Beams v. Norton, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RICHARD LEE BEAMS,

Plaintiff - Appellant,

v.

GALE NORTON, Secretary of

Department of Interior,

Defendant - Appellee.

No. 04-3393

(D.C. No. 03-CV-4072-JAR)

(Dist. Kan.)

ORDER AND JUDGMENT(*)

Before SEYMOUR, KELLY, and MURPHY Circuit

Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Richard Lee Beams appeals from district court orders that dismissed his

Indian Preference Act (IPA) claim for lack of subject matter jurisdiction and

failure to state a claim, see 25 U.S.C. 472, and entered summary judgment

on

his discrimination and retaliation claims, 29 U.S.C. 633a;

42 U.S.C. § 2000e-16.

We review a dismissal for lack of subject matter jurisdiction de novo.

Radil v. Sanborn Western Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004).

Whether a private right of action exists is a jurisdictional concern, Hancock v.

Blue Cross-Blue Shield of Kansas, Inc., 21 F.3d 373, 374 (10th Cir. 1994), which

turns on "'whether Congress intended to create the private remedy asserted.'"

Southwest Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1169 (10th

Cir. 2001) (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,

16 (1979)). As for orders granting summary judgment, our review is de novo,

Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004), to determine

whether "the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c).

After reviewing the parties' briefs, the record, and the applicable law, we

conclude that the district court did not err in dismissing appellant's IPA claim and

entering summary judgment on appellant's discrimination and retaliation claims.

Accordingly, we AFFIRM the challenged decisions for substantially the same

reasons stated by the district court in its July 30, 2004, and September 7, 2004

orders.(1)

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. We decline to adopt that portion of

the district court's July 30, 2004

decision that examines Beams' IPA claim under Federal Rule of Civil Procedure

12(b)(6) and finds a failure to plead a claim for non-monetary relief under the

Administrative Procedure Act. See Steel Co. v. Citizens for a Better

Env't, 523

U.S. 83, 94, 101-02 (1998).

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