the Chippewa Cree Tribe of the Rocky Boy ’s Reservation, Montana v. U.s. Department of the Interior

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE C HIPPEWA C REE TRIBE OF THE
R OCKY BOY ’S R ESERVATION,
M ONTANA ,
Petitioner,
v.
U.S. DEPARTMENT OF THE INTERIOR ;
R YAN K. ZINKE, in his official
capacity as Secretary of the Interior;
KEN S T. M ARKS ,
Respondents.
No. 15-71772
OPINION
On Petition for Review of an Order of the
Department of the Interior
Argued and Submitted March 12, 2018
San Francisco, California
Filed August 21, 2018
Before: Paul J. Watford and Michelle T. Friedland, Circuit
Judges, and Gary Feinerman,* District Judge.
Opinion by Judge Friedland
* The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.

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2 C HIPPEWA C REE TRIBE V. USDOI
SUMMARY**
Tribal Issues / Whistleblower
The panel denied a petition for review by the Chippewa
Cree Tribe challenging a decision of the U.S. Department of
the Interior that ordered the Tribe to provide relief to Ken St.
Marks, who was removed from the Tribe’s governing body
– the Business Committee – in retaliation for his
whistleblowing.
St. Marks informed the Department of the Interior that
members of the Business Committee were misusing federal
stimulus funds awarded to the Tribe by the Department
pursuant to the American Recovery and Reinvestment Act.
The Act contains robust whistleblower protections.
The panel rejected the Tribe’s challenges to the
Department of Interior’s decision. First, the panel held that
St. Marks was an “employee” and eligible for whistleblower
protection under the Act because he provided services on
behalf of his employer, the Tribe. Second, the panel held
that the Department’s order did not infringe on the Tribe’s
sovereignty and powers of self-governance, and moreover,
the Tribe voluntarily agreed to federal oversight when it
accepted the stimulus funds. Third, the panel held that the
Tribe did not have a due process right to a hearing with
cross-examination before the Department reached its
conclusion where the Tribe consented to the procedures
outlined in the Act, which do not include a hearing. The
panel noted that the Department did commit a procedural
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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C HIPPEWA C REE TRIBE V. USDOI 3
error where the Tribe did not have access to the Inspector
General’s report until the Department issued its preliminary
decision, but this was harmless error. Finally, the panel held
that the Department did not err in finding that the removal of
St. Marks was retaliatory.
The panel held that the Tribe could not raise for the first
time on appeal its argument that the Department incorrectly
calculated St. Marks’s monetary award.
The panel addressed St. Marks’s petition for review in a
concurrently filed memorandum disposition.
COUNSEL
Richard J. Zack (argued) and Jay A. Dubow, Pepper
Hamilton LLP, Philadelphia, Pennsylvania, for Petitioner
The Chippewa Cree Tribe.
Jaynie Lilley (argued) and Marleigh D. Dover, Appellate
Staff; Chad M. Readler, Acting Assistant Attorney General;
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondents U.S. Department of
Interior and Ryan Zinke.
Jeffrey S. Rasmussen (argued), Fredericks Peebles &
Morgan LLP, Louisville, Colorado, for Respondent Ken St.
Marks.

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4 C HIPPEWA C REE TRIBE V. USDOI
OPINION
FRIEDLAND, Circuit Judge:
Ken St. Marks, a member of the Chippewa Cree Tribe
(“Tribe”), informed the Department of the Interior
(“Department”) that he believed members of the Tribe’s
governing body, known as the Business Committee
(“Committee”), were misusing federal stimulus funds.
Members of the Tribe subsequently elected St. Marks
Chairman of the Committee, a position he held for five
months before being removed by the other members of the
Committee. St. Marks alleged that the Committee took this
action in retaliation for his whistleblowing. After an
investigation, the Department agreed and ordered the Tribe
to provide relief, including back pay, to St. Marks. The
Tribe now petitions for review, raising procedural and
substantive challenges to the Department’s decision. We
deny the petition.1
I.
The stimulus funds at issue here were awarded to the
Tribe by the Department pursuant to the American Recovery
and Reinvestment Act (“ARRA” or “the Act”). Congress
passed ARRA to mitigate the impact of the 2008 recession,
in part by rapidly funding a variety of state, local, and tribal
projects. See Pub. L. No. 111-5, § 3, 123 Stat. 115, 115–16
(2009). To safeguard these funds, Congress enacted robust
whistleblower protections for employees of any non-federal
entity receiving funds under the Act. ARRA § 1553(a),
1 St. Marks also petitioned for review of the Department’s order. We
address his petition in a concurrently filed memorandum disposition.

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C HIPPEWA C REE TRIBE V. USDOI 5
123 Stat. at 297–302.2 As relevant here, the Act provides
that an employer may not discharge an employee in
retaliation for the disclosure of “information that the
employee reasonably believes is evidence of” the “gross
mismanagement of an agency contract or grant relating to
covered funds.” § 1553(a)(1), 123 Stat. at 297.
When an employee files a whistleblower complaint, the
office of the inspector general (“IG”) for the agency
awarding the funds has 180 days to investigate the complaint
and submit a report of its findings “to the person, the
person’s employer, [and] the head of the appropriate
agency.” § 1553(b)(1)–(2), 123 Stat. at 297–98. After the
agency receives the IG’s report, it must determine whether
the complainant has been the victim of a reprisal prohibited
by ARRA’s whistleblower protections. § 1553(c)(2),
123 Stat. at 300. If the employee establishes that his or her
disclosure “was a contributing factor in the reprisal,”
§ 1553(c)(1)(A)(i), 123 Stat. at 299, the burden then shifts to
the employer to show by “clear and convincing evidence”
that it would have removed the employee “in the absence of
the disclosure,” § 1553(c)(1)(B), 123 Stat. at 299. If the
agency concludes that a prohibited reprisal has occurred, it
may order various forms of relief, including compensatory
damages and reinstatement. § 1553(c)(2), 123 Stat. at 300.
II.
In 2009 and 2010, the Tribe received over $27 million in
stimulus funds to complete construction of a water pipeline
on its reservation. The Tribe had previously entered into
funding agreements with the Department that authorized the
2 Statutory references are to the American Recovery and
Reinvestment Act unless otherwise indicated.

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6 C HIPPEWA C REE TRIBE V. USDOI
Tribe to administer the federal funds it received in those
years. See 25 U.S.C. § 5363. As a condition of receiving
the water pipeline funding, the Tribe executed two
modifications to those preexisting agreements. The
modified agreements required the Tribe to comply with the
Act’s whistleblower protections, and specifically provided
that those protections would be “enforceable pursuant to
processes set up by ARRA.”
Ken St. Marks owns a construction company that was
involved in building the pipeline paid for by the stimulus
funds. In August 2012, St. Marks reported to the
Department that he believed members of the Tribe, including
individuals on the Tribe’s governing Committee, were
misusing ARRA funds. Three months later, members of the
Tribe elected St. Marks to serve as Chairman of the
Committee.3
St. Marks contends that he informed members of the
Tribe of the alleged fraud in an open letter on March 5, 2013,
but the Committee disputes that the letter was ever sent.
Later that same week, St. Marks filed a whistleblower
complaint with the Department, alleging that he had “been
threatened and retaliated against,” and that there was a
petition circulating to remove him as Chairman. The
Committee subsequently removed St. Marks from his
position on March 25, 2013, for “neglect of duty and gross
misconduct.”
3 The Committee consists of eight general members and a Chairman,
all of whom are elected by members of the Tribe. Any member of the
Committee, including the Chairman, can be removed by a vote of a
majority of the other members of the Committee.

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C HIPPEWA C REE TRIBE V. USDOI 7
The IG began investigating St. Marks’s whistleblower
complaint that spring. After interviewing employees of the
Tribe and other witnesses, the IG submitted its report to the
Department about a year later. The report discussed the
factual background of the investigation, but it offered no
conclusion as to whether St. Marks was the victim of a
prohibited reprisal. The IG did not provide the Tribe with a
copy of its report.
The Department reviewed the IG’s report and issued its
own preliminary order, concluding that the Tribe had
engaged in a prohibited reprisal when the Committee
removed St. Marks from office.4 At this point, the Tribe had
its first opportunity to view the IG’s report, which was
attached to the Department’s order. The Department then
gave both parties an opportunity to submit additional
documentation, and specifically instructed St. Marks to
detail the relief he sought under the Act.
In response, the Tribe filed a series of exhibits to attempt
to rebut the Department’s conclusion and demonstrate that
the Committee had properly removed St. Marks from office
for fraud and misconduct. St. Marks submitted a request for
monetary relief and reinstatement with supporting
documentation. He also asked that various restrictions be
placed on the Committee’s actions.
After analyzing the available evidence—including the
Tribe’s newly submitted exhibits—the Department issued a
final order confirming its earlier decision that the Tribe had
engaged in a prohibited reprisal. The Department awarded
4 Although the Inspector General’s Office is within the Department
of the Interior, we use “Department” to refer to the part of the agency
responsible for issuing an order under § 1553(c)(2), 123 Stat. at 300.

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St. Marks approximately $650,000, including back pay,
front pay, travel costs, and legal fees, and it ordered the Tribe
“to stop any and all reprisals against St. Marks arising out
of” his whistleblower activities. St. Marks had also
requested compensatory damages arising from lost business
opportunities, including his inability to secure a loan to
purchase a nearby hotel, but the Department concluded that
those losses were speculative and not clearly connected to
the reprisal. The Department further declined to award
attorney’s fees arising from St. Marks’s other disputes with
the Tribe, including two lawsuits the Tribe had filed against
St. Marks in tribal court. And, recognizing that reinstating
St. Marks would necessarily implicate issues of “tribal
sovereignty and self-determination,” the Department did not
require the Tribe to restore St. Marks to his position as
Chairman.
The Tribe now petitions for review of the Department’s
order.
III.
The Tribe raises five challenges in its petition for review:
(1) St. Marks is ineligible for whistleblower protection
because he is not an employee of the Tribe; (2) the
Department violated the Tribe’s sovereignty; (3) the
Department violated the Tribe’s procedural due process
rights; (4) the Department misconstrued the facts in
concluding that a prohibited reprisal occurred; and (5) even
assuming that a prohibited reprisal occurred, the Department
incorrectly calculated the monetary relief due to St. Marks.
We address each in turn.

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C HIPPEWA C REE TRIBE V. USDOI 9
A.
We first consider the Tribe’s argument that St. Marks
was not an “employee” and thus is ineligible for
whistleblower protection under the Act. To qualify as an
“employee,” ARRA requires only that “an individual
perform[] services on behalf of an employer.”
§ 1553(g)(3)(A), 123 Stat. at 301. As the parties do not
dispute that the Tribe is an employer under the Act, the
question here is whether St. Marks performed services on
behalf of the Tribe.
He undoubtedly did. Among other duties, the Tribe’s
constitution requires the Committee to “negotiate with the
Federal, State and local governments on behalf of the tribe,”
“manage all economic affairs and enterprises of the tribe,”
and “approve or veto any sale, disposition, lease or
encumbrance of tribal lands.” As Chairman of the
Committee, St. Marks was responsible for these tasks, as
well as “presid[ing] over all meetings of the committee,”
“perform[ing] all duties of a Chairman,” and “exercis[ing]
any authority delegated to him by the committee.” He was
also paid a salary by the Tribe for serving as Chairman. No
more is required to hold that St. Marks was an employee
within the meaning of ARRA. See BedRoc Ltd., LLC v.
United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry
begins with the statutory text, and ends there as well if the
text is unambiguous.”).
This case is unlike those in which courts are “asked to
construe the meaning of ‘employee’ where the statute
containing the term does not helpfully define it.” Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444
(2003) (quoting Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 322 (1992)). The Americans with Disabilities
Act, for example, states only that an employee is an

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10 C HIPPEWA C REE TRIBE V. USDOI
“individual employed by an employer.” Id. (quoting
42 U.S.C. § 12111(4)). ERISA does the same. See Darden,
503 U.S. at 323 (quoting 29 U.S.C. § 1002(6)). In the face
of those “circular” descriptions, the Supreme Court has
turned to the common-law definition of an employee to
determine the statutes’ coverage. Id. ARRA, in contrast,
defines the term “employee” without reference to the verb
“employed.” See § 1553(g)(3)(A), 123 Stat. at 301. As a
result, we can apply the statutory definition without resorting
to the common law for guidance.
The Tribe argues that St. Marks cannot be considered an
employee because he was elected. But the Supreme Court
has held that “[t]he mere fact that a person has a particular
title—such as partner, director, or vice president—should
not necessarily be used to determine whether he or she is an
employee.” Clackamas, 538 U.S. at 450; cf. Goldberg v.
Whitaker House Coop., Inc., 366 U.S. 28, 32 (1961) (“There
is nothing inherently inconsistent between the coexistence of
a proprietary and an employment relationship.”). And, in
other statutes, Congress has expressly excluded elected
officials from employee protections. See, e.g., Age
Discrimination in Employment Act, 29 U.S.C. § 630(f)
(“[T]he term ‘employee’ shall not include any person elected
to public office in any State or political subdivision of any
State by the qualified voters thereof.”); Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e(f) (same); Fair Labor
Standards Act, 29 U.S.C. § 203(e)(2)(C)(ii)(I) (excluding
from the definition of “employee” any individual who “holds
a public elective office of [a] State, public subdivision, or
agency”). Were it obvious that elected officials could never
qualify as employees, as the Tribe argues, then Congress
would not have needed to specify in those statutes that
elected officials were excluded. And the fact that Congress
did not exclude elected officials from ARRA even though it

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C HIPPEWA C REE TRIBE V. USDOI 11
did so in other statutes suggests that Congress intended to
include them within ARRA’s whistleblower protections.
See Meghrig v. KFC W., Inc., 516 U.S. 479, 484–85 (1996)
(comparing two different statutes to conclude that the
language in one did not encompass a particular remedy
because the inclusion of that remedy in the other
demonstrated that Congress “knew how to provide” such a
remedy when it so desired).
Congress’s choice in this regard makes perfect sense.
ARRA rapidly distributed billions of dollars in stimulus
funding to tribes, states, and local governments—most of
which have elected officials. To safeguard those funds,
Congress implemented “a historic level of transparency,
oversight and accountability,” including protections for
“[f]ederal and state whistleblowers who report fraud and
abuse.” H.R. Rep. No. 111-4, at 2–3 (2009). It would have
substantially weakened those safeguards if Congress had
excepted from protection all elected officials, particularly
because those officials will often be in a good position to
identify and report fraud.
B.
The Tribe next urges that the Department’s order
infringes its sovereignty and powers of self-governance, and
that Congress did not intend such an outcome when it passed
the Act. We disagree. The Act makes clear that it applies to
tribes. See § 1610(b), 123 Stat. at 304–05 (requiring that an
agreement distributing stimulus funds to a tribe for a project
conducted under any of several tribal statutes “incorporate
provisions to ensure that the agreement conforms with the
provisions of this Act regarding . . . transparency, oversight,
reporting, and accountability”). And when “Congress
clearly indicates that Indian tribes are subject to a given law,
no tribal sovereignty exists to bar the reach or enforcement

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of that law.” Blue Legs v. U.S. Bureau of Indian Affairs,
867 F.2d 1094, 1096 (8th Cir. 1989). This doctrine applies
even where federal law infringes a tribe’s self-governance.
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)
(“Congress has plenary authority to limit, modify or
eliminate the powers of local self-government which the
tribes otherwise possess.”).
But even were we hesitant to conclude that a unilateral
Congressional enactment authorized the agency to wade into
issues implicating tribal governance, the Tribe voluntarily
agreed to federal oversight when it accepted the stimulus
funds. Put another way, as much as tribal sovereignty “rests
in the hands of Congress,” Michigan v. Bay Mills Indian
Cmty., 134 S. Ct. 2024, 2037 (2014), it also rests in the hands
of the Tribe. And when the Tribe accepted $27 million in
ARRA funds from the federal government, it agreed to
certain procedures for safeguarding the use of those funds.
The Department’s subsequent resort to those procedures did
not violate the Tribe’s sovereignty. Cf. Madison v. Virginia,
474 F.3d 118, 128 (4th Cir. 2006) (“[O]ne attribute of State
sovereignty is the ability to waive it in pursuit of other
objectives, in this case pursuit of federal funding.”).5
Reversing the Department’s order on tribal sovereignty
grounds otherwise would allow the Tribe to reap the benefits
of the stimulus funds while using its sovereign status to shirk
the Act’s requirements.
5 Because the Department only awarded monetary relief, the remedy
imposed does not burden the Tribe’s sovereignty any more than a remedy
meant to compensate a more typical tribal employee for a grievance
against the Tribe. This case does not require us to consider whether it
would have violated the Tribe’s sovereignty if the Department had
ordered the Tribe to reinstate St. Marks to the role of Chairman of the
Committee, because the Department did not do so.

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C HIPPEWA C REE TRIBE V. USDOI 13
C.
The Tribe next argues that it had a due process right to a
hearing with cross-examination before the Department
reached its conclusion. But the Tribe consented to the
procedures outlined in the Act, which do not include a
hearing, in exchange for millions of dollars in federal funds.
Just as the Tribe cannot complain that the ARRA
whistleblower provisions it agreed to infringed its
sovereignty, the Tribe also cannot complain that the
accompanying adjudication procedures were insufficient.
It is well within Congress’s power under the Spending
Clause, U.S. Const. art. 1, § 8, cl.1, to “condition the receipt
of funds, by states or others, on compliance with federal
directives.” Nevada v. Skinner, 884 F.2d 445, 447 (9th Cir.
1989). And Congress “has corresponding authority under
the Necessary and Proper Clause,” U.S. Const. art. 1, § 8,
cl.18, “to see to it that taxpayer dollars appropriated under
that power are in fact spent for the general welfare, and not
frittered away in graft or on projects undermined when funds
are siphoned off.” Sabri v. United States, 541 U.S. 600, 605
(2004); see also Rust v. Sullivan, 500 U.S. 173, 195 n.4
(1991) (explaining that Congress’s “power to allocate funds
for public purposes includes an ancillary power to ensure
that those funds are properly applied to the prescribed use”).
Thus, although “the United States is not concerned with and
has no power to regulate local political activities[,] . . . it
does have power to fix the terms upon which its money
allotments to states shall be disbursed.” Oklahoma v. U.S.
Civil Serv. Comm’n, 330 U.S. 127, 143 (1947). As a result,
here Congress could undoubtedly bolster the Act’s
whistleblower protections by requiring grant recipients to
agree to procedures that would allow agencies to investigate
whistleblower complaints more efficiently.

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The Supreme Court has articulated five restrictions on
Congress’s spending authority, South Dakota v. Dole, 483
U.S. 203 (1987), and ARRA stays well within them. See id.
at 207–11. First, “the exercise of the spending power must
be in pursuit of the general welfare.” Id. at 207 (internal
quotation marks omitted). Congress’s goal of encouraging
economic recovery easily complies with this restriction,
even assuming it imposes a constraint at all. See
Mayweathers v. Newland, 314 F.3d 1062, 1066 (9th Cir.
2002) (noting that the Supreme Court “seems doubtful that
failure to advance the general welfare could ever provide
adequate grounds for invalidating a federal statute”).
Second, any conditions imposed on the receipt of funds
must be clear and unambiguous so that recipients are aware
of any consequences of accepting the funds. Dole, 483 U.S.
at 207. In that sense, “legislation enacted pursuant to the
spending power is much in the nature of a contract,” where
Congress’s authority “to legislate . . . rests on whether the
State voluntarily and knowingly accepts the terms of the
‘contract.’” Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 17 (1981). Here, the Act expressly outlines the
procedures that govern whistleblower complaints, and it is
clear that those procedures do not include a hearing or other
opportunity for cross-examination. See § 1553(b), 123 Stat.
at 297–99. And in case there was any doubt, not only did
acceptance of funds under the Act effectively form a
contract, but the Tribe also expressly agreed by written
contracts to ARRA’s procedures.
Third, the “conditions must . . . bear some relationship to
the purpose of the federal spending.” New York v. United
States, 505 U.S. 144, 167 (1992); see also Dole, 483 U.S. at
207. This requirement, too, is easily met by ARRA’s
whistleblower provisions. Because ARRA’s whistleblower

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C HIPPEWA C REE TRIBE V. USDOI 15
procedures are designed to ensure that stimulus funds are
properly spent, they relate directly to Congress’s interest in
ensuring that vast quantities of federal funds are used for
their intended purpose—here, to construct the Tribe’s water
pipeline, and not to line tribal members’ pockets.
Fourth, there must be no “independent constitutional
bar” to the imposed conditions. See Dole, 483 U.S. at 210.
This prong “stands for the unexceptionable proposition that
the [spending] power may not be used to induce the States to
engage in activities that would themselves be
unconstitutional.” Id. It does not prevent Congress from
requiring the Tribe to forego some typically available
procedural protections in exchange for federal funds, at least
when those procedural limitations are imposed only on
investigations related to those funds.
Fifth, Congress cannot use its spending power as a
bludgeon. See Dole, 483 U.S. at 211 (“[I]n some
circumstances the financial inducement offered by Congress
might be so coercive as to pass the point at which ‘pressure
turns into compulsion.’” (quoting Steward Mach. Co. v.
Davis, 301 U.S. 548, 590 (1937))). But it did not do so here.
Importantly, ARRA’s conditions attached only to the
stimulus funds the Tribe received to complete a discrete
infrastructure project. It is true that the stimulus grant
funded a project that was important to the Tribe, but an offer
is not coercive just because it is attractive.
If the Tribe did not wish to take the minor risk that an
agency might erroneously conclude that its termination of an
employee was a prohibited reprisal, then it could simply

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have refrained from applying for stimulus funds.6 But
“Congress d[id] not have to sit by and accept the risk of
operations thwarted by local and state improbity,” Sabri,
541 U.S. at 605, while distributing a massive stimulus
package. It was well within Congress’s prerogative to
diminish—slightly—the full panoply of usual procedural
protections to ensure that agencies could efficiently
investigate whistleblower complaints.7
The Department did commit one procedural error, but
the error was ultimately harmless. The Act requires the IG
to investigate a whistleblower complaint and then submit its
report to the complainant, the employer, and the head of the
appropriate agency. § 1553(b), 123 Stat. at 297–99. The Act
thereby contemplates that an employer will have an
opportunity to respond to the IG’s report before the agency
makes its determination. Here, however, the Tribe did not
have access to the IG’s report until the Department issued its
preliminary decision. This was error; the statute plainly
requires the IG to provide the employer and the agency with
its report at the same time. See id. But because the
Department issued both preliminary and final orders, the
6 We are highly skeptical that a hearing would have led to a different
outcome in this case in any event.
7 We recognize that our decision is in tension with Business
Communications, Inc. v. U.S. Department of Education, 739 F.3d 374
(8th Cir. 2013), which held that the Due Process Clause guaranteed a
contractor a right to either a pre- or post-deprivation hearing when it was
ordered to reinstate an employee who was terminated in alleged
retaliation for reporting the contractor’s non-compliance with ARRA.
See id. at 381. But we disagree with the Eighth Circuit’s apparent
assumption that general due process principles control where a statute
passed pursuant to the spending power conditions the receipt of funding
on agreement to specific procedures.

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C HIPPEWA C REE TRIBE V. USDOI 17
Department was able to cure the error resulting from this
violation. After reviewing the preliminary order—to which
the IG’s report was attached—the Tribe submitted extensive
rebuttal evidence directed to the merits of the underlying
determination. The Department then evaluated all of the
evidence again, and, if anything, in greater detail than it had
in its preliminary order. As a result, this error does not
warrant reversal.8
D.
We next turn to the Tribe’s argument that the
Department erred in finding that the removal of St. Marks
was retaliatory.
The Administrative Procedure Act (“APA”) governs
judicial review of an order issued under ARRA.
§ 1553(c)(5), 123 Stat. at 300 (“Review [under ARRA] shall
conform to chapter 7 of title 5, United States Code.”). Under
the APA, we will set aside the Department’s decision if it
was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). To assess whether the Department’s decision
survives such review, we “must determine whether [it]
articulated a rational connection between the facts found and
the choice made.” See Ariz. Cattle Growers’ Ass’n v. U.S.
Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229,
8 We are not persuaded by the Tribe’s argument that the Department
had already definitively concluded when it issued its preliminary order
that a prohibited reprisal had occurred, and that the Tribe’s efforts to
rebut the complaint were thus entirely futile. The Department’s order
shows that it reviewed the evidence without affording its initial
determination any presumptive weight.

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1236 (9th Cir. 2001). We have no trouble concluding that it
did.
1.
ARRA lays out mechanisms for an employee to provide
evidence of retaliation, and then for an employer to rebut it.
The complainant must first offer evidence that a protected
disclosure “was a contributing factor in the reprisal.”
§ 1553(c)(1)(A)(i), 123 Stat. at 299. The Act allows a
complainant to do this with circumstantial evidence,
including “(I) evidence that the official undertaking the
reprisal knew of the disclosure; or (II) evidence that the
reprisal occurred within a period of time after the disclosure
such that a reasonable person could conclude that the
disclosure was a contributing factor in the reprisal.”
§ 1553(c)(1)(A)(ii), 123 Stat. at 299.
There is no dispute that the Committee knew by
September 2012 that St. Marks had informed the
Department of his suspicions regarding misuse of stimulus
funds. The Committee was thus aware of his disclosure at
the time of the alleged reprisal in March 2013. See
§ 1553(c)(1)(A)(ii)(I), 123 Stat. at 299. And six months is
certainly within the time frame that could lead a reasonable
person to conclude that St. Marks’s whistleblowing was a
“contributing factor” in his removal. See
§ 1553(c)(1)(A)(ii)(II), 123 Stat. at 299; cf. Coszalter v. City
of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (“Depending on
the circumstances, three to eight months is easily within a
time range that can support an inference of retaliation.”).
The Tribe itself repeatedly emphasizes that the
Committee was aware of St. Marks’s disclosure in the fall of
2012. The Tribe seems to assume that this timing immunizes
it because any prohibited reprisal would have to have taken

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C HIPPEWA C REE TRIBE V. USDOI 19
place within a few weeks of the Committee’s learning of the
disclosure, and St. Marks was not discharged until the end of
March 2013. The Tribe’s assumption is incorrect. Our
caselaw does not require that an employer remove an
employee within weeks of discovering a protected disclosure
to support an inference that the two events are causally
linked. Cf. Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir.
2002) (explaining that “an eleven-month gap in time is
within the range that has been found to support an inference
that an employment decision was retaliatory”).9
2.
Once an employee provides evidence of a prohibited
reprisal, the employer can rebut that showing by presenting
“clear and convincing evidence that [it] would have taken
the action constituting the reprisal in the absence of the
disclosure.” § 1553(c)(1)(B), 123 Stat. at 299. The Tribe
presented seven alternative justifications for its decision to
remove St. Marks, including that St. Marks allegedly
improperly removed a tribal judge and verbally and sexually
harassed tribal employees. But the Department soundly
addressed these proffered justifications in its final order. In
particular, the Department emphasized that the Tribe not
only lacked clear and convincing evidence, but in fact lacked
any “contemporaneous evidence documenting discovery of
the alleged unauthorized behavior” or any “timely, formal
. . . process and procedure to investigate and adjudicate any
of the allegations.” The Department reasonably concluded
9 Because the Tribe admits that the Committee knew of St. Marks’s
disclosure in the fall of 2012, it does not matter whether the Committee
knew of the open letter, or indeed whether the letter existed at all. The
analysis in the Department’s order did not turn on the letter. Rather, the
Department emphasized that the Committee was aware of St. Marks’s
disclosure “months” before he was removed.

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20 C HIPPEWA C REE TRIBE V. USDOI
that a “laundry list of unsubstantiated findings in a tribal
government document [was] wholly insufficient to support
the drastic and significant measure of removing an elected
official.”
Moreover, the Tribe does not meaningfully contest the
Department’s conclusion that its proffered justifications
were largely pretextual. Although the Tribe’s brief reiterates
its seven justifications for removing St. Marks from office,
the Tribe does not substantively engage with the
Department’s reasons in its final order for finding those
justifications pretextual. Even if we exercise our discretion
not to treat this as a forfeiture of any challenge to the
Department’s conclusion that the Tribe engaged in a
prohibited reprisal, the Tribe certainly has not presented a
compelling argument that the Department’s decision was
arbitrary or capricious.
E.
Finally, the Tribe contends that, even if a prohibited
reprisal occurred, the agency incorrectly calculated St.
Marks’s monetary award. St. Marks reported to the
Department that he was earning a yearly salary of
$128,000—a figure that the Tribe did not challenge in its
subsequent filing. But the Tribe now argues that because
St. Marks had at an earlier time voluntarily requested a
$50,000 decrease in his yearly salary, the Department erred
by calculating his front and back pay using the initial
$128,000 figure.10
10 It appears that St. Marks requested the pay cut to offset payments
he had authorized to members of the Tribe who were in financial need.

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C HIPPEWA C REE TRIBE V. USDOI 21
The Tribe did not make this argument to the Department,
and it cannot raise it for the first time on appeal.11 See
Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (“It is
a well-known axiom of administrative law that ‘if a
petitioner wishes to preserve an issue for appeal, he must
first raise it in the proper administrative forum.’” (quoting
Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980))).
Thus, regardless of whether the Department should have
used St. Marks’s official salary or his reduced salary to
calculate front and back pay, we affirm the agency’s award.
IV.
For the foregoing reasons, we DENY the Tribe’s
petition.
11 One passing reference in the IG’s file to St. Marks’s offer to
reduce his salary—in a document submitted by St. Marks, no less—was
insufficient to put the Department on notice that the Tribe believed there
was a discrepancy in the Department’s calculations.

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