Burgert v. Pauahi Bishop Trust

• Decision Date: 26 January 2000
• Docket Number: No. 98-16238,NON-PROFIT,N-PROFIT,98-16238
• Parties: (9th Cir. 2000) ELIZABETH SIMEONA BURGERT, an individual, Plaintiff-Appellant, and FRANCINE DAWSON, an individual; BELINDA ANAHUEA BURGERT, an individual; SHIRLEY KALA, an individual; on behalf of themselves and all beneficiaries of the Bishop Estate, Plaintiffs, v. THE LOKELANI BERNICE PAUAHI BISHOP TRUST, a charitable trust administered under the laws of the State of Hawaii; RICHARD S.H. WONG, an individual; MARION MAE LOKELANI LINDSEY, an individual; HENRY PETERS, an individual; GERARD JERVIS, an individual; OSWALD K. STENDER, an individual; THE BERNICE PAUAHI BISHOP ESTATE, a charitable trust administered under the laws of the State of Hawaii; JOHN DOES 1-5; JOHN DOES CORPORATIONS 1-5; JOHN DOE PARTNERSHIPS 1-5; ROE CORPORATIONS 1-5; DOE PARTNERSHIPS 1-5; ROEORGANIZATIONS 1-5; ROE GOVERNMENTAL GENCIES 1-5, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 661

200 F.3d 661 (9th Cir. 2000)

ELIZABETH SIMEONA BURGERT, an individual, Plaintiff-Appellant and FRANCINE DAWSON, an individual; BELINDA ANAHUEA BURGERT, an individual; SHIRLEY KALA, an individual; on behalf of themselves and all beneficiaries of the Bishop Estate, Plaintiffs, v. THE LOKELANI BERNICE PAUAHI BISHOP TRUST, a charitable trust administered under the laws of the State of Hawaii; RICHARD S.H. WONG, an individual; MARION MAE LOKELANI LINDSEY, an individual; HENRY PETERS, an individual; GERARD JERVIS, an individual; OSWALD K. STENDER, an individual; THE BERNICE PAUAHI BISHOP ESTATE, a charitable trust administered under the laws of the State of Hawaii; JOHN DOES 1-5; JOHN DOES CORPORATIONS 1-5; JOHN DOE PARTNERSHIPS 1-5;

ROE CORPORATIONS 1-5; DOE PARTNERSHIPS 1-5; ROE NON-PROFIT ORGANIZATIONS 1-5; ROE GOVERNMENTAL GENCIES 1-5, Defendants-Appellees.

No. 98-16238

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted November 1, 1999

Decided January 26, 2000

Joseph W. Cotchett, Cotchett, Pitre & Simon, Burlingame, California, for the plaintiff-appellant.

William C. McCorriston, McCorriston, Miho, Miller & Mukai, Honolulu, Hawaii, for defendants-appellees Richard S. Wong, Marion M. L. Lindsey, and Henry Peters.

Rosemary Fazio, Ashford & Wriston, Honolulu, Hawaii, for defendant-appellee the Estate of Bernice Pauahi Bishop.

Stacey M. Robinson, McCorriston, Miho, Miller & Mukai, Honolulu, Hawaii, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CV-97-01637-HG

Before: Dorothy W. Nelson, Alex Kozinski, and William A. Fletcher, Circuit Judges.

W. FLETCHER, Circuit Judge:

This appeal presents the question whether the Native Hawaiian Education Act and the Native Hawaiian Health Care Act create implied private rights of action. The district court concluded that the acts do not create such rights of action and dismissed plaintiff's suit for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). We affirm.

Elizabeth S. Burgert and others initiated this class action against the Bishop Trust and individual named trustees on behalf of all Native Hawaiians. The complaint alleged misuse of federal funds by the trust in violation of federal law, as well as violations of state law arising out of the same factual allegations. The Bishop Trust is a charitable testamentary trust established by the last direct descendent of King Kamehameha I, Princess Bernice Pauahi Bishop, who left her property in trust for a school dedicated to the education and upbringing of Native Hawaiians. The district court entered judgment in favor of defendants, finding that the federal statutes do not create private rights of action and dismissing the state law claims under 28 U.S.C. S 1367(c). Plaintiff Burgert timely appealed. We have jurisdiction under 28 U.S.C. S 1291.

We review de novo a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Arnett v. California Pub. Employees Retirement Sys., 179 F.3d 690, 694 (9th Cir. 1999); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See Enesco Corp. v. Price/Costco Inc. , 146 F.3d 1083, 1085 (9th Cir. 1998). The reviewing court may affirm the dismissal upon any basis fairly supported by the record. See, e.g., Steckman, 143 F.3d at 1295.

Discussion

Plaintiffs sued under the Native Hawaiian Education Act (NHEA), 20 U.S.C. SS 79017912, and the Native Hawaiian Health Care Act (NHHCA), 42 U.S.C. SS 1170111714. The purposes of the NHEA include authorizing and developing educational programs, providing direction and guidance to local, state and federal agencies, supplementing and expanding existing programs, and encouraging participation of Native Hawaiians in the planning and management of Native Hawaiian education programs. See 20 U.S.C.S 7903. The act authorizes the Secretary of Education to establish organizations and programs specifically to benefit Native Hawaiians, such as councils, family and community-based centers, and various educational programs. See 20 U.S.C.SS 7904-10. The act authorizes the Secretary of Education to make direct grants to fund these organizations and programs. See id.

The NHHCA similarly creates and funds various programs.

In its declaration of intent, Congress lists numerous specific health goals that it hopes to achieve by the year 2000. See 42 U.S.C. S 11702(b). To further its goal of improving the health of Native Hawaiians, the act provides additional resources to existing health care programs. The act also authorizes the creation of a comprehensive health care master plan for Native Hawaiians; the provision of programs for comprehensive health promotion, disease prevention and primary health services; and the granting of scholarships to Native Hawaiians. See 42 U.S.C. SS 11703, 11705, 11709. Most programs and grants under the act are administered through Papa Ola Lokahi, an organization consisting of various Hawaiian organizations including the Office of Hawaiian Affairs, the Office of Hawaiian Health, the University of Hawaii, and Hawaiian health care providers from each island. See 42 U.S.C. S 11711. The statute authorizes periodic review and evaluation of the grants and contracts. See 42 U.S.C. S 11707.

Because neither the NHEA nor the NHHCA contains an express private right of action, we are asked to decide on this appeal whether private rights of action may be inferred from the statutes. Cort v. Ash, 422 U.S. 66 (1975), provides four factors to guide that determination:

First, is the plaintiff one of the class for whose espe cial benefit the statute was enacted -that is, does the statute create a federal right in favor of the plain tiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law?

Id. at 78 (internal quotations and citations omitted).

Since its decision in Cort, the Supreme Court has emphasized that the central question is congressional intent. See, e.g., California v. Sierra Club, 451 U.S. 287, 297 (1981); Cannon v. University of Chicago, 441 U.S. 677 (1979). In Touche Ross & Co. v. Redington, 442 U.S. 560 (1979), the Court explained that "The ultimate question is one of congressional intent," and that "the first three factors discussed in Cort -the language and focus of the statute, its legislative history, and its purpose are ones traditionally relied upon in determining legislative intent." Id. at 575-76 (citations omitted). In applying Cort, we have emphasized that congressional intent is the ultimate issue and have analyzed the language of the statute, legislative history, and legislative scheme to determine this intent. See Channel Star Excursions, Inc. v. Southern Pacific Transp. Co., 77 F.3d 1135, 1136-37 (9th Cir. 1996).

Applying Cort's four-part test to the NHEA and the NHHCA, the district court found no implied private rights of action. While finding that Congress intended the statutes to confer benefits on the class plaintiff sought to represent, the district court found no expression of congressional intent to imply private rights of action in either the language or the legislative history of the two acts. The district court similarly did not find support for...