Solomon v. Interior Regional Housing Authority, 01-35766.

• Decision Date: 20 December 2002
• Docket Number: No. 01-35766.,01-35766.
• Citation: 313 F.3d 1194
• Parties: Vernon SOLOMON, Plaintiff-Appellant, v. INTERIOR REGIONAL HOUSING AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

313 F.3d 1194

Vernon SOLOMON, Plaintiff-Appellant, v. INTERIOR REGIONAL HOUSING AUTHORITY, Defendant-Appellee.

No. 01-35766.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2002.

Filed December 20, 2002.

Michael J. Walleri, Law Offices of Michael J. Walleri, Fairbanks, AK, for the plaintiff-appellant.

Tracey L. Knutson and Craig Wm. Black, Sisson & Knutson, P.C., Anchorage, AK, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-00-00001-F-JWS.

Before: B. FLETCHER, ALARCON, and GRABER, Circuit Judges.

GRABER, Circuit Judge.

Title 25 U.S.C. § 450e(b) provides that "[a]ny contract, subcontract, grant, or subgrant pursuant to [an act] authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible," preference shall be given to Indians in the employment and training opportunities connected with the grant. This appeal requires us to decide whether that statute creates a private right of action for a Native Alaskan who applied unsuccessfully for a job with a Native Alaskan regional housing authority. The answer to that question is "no."

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Vernon Solomon is a Native Alaskan. Defendant Interior Regional Housing Authority (Authority) is a regional housing authority formed by Native Alaskan associations pursuant to Alaska Statute § 18.55.996. The Authority provides housing services to low-income Native Alaskans. 1982 Op. Alaska Att'y Gen. (June 8, No. J-66-220-82A) (1982 WL 43622); see also 25 U.S.C. § 4103(21)(B) (recognizing regional housing authorities in the state of Alaska for the purpose of the Native American Housing Assistance and Self-Determination Act).

The Authority receives block grants under the Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243 (NAHASDA). Those grants are administered by the Secretary of Housing and Urban Development (HUD). 25 U.S.C. § 4102. The grants are subject to the Indian preference requirements of 25 U.S.C. § 450e(b). 24 C.F.R. §§ 1000.48 and 1000.50.

According to his complaint, Plaintiff worked for the Authority until 1990, when he suffered on-the-job injuries for which he received a workers' compensation award. Upon recovering from his injuries, Plaintiff again sought employment with the Authority. In 1996, Plaintiff applied for the position of maintenance counselor, but was not hired. Instead, the Authority hired another Native Alaskan. In 1998, Plaintiff applied for the position of tribal housing officer. Again, the Authority declined to hire Plaintiff and, this time, opted instead to employ a non-Native.

Plaintiff initiated this action in January 2000. He brought two claims: one under 25 U.S.C. § 450e, and a state-law claim alleging that the Authority retaliated against him because he had made a workers' compensation claim. His claim under § 450e alleged, in pertinent part: "The failure to employ Mr. Solomon in deference to a non-Native hire violates 25 USC [§] 450e and agency regulations applicable to [the Authority]." Plaintiff sought damages as a remedy.

The parties filed cross-motions for summary judgment. The district court requested supplemental briefing from the parties on two issues that they had not raised: whether the Authority was protected by sovereign immunity and whether 25 U.S.C. § 450e creates a private right of action for an unsuccessful job applicant. After the submission of the supplemental briefs, the district court granted summary judgment in favor of the Authority on the ground that § 450e creates no private right of action. The court dismissed Plaintiff's supplemental statelaw claim without prejudice, and Plaintiff timely appealed.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). Viewing the facts in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the applicable law. Id. We may affirm a grant of summary judgment on any ground supported by the record. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.2001).

DISCUSSION

When Congress enacts a statute that is silent with respect to its enforcement, it could be intending to create any one of at least five remedial regimes: (1) an affected party has a private right of action in court for which no exhaustion of administrative remedies is required; (2) an affected party has a private right of action in court for which exhaustion is required; (3) an affected party has a right to choose between pursuing a private right of action in court or an administrative remedy; (4) an affected party has no private right of action in court but, instead, is limited to an administrative remedy; or (5) an affected party has no enforcement mechanism available to it. Here, the record is silent as to whether Plaintiff pursued an administrative remedy. That silence is of no moment, however, unless Congress intended the second of those remedial alternatives. Plaintiff argues that the first alternative applies. For the reasons that follow, we hold that Congress intended the fourth alternative to apply here; that is, Plaintiff has no private right of action in court whether or not he pursued an administrative remedy.

Title 25 U.S.C. § 450e(b) provides, as relevant to this case:

Any ... grant ... pursuant to this subchapter, the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C.A. § 452 et seq.], or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible —

(1) preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians[.]

NAHASDA calls for the Secretary of HUD to make block grants "on behalf of Indian tribes to carry out affordable housing activities." 25 U.S.C. § 4111(a). Grants made under NAHASDA are therefore covered by the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-458bbb-2 (ISDEAA), as a "grant ... pursuant to [an act] authorizing... grants to Indian organizations or for the benefit of Indians." 25 U.S.C. § 450e(b); see 24 C.F.R. § 1000.48; 24 C.F.R. § 1000.50 ("To the greatest extent feasible, preference and opportunities for training and employment in connection with the administration of grants awarded under this part shall be given to Indians."). Defendant receives block grants under NAHASDA. Plaintiff argues that Defendant violated the ISDEAA, 25 U.S.C. § 450e(b), when it hired a non-Native — instead of him — for the position of tribal housing advisor and that the statute authorizes a private right of action for damages stemming from the violation.

In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court of the United States established a four-factor test for analyzing whether the violation of a federal statute gives rise to a private right of action.¹ See also Cannon v. Univ. of Chi., 441 U.S. 677, 689, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). First, we must determine "whether the statute was enacted for the benefit of a special class of which the plaintiff is a member." Id. Second, we must ascertain whether there is "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one." Cort, 422 U.S. at 78, 95 S.Ct. 2080. This factor requires an examination of legislative history. Cannon, 441 U.S. at 694, 99 S.Ct. 1946. Third, we consider whether implying a private remedy "would frustrate the underlying purpose of the legislative scheme." Id. at 703, 99 S.Ct. 1946. Finally, we analyze "whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the States." Id. at 708, 99 S.Ct. 1946. In a case involving an Indian tribe, we apply the final factor by determining whether "federal remedies would interfere with matters traditionally relegated to the control of semi-sovereign Indian tribes." Id. at 691 n. 13, 99 S.Ct. 1946 (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)).

A. Class Benefited by § 450e

In analyzing whether the first factor weighs in favor of implying a private right of action, we look at the text of the statutory provision at issue. Cannon, 441 U.S. at 689, 99 S.Ct. 1946. The Supreme Court has held that specific wording that prohibits the denial of a benefit to an individual "person" or "employee" supports an inference that Congress intended to provide a private right of action. Id. at 689, 99 S.Ct. 1946. By contrast,

[t]here would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting [the statute at issue] with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices.

Id. at 690-93, 99 S.Ct. 1946.

Here, the operative wording of 25 U.S.C. § 450e does not refer to individual Indians. Rather, the statute simply requires that, when grants are made to "Indian organizations or for the benefit of Indians" in general, Indians should receive associated employment or training opportunities "to the greatest extent feasible." The statute confers a benefit (a required term in contracts and grant agreements) collectively, rather than individually.

Moreover, the traditional meaning of the word "preference" in the context of Indian employment suggests that a preference is not an individual right. In Morton...