Preston v. Schweiker, F80-039 CIV.

• Decision Date: 27 January 1983
• Docket Number: No. F80-039 CIV.,F80-039 CIV.
• Citation: 555 F. Supp. 886
• Parties: Lillian N. PRESTON, for herself and all others similarly situated, Plaintiffs, v. Richard SCHWEIKER, in his official capacity as Secretary of the United States Department of Health and Human Services and The United States Department of Health and Human Services, Defendants.
• Court: U.S. District Court — District of Alaska

555 F. Supp. 886

Lillian N. PRESTON, for herself and all others similarly situated, Plaintiffs, v. Richard SCHWEIKER, in his official capacity as Secretary of the United States Department of Health and Human Services and The United States Department of Health and Human Services, Defendants.

No. F80-039 CIV.

United States District Court, D. Alaska, Fairbanks Division.

January 27, 1983.

Daniel L. Callahan, Schendel Law Office, Fairbanks, Alaska, for plaintiffs.

Michael G. Spaan, U.S. Atty., Anchorage, Alaska, Paul Blankenstein, Mary E. Goetten, Dept. of Justice, Civil Division, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

THIS CAUSE comes before the court on defendants' motion to dismiss and plaintiff's motion for summary judgment. Jurisdiction exists pursuant to 28 U.S.C. § 1331(a), 1343(4) and 42 U.S.C. § 2000e-5(f)(3).

I. FACTS

Plaintiff Lillian Preston is an Alaska Native who has been employed by the Indian Health Service (IHS) in Fairbanks, Alaska, since 1975. The IHS is a federal agency currently administered by the United States Department of Health and Human Services. Plaintiff was employed by IHS as a GS-04 medical records technician on December 27, 1976, the date she applied for a job as a GS-11/12 social worker with the agency. Her application was rejected by IHS officials on January 19, 1977, for the reason that she did not possess a master's degree in social work, as required by IHS standards. After exhausting administrative remedies, plaintiff filed this suit.

The amended complaint contains two counts. Only the second count remains in light of stipulated dismissal of count one. Plaintiff alleges policies and actions of defendants constitute racial discrimination in violation of 42 U.S.C. § 2000e-16 as to plaintiff individually. She further alleges that policies and actions of defendants toward plaintiff and the class are unlawful as arbitrary, capricious, an abuse of discretion and not otherwise in accordance with the Indian Preference Act. See 5 U.S.C. § 706(2)(A) (1976). Plaintiff seeks declaratory and injunctive relief regarding count two; including a redefinition of the eligibility criteria for all IHS positions excepted from general civil service job criteria.

II. DEFENDANTS' MOTION TO DISMISS

Defendants seek to dismiss count two on the ground that plaintiff has failed to state a claim upon which relief can be granted. The motion alternatively seeks summary judgment. The alternative motion will not be addressed at this time, however, since the parties inform the court they have not adequately briefed the issues related to summary judgment.

Determination of a rule 12(b)(6) motion involves ruling on a question of law. See Yuba Consolidated Gold Fields v. Kilkeary, 206 F.2d 884, 889 (9th Cir.1953). The motion should not be granted unless it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which could be proven. Alonzo v. ACF Property Management Inc., 643 F.2d 578, 579 (9th Cir.1981).

1. Claim Based on 42 U.S.C. § 2000e-16

The Supreme Court has held the complainant must carry the initial burden of establishing a prima facie case of racial discrimination under 42 U.S.C. § 2000e. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). This may be done by showing 1) that she belongs to a racial minority; 2) that she applied and was qualified for a job for which the employer was seeking applicants; 3) that, despite her qualifications, she was rejected; and 4) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. See id. In this case, plaintiff was not qualified for the job she sought. While there are significant questions concerning the legality of the job criteria at issue, it is clear that plaintiff did not have a master's degree in social work as required by IHS eligibility criteria she was subject to. As a consequence, the portion of count two alleging racial discrimination in violation of 42 U.S.C. § 2000e-16 (1976) must be dismissed for failure to state a claim.

2. Claim Based on APA Violations re Implementing 25 U.S.C. § 472

Defendants allege plaintiff has failed to state a claim for which relief can be granted concerning the Indian Preference Act. This challenge to the sufficiency of the pleadings is inextricably related to legal questions in plaintiff's summary judgment motion. Since defendants have addressed matters outside their pleadings; the motion to dismiss, as it pertains to the claim based on the Indian Preference Act, will be treated as a cross-motion for summary judgment. See Fed.R.Civ.P. 12(b).

III. SUMMARY JUDGMENT MOTIONS

The motions present purely legal issues. Congress passed the Indian Reorganization Act in 1934. Section 12 of the Act, referred to as the Indian Preference Act, provides as follows:

The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.

Indian Reorganization Act, ch. 576, 48 Stat. 986 (1934) (codified at 25 U.S.C. § 472) (emphasis added). This provision was intended to give Indians an employment preference when competing with non-Indians. It changed eligibility criteria for jobs by exempting Indians from civil service standards, and directed the Secretary of Interior to establish new standards applicable to Indians. This duty is currently imposed on the Secretary of Health and Human Services. See 42 U.S.C.A. § 2001 (1981).

A. Omission of the Phrase in 25 U.S.C. § 472

While the Indian Preference Act originally authorized appointments "without regard to civil service laws," the phrase was omitted from the 1976 United States Code as obsolete. See 25 U.S.C. § 472 (1976). The primary reason for the omission is the Act of November 26, 1940, ch. 919, 54 Stat. 1211. This statute gave the President authority to cover into the classified civil service any offices or positions in an executive department. Positions exempted from this authority were specifically listed, and Indian positions were not among them.¹

Plaintiff contends the phrase "without regard to civil service laws" was erroneously omitted from the 1976 codification. The court disagrees because the phrase at issue was repealed by implication.²

In general, repeals by implication are not favored. Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); Blackfeet Tribe of Indians v. Groff, No. 81-3041 (9th Cir. Dec. 14, 1982). The Supreme Court has held that in the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Morton v. Mancari, 417 U.S. at 550, 94 S.Ct. at 2482. In the present case there is no affirmative showing that the Act of November 26, 1940 or its legislative history evidences a congressional intent to repeal any portion of the Indian Preference Act. The two statutes are also irreconcilable concerning the procedure by which IHS job criteria are promulgated. The 1934 legislation requires that job criteria be established for Indians "without regard to civil service laws." In contrast, the 1940 Act authorizes the President to apply classified civil service laws to IHS positions. The language of these statutes cannot be reconciled. Omission of the phrase "without regard to civil service laws" from 25 U.S.C. § 472 (1976) was therefore proper since repeal by implication made the phrase obsolete.³

B. Establishment of Standards for Indians

The remaining inquiry for the court concerning hiring standards for IHS positions is whether they were properly established at the time plaintiff was denied employment as a social worker. Defendants contend the required standards were established and plaintiff was denied the position because she was not qualified. Plaintiff counters by arguing that the standards in effect at the time she applied for the position were unlawful.

The record reveals that IHS job criteria in effect at the time plaintiff applied for the social worker position were identical to civil service regulations generally applied to health care positions throughout the federal government. In determining whether these standards were properly established for the purpose of the Preference Act, the court will need to focus on the factors considered when the standards were adopted.

Since the phrase in the Preference Act (without regard to civil service laws) was implicitly repealed by the 1940 legislation, it is obvious that civil service laws could be considered in establishing the required standards. An important question remains, however, as to what considerations, if any, Congress intended must be part of the process establishing the standards.

The court reads the legislative history of the Indian Preference Act as evidence of Congress' intent that the Secretary establish standards based on Indians' unique temperament, training and capacity. See 78 Cong.Rec. 11731 (1934) (remarks of Rep. Howard). There is also evidence of an intent to establish a separate Indian civil service. See id. at 11727. See also F. Cohen, Handbook of Federal Indian Law, § 4(B)(2), p. 159 (1942 ed.). It follows that Congress did not intend that there be blind transference of general civil service criteria to the context of Indian employment addressed in the Preference Act. See Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 716-17 (8th Cir.1979).

It may be argued that repeal of the phrase "without regard to civil...