintiff alleges two predicate acts in support of his "pattern of racketeering activity" theory. First, plaintiff alleges that defendants Big Crow and Tapio participated in a scheme to defraud the United States government of housing rents by false pretenses. See Plaintiff's Second Amended Complaint at ś23(A). Second, that on October 16, 1995, defendants Clifford and Amiotte on their own behalf and on behalf of the other defendants associated with the enterprise directed plaintiff to stop performing further work under his attorney contract with OSRWSS which constitutes witness tampering and retaliation in violation of 18 USC §§ 1512(c) and 1513(b)(1). Id. at ś23(B) (citing 18 USC § 1962(a) and (c)).

[ś30] a. First Alleged Predicate Act

[ś31] Plaintiff's second amended complaint alleges that defendants "knowingly and intentionally devised a scheme and artifice to defraud the United States Government of housing rents by false pretenses . . . and for the purpose of executing such scheme and artifice have authorized and used the United States Postal Service on more than two separate and distinct occasions . . . in violation of 18 USC 1961(1)(B), 18 USC 1962 (a) and (c), and 18 USC 1341." See Plaintiff's Second Amended Complaint at ś23(A). Indeed, mail fraud is one of the defined predicate offenses itemized in 18 USC § 1961(1)(B). Plaintiff alleges a conspiracy to commit mail fraud by tying the mail fraud enumerated in section 1961(1)(B) to the allegation of a violation of section 1962(d).^(fn14)

[ś32] Plaintiff has failed to combat defendants' showing that plaintiff has not suffered sufficient injury to his business or property "by reason" of the conduct pertaining to the alleged mail fraud to confer standing for plaintiff to allege a substantive RICO violation under sections 1962(a) and (c). See Bowman, 985 F2d at 384. In the context of causation, there simply is not a sufficient connection or directness of the relationship between "'the injury asserted and the injurious conduct alleged.'" Id. at 387 (quoting Holmes v. Securities Investor Protection Corp., 503 US 258, 268, 112 S. Ct. 1311, 1318, 117 LEd2d 532 (1992)).^(fn15) Therefore, plaintiff lacks standing to assert a claim of fraud pertaining to housing rents, and said allegation does not constitute a predicate act for purposes of this suit.

[ś33] b. Second Alleged Predicate Act

[ś34] The only remaining claim of a predicate act concerns the allegation that the enterprise directed plaintiff to discontinue performing any further work under his attorney contract because plaintiff filed the above-captioned case against defendants in violation of 18 USC §§ 1512(c) or 1513(b)(1). Because section 1961(5) defines a "pattern" as requiring at least two predicate acts, plaintiff has failed to state a substantive RICO claim under either subsection (a) or (c) of section 1962. Even so, the facts and circumstances of this case indicate that plaintiff's second alleged predicate act lacks merit. Plaintiff is essentially arguing that the discontinuation of the attorney/client relationship prior to the end of the sixty-day termination period as provided in plaintiff's attorney contract with OSRWSS^(fn16) qualifies as witness tampering or retaliation against a witness. It is undisputed that on October 16, 1995, with forty-one days remaining on the sixty-day termination period, defendant Clifford informed plaintiff that he would not be assigned any further work under the remaining portion of his attorney contract and to forward all existing work to defendant Amiotte. However, the filing of this lawsuit created an inherently obvious conflict of interest for plaintiff. The law simply does not require an individual or an entity being sued by their attorney to retain that same attorney's services for other legal matters. In addition, plaintiff has failed to produce sufficient probative evidence that any of the individually named defendants ever hindered, delayed, prevented, or dissuaded plaintiff from attending or testifying in any official proceeding, including the above-entitled matter as to violate 18 USC § 1512(c). Moreover, the record indicates that plaintiff has never appeared as witness in this case. Nor is there any evidence that any defendant knowingly engaged in any conduct causing bodily injury to plaintiff or damages to plaintiff's tangible property, with the intent to retaliate against plaintiff for the attendance as a witness or party at an official proceeding including the above-entitled matter as to violate 18 USC § 1513(b)(1).

[ś35] Thus, the facts and circumstances surrounding the discontinuation of the attorney/client relationship prior to the end of the sixty-day termination period clearly do not constitute a predicate act necessary for a substantive RICO violation under section 1962(a) or (c). Whether plaintiff has a cause of action in tribal court for wrongful discharge would be a matter for the tribal court's resolution and does not concern this Court in this case. Accordingly, plaintiff has failed to produce sufficient probative evidence to support his pattern of racketeering activity allegation to support the underlying RICO violation based on subsections (a) and (c) of section 1962..

[ś36] Finally, under the law of the Eighth Circuit Court of Appeals an actionable claim under section 1962(d) also requires a plaintiff's injury to stem from predicate acts within the purview of section 1961(1). Bowman, 985 F2d at 388 (holding "that standing to bring a civil suit pursuant to 18 USC § 1964(c) and based on an underlying conspiracy violation of 18 USC § 1962(d) is limited to those individuals who have been harmed by a § 1961(1) RICO predicate act committed in furtherance of a conspiracy to violate RICO."). Thus, plaintiff's conspiracy claim under section 1962(d) must also be dismissed.

CONCLUSION

[ś37] After reviewing the arguments presented by all parties and after reviewing the facts and inferences that may be derived therefrom in a light most favorable to the nonmoving parties, this Court finds that no genuine issues of material fact exist and defendant Bureau and the individually named defendants are entitled to judgment as a matter of law. Accordingly, judgment shall be issued forthwith.

Footnotes

1. See 5 USC 552a et seq. (5 USC § 552a is a 1974 amendment to the Administrative Procedure Act and is commonly referred to as the Privacy Act).

2. See 42 USC §§ 1981, 1982, and 1985.

3. The use of the term "racketeer" carries ominous and somewhat misunderstood implications of criminal law violation. This is not a criminal case, thus, the use of the words "civil RICO."

4. Both the Bureau and the individually named defendants originally filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b). On March 11, 1996, this Court issued an order providing appropriate notice that it would be converting the Rule 12(b) motions to motions for summary judgment under Fed. R. Civ. P. 56. See generally Kaestal v. Lockhart, 746 F2d 1323 (8th Cir. 1984); Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 LEd2d 338 (1989); Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.").

5. The gravamen of plaintiff's cross-motions for summary judgment is that both the Bureau and the individually named defendants failed to properly file answers to plaintiff's second amended complaint. Plaintiff has misconstrued the requirements of the Federal Rules of Civil Procedure.

A. BUREAU

The Bureau was properly served with a copy of plaintiff's first amended complaint on November 6, 1995. See Docket #4. Pursuant to Fed. R. Civ. P. 12(a)(3), the Bureau had 60 days to provide its responsive pleading. On January 2, 1996, the Bureau elected to file a Rule 12(b) motion preserving its defenses of lack of jurisdiction and failure to state a claim upon which relief can be granted. Thus, pursuant to Rule 12(b), the Bureau was not required to assert said defenses in a separate answer. Indeed, Rule 12(b) specifically provides that said motion "shall be made before pleading if a further pleading is permitted." As previously set forth, the Court then issued its order treating the Rule 12(b) motion as one for summary judgment under Rule 56. Therefore, the initial Rule 12(b) motion, which was treated as a motion for summary judgment, constitutes a sufficient responsive pleading preserving the defenses at issue. The Court does express a concern that the Bureau did neglect to file an answer within twenty days of the March 11, 1996 order which required an answer. However, plaintiff has failed to show any resulting prejudice from said inadvertence, and it has been clear from the onset of this case that the Bureau denies all allegations contained in plaintiff's pleadings. Because "[a]ll pleadings shall be so construed as to do substantial justice" the Court will not accept plaintiff's invitation to construe the failure to file a separate answer as an admission of all material facts contained in plaintiff's pleadings. See Fed. R. Civ. P. 8(f).

B. INDIVIDUALLY NAMED DEFENDANTS

On November 22, 1995, the individually named defendants filed a motion to dismiss and answer to plaintiff's first amended complaint. See Docket #5. On November 24, 1995, said defendants filed their amended motion to dismiss and answer. See Docket #6. The amended answer contained a general denial, specific denials, and some admissions. Because the original motion to dismiss was not accompanied with a supporting brief as required by D.S.D. LR 7.2, defendants were ordered to resubmit their motion. See Docket #10. On December 15, 1995, defendants filed their Rule 12(b) motion to dismiss accompanied with supporting memoranda. See Docket #24. As was the case with the Bureau's motion to dismiss, the Court then issued its order treating the individually named defendants' Rule 12(b) motion as one for summary judgment under Rule 56. Therefore, the initial Rule 12(b) motion, which was treated as a motion for summary judgment, constitutes a sufficient responsive pleading preserving the defenses at issue. Moreover, unlike the Court's order converting the Bureau's motion, the order converting the individual defendants' motion did not require said defendants to file an answer.

On April 29, 1996, plaintiff filed his second amended complaint. See Docket #67. The second amended complaint abandoned the Fifth Amendment and civil rights claims against the individual defendants, leaving only the RICO allegations. Because the initial Rule 12(b) motion which was treated as a motion for summary judgment constitutes a sufficient responsive pleading preserving the defenses at issue and defendants have provided an additional answer addressing the RICO claims, the Court will not accept plaintiff's invitation to construe the failure to file a separate answer to the second amended complaint as an admission of all material facts contained in plaintiff's pleadings. See Fed. R. Civ. P. 8(f). In addition, plaintiff has failed to show any resulting prejudice from any failure to file a separate answer to the second amended complaint, and it is clear from the numerous filings in this case that the individually named defendants deny the RICO allegations.

6. The Act was amended in 1994, Pub. L. No. 103-434, to also include the Rosebud and Lower Brule Sioux Tribes and to further expand the service areas.

7. The authority to enter into cooperative agreement no. 4-FC-60-04080, is explicitly set forth in the agreement as follows:

This Indian Self-Determination cooperative agreement is pursuant to the Act of Congress of October 24, 1988, Public Law 100-516 (102 Stat. 2566) and the Indian Self-Determination and Education Act [(ISDEAA). See Pub. L. 93-638, as amended in 1988 by Pub. L. 100-472 (codified as amended 25 USC § 450 et. seq.)], between the Bureau of Reclamation and the Oglala Sioux Tribe, a non- Federal entity and Indian Tribe organized pursuant to the Indian Reorganization Act, 25 USC 461. Pursuant to section 105(a) of Public Law 100-472, the Office of Federal Procurement Policy Act (88 Stat. 796); 41 USC 401 et seq., and the Federal Acquisition Regulations promulgated thereunder do apply to this contract because the work does involve construction.

See DBSMF, Document 1, 4-FC-60-04080, at 1.

8. Attached to plaintiff's complaint are several exhibits. Two of these exhibits, Exhibits C and D, are documents which were allegedly retrieved from the "system of records." Exhibit C appears to be an expenditure journal for OSRWSS containing an account code for administration of the project. Exhibit D also contains documents pertaining to OSRWSS describing billing services rendered for the project. The Bureau asserts that these tribal records maintained for the Bureau are contract administration records which are not retrieved by an individual's name or identifying particular assigned to the individual as is required by 5 USC § 552a(a)(5). However, the Court need not address the retrieval issue based on the Court's finding that plaintiff lacks standing under the Privacy Act because he was acting in his entrepreneurial rather than personal capacity.

9. It wouldn't take a rocket scientist to conclude that the tribal officials were miffed at being sued by plaintiff at the same time he had a consulting contract on the Mni Wiconi Project.

10. Pursuant to 18 USC § 1964(c), "Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee."

11. 18 USC § 1962(a) makes it "unlawful for any person who has received any income derived . . . from a pattern of racketeering activity . . . to use or invest . . . such income . . . in acquisition of . . . any enterprise which is engaged in . . . interstate . . . commerce."

12. 18 USC § 1962(c) makes it "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity. . . ."

13. During oral argument at the December 2, 1996, hearing the Court expressed doubt concerning the existence of an "enterprise" as defined by 18 USC § 1961(4). However, because the "pattern of racketeering activity" issue is dispositive of plaintiff's RICO claim, the Court need not further address the inadequacies inherently present in plaintiff's "enterprise" theory.

14. See 18 USC § 1962(d) (it is unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c)).

15. The Holmes court set forth the following three reasons for including a directness element: (1) the less direct the relationship, the more difficult it is to determine how much of the damage is due to the alleged RICO conduct and how much to extraneous conduct; (2) courts may have significant difficulty apportioning damages among plaintiffs who are removed, in varying degrees, from the alleged injurious conduct; and (3) the more directly an individual is injured, the more likely that individual will take on the role of private attorney general, and thus help uphold the law. Holmes, 503 US at 269-70, 112 S. Ct. at 1318.

16. A provision in the 1995 agreement provided that the agreement could be terminated by either party by giving sixty days written notice to the other party. Termination for cause was permitted only upon a due process hearing before the office of the Secretary of the Interior.