Leisnoi, Inc. v. Merdes & Merdes, P.C.

I. INTRODUCTION

Leisnoi, Inc., an Alaska Native corporation, retained the law firm of Merdes & Merdes to represent it in litigation against Omar Stratman over its certification of and title to certain lands Leisnoi claimed under the Alaska Native Claims Settlement Act. Leisnoi and Merdes entered a contingency fee agreement under which, if Leisnoi was successful in the litigation, Merdes would receive an interest in the lands Leisnoi obtained or retained. The Stratman case was resolved in 1992 in favor of Leisnoi, although Stratman appealed and the related litigation continued for another decade. Leisnoi challenged the validity of the fee agreement with Merdes. A bar-appointed Arbitration Panel determined that Merdes was not entitled to an interest in the land itself, but was entitled to payment equal to a percentage of the adjusted value of Leisnoi’s property, plus interest. In 1995, upon Merdes’s motion, Superior Court Judge Brian C. Shortell confirmed the fee award and entered judgment against Leisnoi. For several years, Leisnoi made payments pursuant to the schedule laid out by the Arbitration Panel. In September 2002, Leisnoi ceased making payments and the judgment went into default. Leisnoi and Merdes subsequently attempted to negotiate a settlement; Merdes did not pursue execution during this period.

In October 2008, the Stratman litigation finally concluded in Leisnoi’s favor. The following year, Merdes moved the superior court to issue a writ of execution. Leisnoi opposed the motion on the grounds that Merdes had not shown just and sufficient cause for failing to seek a writ of execution within five years of entry of the 1995 judgment. Leisnoi subsequently moved for relief from the 1995 judgment under Alaska Civil Rule 60(b), arguing among other things that the judgment was void under 43 U.S.C. § 1621(a)‘s restrictions on contingency fee contracts involving Alaska Native Claims Settlement Act lands. In January 2010, Superior Court Judge Sen K. Tan issued an order denying Leisnoi’s Rule 60(b) motion and granting Merdes’s motion to execute. Six months later, Leisnoi paid Merdes the remaining balance. Leisnoi now appeals the superior court’s ruling.

This case presents a number of complex issues involving questions of waiver and whether the superior court’s 1995 judgment was void or voidable. We conclude that Leisnoi did not waive its right to appeal by paying Merdes the balance due on the judgment. We conclude that the Arbitration Panel’s fee award and the superior court’s 1995 entry of judgment violated 43 U.S.C. § 1621(a)‘s prohibition against attorney contingency fee contracts based on the value of Native lands that were subject to the Act. We conclude that the superior court’s 2010 order granting Merdes’s motion to execute on the 1995 judgment separately violated the Act’s prohibition against executing on judgments arising from prohibited attorney contingency fee contracts, and that order is reversed. We conclude that, notwithstanding the illegality of the Arbitration Panel fee award and the 1995 judgment, Leisnoi is not entitled to relief pursuant to Civil Rule 60(b): We conclude that the 1995 order was voidable rather than void for purposes of Civil Rule 60(b), and therefore not subject to attack under Civil Rule 60(b)(4); we also conclude that Leisnoi is not entitled to relief under Civil Rule 60(b)(5) or 60(b)(6). Accordingly, Merdes must return Leisnoi’s payment of the $643,760 balance on the judgment, with interest, but Leisnoi is not entitled to recover payments made prior to the issuance of the writ of execution. Merdes may file an action for any fees it believes it is entitled to under a theory of quantum meruit.

II. FACTS AND PROCEEDINGS

Leisnoi, Inc. is a Native corporation certified under the Alaska Native Claims Settlement Act (ANCSA).[1] In January 1988, Leisnoi retained attorney Ed Merdes to represent it in litigation against Omar Stratman. Stratman sought to compel Leisnoi to comply with the terms of a prior settlement with Koniag, Inc., another Native corporation from which Leisnoi had been demerged in 1983, under which Koniag had agreed to sell certain lands on Kodiak Island to Stratman.[2] Leisnoi, which had received a 1985 patent to the surface rights of the land at issue, refused to honor the settlement.[3]

Merdes and Leisnoi entered into a contingency fee agreement providing that if the litigation proved successful, Merdes would be “remunerated by the Client conveying to him an undivided thirty percent . . . interest in all lands and/or settlement the Client succeeds in obtaining and/or retaining by virtue of said litigation,” along with any attorney’s fees awarded by the court. In 1992, the case was resolved in favor of Leisnoi, which kept title to its lands.[4] (Stratman appealed, and the litigation continued until its final resolution in 2008.[5]) Merdes filed a Notice of Attorney’s Lien in the Alaska Supreme Court on July 20, 1992, purporting to place a lien on the approximately 19,000 acres of real property that was the subject of the litigation. Leisnoi challenged the validity of the fee agreement and requested arbitration with the Alaska Bar Association’s Fee Review Committee (“Arbitration Panel”).

The Arbitration Panel held a hearing in May 1994 at which both parties presented evidence and argument. The Arbitration Panel found that Merdes did not adequately explain the contingency fee agreement to Leisnoi’s Board of Directors and failed to “make sure that the board . . . understood that [Merdes] would end up being a co-owner of an undivided 30% interest in the land” — a situation that could cause Leisnoi to lose its tax exemption on the land. The Arbitration Panel also found that Merdes had, without Leisnoi’s knowledge or consent, improperly agreed to divide his fees with other attorneys he hired to help with the case. The Arbitration Panel noted, however, that “Ed Merdes . . . did fight an uphill battle and achieved the best possible outcome on behalf of the client” and “took a considerable risk that his time would be completely uncompensated.”

The Panel declined to award Merdes a 30% interest in the land itself. But it found that 30% was a “reasonable percentage” and awarded $721,000 in attorney’s fees, plus interest, payable in $100,000 yearly installments. It appears to have calculated this amount by taking 30% of the value of the land after substantially discounting that value to reflect clouds on Leisnoi’s title, the portion of the land subject to pre-existing low-rent grazing leases, and payments made by Leisnoi to Merdes pursuant to a modification not clearly agreed to by the Leisnoi board. Interest was to accrue at 8% per annum, except that any payments in default would accumulate interest at 10.5% per annum. The Panel also ordered Leisnoi to pay Merdes $55,000 in court-awarded attorney’s fees. Both parties subsequently filed applications for modification with the Arbitration Panel; in an August 1994 decision, the Arbitration Panel clarified the applicable interest rates and declined to modify the panel-awarded attorney’s fee amount. It noted:

The panel does not agree with Leisnoi’s characterization that the arbitration award in this matter set aside or voided the contingent fee contract between Merdes and Leisnoi. The panel specifically refused to void the contract or award fees based on hourly rates . . . Rather . . . the arbitration award interpreted the contingent fee contract to not be a 30% ownership interest in land, but a security interest or lien against the land . . . The arbitration award is an attempt to allow Leisnoi to preserve its lands by buying out Merdes from the attorney’s lien.

In January 1995, in response to a motion by Merdes, the superior court issued an order confirming the Arbitration Panel’s award of fees and entered judgment for attorney’s fees to Merdes against Leisnoi. That same year, Leisnoi made payments totaling $100,000. It continued to make annual $100,000 payments for the next five years, followed by two $50,000 payments in October 2001 and April 2002. (These $50,000 payments covered the installment due September 1, 2001, which Leisnoi had not paid when it was due.) At that point, Leisnoi, which still had payments outstanding to cover the substantial interest accrued on the judgment, ceased making payments. Leisnoi later explained that “the continued expense of litigation in defense of its property . . . prevented it from making further payment.” The obligation under judgment went into default as of September 1, 2002.

Over the next several years, Merdes attempted to negotiate with Leisnoi regarding its unpaid fees. Leisnoi appears to have been open to negotiation, and it repeatedly thanked Merdes for being patient and indicated that payments would be forthcoming when funds were available. For example, in April 2002, an attorney representing Leisnoi wrote to Merdes,

I want to thank you in advance for your patience. As you know, [Leisnoi is] still in difficult financial circumstances, but there is hope that this picture may change. If so, I will be recommending to the Board that the remaining amount outstanding be paid in full [if] and when funds are available to do so.

Leisnoi generally did not dispute the validity of the judgment awarded to Merdes and actively proposed settlement arrangements.[6] Merdes did not pursue execution during this period; Ward Merdes explained in an affidavit, “I have held-off execution largely because of negotiations with Leisnoi, Inc., and because it was unclear that Leisnoi, Inc. would even continue to exist — until its recent success in the Stratman decertification litigation. Prudence has dictated that Merdes, by necessity, seek to avoid . . . direct involvement in Stratman’s protracted litigation with Leisnoi, Inc.”

Merdes recorded the 1995 superior court judgment against Leisnoi in the Kodiak Recording District in May 2007. On October 6, 2008, the Ninth Circuit ruled in favor of Leisnoi in its litigation against Stratman.[7] Merdes moved for the superior court to issue a writ of execution on January 27, 2009. Leisnoi opposed the motion, arguing that Merdes had not shown just and sufficient cause for failing to seek a writ of execution within five years of entry of judgment. Leisnoi also moved to expunge the notice of attorney lien and judgment lien filed by Merdes. Leisnoi subsequently moved for relief from the 1995 judgment under Civil Rule 60(b), arguing that the judgment was void under 43 U.S.C. § 1621(a), that enforcement of the judgment was no longer just or equitable, and that Leisnoi’s prior board of directors failed to properly protect the interests of the Native corporation. Merdes replied to Leisnoi’s opposition and opposed the Rule 60(b) motion.

On January 13, 2010, the superior court issued an order denying Leisnoi’s Rule 60(b) motion, granting Merdes’s motion to execute, and granting Leisnoi’s motion to expunge the judgment lien and attorney lien. Leisnoi subsequently settled the claims of the other attorneys hired by Merdes. In July 2010, Leisnoi paid Merdes $643,760, the remaining balance owed. Leisnoi claims that it “was forced to borrow the funds” to pay and did so to remove clouds from its land title “[s]o that it could pursue business opportunities.” Leisnoi now appeals the superior court’s January 2010 order.

III. STANDARD OF REVIEW

“The standard for review of an order denying a Rule 60(b) motion is whether the superior court abused its discretion. Reversal is justified only if this court concludes the trial court was clearly mistaken.”[8] “We will find an abuse of discretion only where, the record as a whole leaves us with a definite and firm conviction that a mistake has been made.”[9] However, “no question of the lower court’s discretion is presented by a Rule 60(b)(4) motion [seeking relief from a void judgment] because the validity of a judgment is strictly a question of law.”[10] We review questions of law de novo.[11]

The superior court’s decision to issue a writ of execution more than five years after entry of judgment is a mixed question of law and fact.[12] Questions of law are reviewed de novo, and questions of fact are reviewed for clear error.[13]

IV. DISCUSSION

A. Leisnoi Did Not Waive Its Right To Appeal By Paying The Judgment Against It.

Merdes argues that Leisnoi waived its right to appeal by voluntarily satisfying the judgment against it in July 2010. Merdes contends that Leisnoi’s “cryptic unsworn assertion” that it paid the judgment “so that it could pursue business opportunities” is insufficient to overcome the presumption of voluntary payment, and further, that Leisnoi could have deposited its funds into the registry of the court or otherwise indicated that it was paying under protest. Merdes cites to a number of cases from other jurisdictions for the proposition that “when a judgment debtor voluntarily satisfies the judgment in full, he waives any right to appeal.”[14] Leisnoi replies that it had limited options in response to Merdes’s pursuit of execution upon the judgment: It could do nothing and allow Merdes to collect the judgment; it could seek a stay of enforcement of the judgment by posting a supersedeas bond; or it could pay the judgment. Leisnoi characterizes the first two options as so undesirable — based on both the potential “embarrassment” and disruption of its business associated with involuntary collection procedures and the high cost of posting a supersedeas bond — that it had no choice but to pay the judgment.

We have not directly discussed the question when payment of a judgment will result in waiver of the right to appeal. Some jurisdictions hold that payment of an adverse judgment is compulsory.[15] Thus, payment of such a judgment is not “voluntary” and only waives the right to appeal if the payment was part of a compromise or settlement or if payment makes it impossible to render effective relief.[16] Other jurisdictions hold that mere payment of an adverse judgment before the issuance of an execution may bar an appeal.[17] We agree with the U.S. Supreme Court that “[t]here can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money.”[18] As the Sixth Circuit explained,

[A] defeated party's compliance with a ... [trial] court ruling does not bar him from appealing unless his compliance has made it impossible for the appellate court to grant effective relief. This is true even if the defeated party has failed to avail himself of an opportunity to obtain a stay of the proceedings or a supersedeas.[19]

We conclude a rule providing that payment of an adverse judgment is involuntary properly protects the judgment debtor’s right to appeal and the creditor’s interest in prompt payment. This rule also minimizes the accrual of interest and the cost of enforcing a judgment.[20]

Here, Merdes has failed to show that Leisnoi’s payment indicated an intent to compromise or settle. And we can discern no intent of Leisnoi to waive its right to appeal the judgment. Because we hold that payment of an adverse judgment entered by a court in the absence of a compromise or settlement is involuntary as a matter of law, we conclude that Leisnoi’s payment was involuntary, and Leisnoi did not waive its right to appeal.

B. The Arbitration Panel’s Fee Award, The Superior Court’s Entry Of Judgment, And The Superior Court’s Issuance Of The Writ Of Execution Violated 43 U.S.C. § 1621(a).

Leisnoi argues that its fee agreement with Merdes, the Arbitration Panel’s fee award, the superior court’s 1995 entry of judgment, and the superior court’s 2010 issuance of the writ of execution violated 43 U.S.C. § 1621(a). That statute, part of ANCSA, provides:

None . . . of the lands granted by [ANCSA] to the Regional and Village Corporations and to Native groups or individuals shall be subject to any contract which is based on a percentage fee of the value of all or some portion of the settlement granted by this Act. Any such contract shall not be enforceable against any Native . . . or any Regional or Village Corporation and the revenues and lands granted by this Act shall not be subject to lien, execution or judgment to fulfill such a contract.[21]
Leisnoi contends that this statute prohibited the contingency fee contract and the superior court's actions ("execution or judgment to fulfill such a contract"[22]), making it error for the superior court to enter judgment on the fee award and to grant Merdes's motion for issuance of a writ of execution. The preliminary question is whether the fee agreement, as interpreted by the Arbitration Panel, violated 43 U.S.C. § 1621(a). Leisnoi did not raise this issue before the Arbitration Panel.
1. Arbitration award

As Leisnoi points out, the superior court’s 2010 order implied that the statute was applicable to the contract between Merdes and Leisnoi, as interpreted by the Arbitration Panel: The superior court noted that “the Arbitration Award decision was clear that the monetary award was based on its estimate of 30% of the value of Leisnoi’s land. There is no question that the $721,000 [award to Merdes] was ‘based on a percentage fee of the value of all or some portion of the settlement granted.'”[23] Merdes, on the other hand, argues that Leisnoi “successfully convinced the Arbitration Panel that the fee agreement is unenforceable . . . as written” and “[t]he fact that the Panel struck down the agreement for reasons other than one based on § 1621(a) does not change the fact that Leisnoi got what it petitioned for: a ruling abrogating the agreement’s percentage-fee term and an independently calculated monetary fee based on fairness and reasonableness.” Merdes contends that section 1621(a) does not take away the power of the Arbitration Panel or superior court to award reasonable attorney’s fees, and claims that Leisnoi’s position implies Merdes has already received sufficient payment.

Leisnoi is correct that the Arbitration Panel’s award fell within the parameters prohibited by 43 U.S.C. § 1621(a). And it is clear that the original agreement between Merdes and Leisnoi violated the statute: It was based on a percentage fee of the value of Leisnoi’s ANCSA lands. Contrary to Merdes’s argument that the Arbitration Panel abrogated the contract’s percentage fee award and “independently calculated [a] monetary fee,” the Arbitration Panel itself stated that it had “specifically refused to void the contract . . . . Rather . . . the arbitration award interpreted the contingent fee contract to not be a 30% ownership interest in land, but a security interest or lien against the land . . . .” In other words, the Arbitration Panel essentially enforced the contingency fee contract — making what it viewed as a minor adjustment to avoid the problems associated with giving Merdes co-ownership in the land itself — and thus violated 43 U.S.C. § 1621(a). (The adjustment made by the Arbitration Panel was arguably an independent violation of section 1621(a) to the extent it subjected ANCSA lands to a lien in order to fulfill the contingency fee contract.)

2. Entry of judgment

Leisnoi argues that the 1995 judgment was entered in violation of 43 U.S.C. § 1621(a)‘s prohibition on “judgment[s] to fulfill . . . contract[s] [for ANCSA lands].” Merdes responds that Leisnoi failed to present this argument to the Arbitration Panel or superior court before the 1995 judgment was entered, effectively waiving it. Merdes also generally contends that the statute does not deprive states of their power to award reasonable attorney’s fees.

Whether the entry of judgment on the illegal contract constitutes a separate violation of 43 U.S.C. § 1621(a) depends on whether the statute is viewed as creating a defense that must be raised by the parties or, alternatively, an independent obligation on the court’s part to decline to enforce the illegal contingency fee contract regardless of what the parties argue. Leisnoi takes the latter position, arguing that the statute’s characterization of contingency fee agreements as unenforceable reflects an intent to protect Alaska Natives and Native corporations from the effects of contingency fee contracts “even if they fail, by incompetence, neglect, mistake or otherwise, to raise the statute as a defense in an action to enforce such agreements.”

We have held that courts have “no power, either in law or equity, to enforce an agreement which directly contravenes a legislative enactment,”[24] and we have affirmed the superior court’s refusal to enforce certain contracts on these grounds in cases where the illegality of a contract was raised by one of the parties.[25] While Alaska case law does not appear to address whether the superior court can or must decline to enforce illegal contracts where illegality is not raised, this issue has been addressed by other authorities. The Restatement First of Contracts provides:

Illegality, if of a serious nature, need not be pleaded. If it appears in evidence the court of its own motion will deny relief to the plaintiff. The defendant cannot waive the defense if he wishes to do so. Indeed, if the court suspects illegality, it may examine witnesses and develop facts not brought out by the parties, and thereby establish illegality that precludes recovery by the plaintiff.[26]

Decisions from other jurisdictions have similarly stated that courts may have an independent obligation not to enforce contracts that are contrary to statute or illegal on public policy grounds.[27] In some cases, courts have drawn a distinction between illegality that is not apparent on the face of the contract (e.g., illegality arising from circumstances outside the four corners of the contract), which they have held must be pleaded as a defense, and illegality that appears in the contract, which need not be pleaded.[28]

Here, the illegality of the contingency fee agreement between Merdes and Leisnoi is “of a serious nature”: The agreement directly violates an important federal statute, the Alaska Native Claims Settlement Act, jeopardizing the Native property interests that 43 U.S.C. § 1621(a) is intended to protect. Under the standards used by most jurisdictions, the fact that Leisnoi did not plead illegality before the Arbitration Panel or the superior court in opposition to Merdes’s 1995 motion to enforce the fee award does not amount to waiver of 43 U.S.C. § 1621(a)‘s prohibition against ANCSA attorney fee contingency contracts. Thus, the entry of judgment constituted a violation of 43 U.S.C. § 1621(a). While Merdes is correct that section 1621(a) does not deprive an arbitration panel or state court of the power to independently award reasonable attorney’s fees, that is not what happened in this case; rather, by entering judgment pursuant to the arbitration award, the superior court enforced a contingency fee contract that is illegal under ANCSA.

3. Writ of execution

This same prohibition on contingency fee contracts pertaining to ANCSA lands and the judgment thereon applied to the superior court’s 2010 issuance of its writ of execution on the illegal judgment. The issuance of the writ of execution violated 43 U.S.C. § 1621(a) just as the 1995 entry of judgment did: This statute provides both that “[n]one . . . of the lands granted by [ANCSA] to the Regional and Village Corporations and to Native groups . . . shall be subject to any contract which is based on a percentage fee of the value of . . . some portion of the settlement granted by this Act” and “[a]ny such contract shall not be enforceable . . . [and] shall not be subject to lien, execution or judgment to fulfill such a contract.” (Emphasis added.)[29]

Just as it was error for the Arbitration Panel to make its fee award and for the superior court to enter judgment on that award in 1995, it was error for the superior court in 2010 to issue an order purporting to authorize Merdes to execute on the illegal judgment. We therefore reverse the court’s order issuing the writ of execution.

C. Leisnoi Was Not Entitled To Relief From Judgment Under Civil Rule 60(b).

Because we hold that the writ of execution was illegally issued, Leisnoi is entitled to recover the balance it paid on the judgment after the writ of execution was issued. However, our discussion does not end here. Leisnoi argues that it is entitled to relief from the 1995 judgment under Civil Rule 60(b), which would entitle Leisnoi to recover all payments made to Merdes following the 1995 entry of judgment. We must therefore determine whether Leisnoi is entitled to relief under Civil Rule 60(b).

Civil Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Leisnoi filed a Civil Rule 60(b) motion in the superior court, arguing that it was entitled to relief pursuant to Rule 60(b)(4) or 60(b)(6) because: (1) the circumstances surrounding the 1995 entry of judgment had changed such that enforcement of the judgment was no longer just or equitable; and (2) the contingency fee contract and the entry of judgment violated 43 U.S.C. § 1621(a), rendering both void. Leisnoi also made several arguments as to why it was not equitable to enforce the judgment because the judgment should have been “considered satisfied with the payments made on the obligation to date,” effectively arguing the superior court should vacate the judgment under Rule 60(b)(5). The superior court denied the motion.

Leisnoi argues on appeal that the Arbitration Panel’s violation of 43 U.S.C. § 1621(a) calls for relief under Rule 60(b)(4) or, alternatively, 60(b)(6), and that the unanticipated duration of the Stratman litigation and Leisnoi’s resulting inability to generate income from its property justify relief under Rule 60(b)(5). Merdes responds that, if Leisnoi had an objection to the judgment against it, there were a number of mechanisms by which it could have directly attacked Merdes’s judgment at various stages of the proceedings (e.g., by moving to vacate the Arbitration Panel’s award, by opposing Merdes’s motion for judgment on the award, or by moving to reconsider the judgment in light of 43 U.S.C. § 1621(a)), rather than waiting 15 years to bring a collateral Rule 60(b) motion. Under the circumstances, Merdes contends, Leisnoi’s Rule 60(b) challenge to the judgment against it was an improper and untimely appeal on the merits, at odds with this court’s emphasis on judicial economy and procedures under the Appellate Rules.

Rule 60(b) provides that a motion for relief from a judgment “shall be made within a reasonable time, and for clauses (1), (2), and (3) not more than one year after date of notice of the judgment or orders.” Leisnoi seeks relief from judgment under Rule 60(b)(4), (5), and (6) only; thus, the one-year time limit does not apply and the time to file the 60(b) motion need only be “reasonable,” at least with respect to clauses (5) and (6).

1. Leisnoi was not entitled to relief under Rule 60(b)(4).

Rule 60(b)(4) provides relief from a void judgment. We have held that “[t]his rule of relief applies without time limitations because a void judgment cannot gain validity simply by the passage of time,”[30] and “even the requirement that the motion be made within a reasonable time, ‘which seems literally to apply to motions under Rule 60(b)(4), cannot be enforced with regard to this class of motion.'”[31] Based on this language, we hold Leisnoi’s Rule 60(b)(4) motion, at least conceptually, is not untimely. The critical question is whether the superior court’s 1995 judgment issued in violation of 43 U.S.C. § 1621(a) was void — and thus amenable to a Rule 60(b)(4) challenge — or merely voidable, and not subject to such a challenge.

Leisnoi argues that its contract with Merdes was illegal under 43 U.S.C. § 1621(a) and therefore void, which in turn renders the judgment entered on the contract void and subject to vacation under Rule 60(b)(4). Leisnoi also contends that, under section 1621(a), “the actual entry of judgment was itself a violation of federal law by the trial court.” Leisnoi acknowledges that this case differs from typical Rule 60(b)(4) cases “in which relief from judgment is appropriate because it is void for lack of jurisdiction.” While conceding that the Arbitration Panel and the superior court had subject matter jurisdiction over the fee dispute, Leisnoi nonetheless claims that those tribunals’ lack of legal authority to enforce the fee contract (because of 43 U.S.C. § 1621(a)) creates a situation analogous to one where the court lacks jurisdiction. Leisnoi also argues that the trial court “usurped power” in entering judgment against Leisnoi.

Merdes responds that Rule 60(b)(4) applies only where the trial court “lacks fundamental jurisdiction” and “usurps its statutory authority to . . . render a decision in the first instance” — which Merdes contends did not occur here. Merdes argues that we and other courts have not found such a lack of jurisdiction even where there were significant irregularities at the trial court level or even where the trial court acted in violation of federal statute.

The superior court in this case concluded that 43 U.S.C. § 1621(a) does not “deprive a state trial court of subject matter jurisdiction to enter judgment [a]ffecting title to ANCSA grant revenues or real property”; the court based this conclusion on the fact that “[t]he Alaska Supreme Court has previously exercised authority to decide whether ANCSA exemptions apply to particular cases and has thus vindicated this court’s jurisdiction to decide such a claim.”

We have held that a judgment is void only where the court that issued it

had no jurisdiction to subject the parties or the subject matter to its control, or where the defendant was not given proper notice of the action and opportunity to be heard, or where the judgment was not rendered by a duly constituted court with competency to render it, or where there was a failure to comply with such requirements as are necessary for the valid exercise of power by the court.[32]
The validity of a Rule 60(b)(4) motion is strictly a question of law.[33] In the interests of finality, the concept of void judgments is narrowly construed.[34]

A judgment is not void merely because it is erroneous.[35] As the U.S. Supreme Court recently observed, “[f]ederal courts considering [identical federal] Rule 60(b)(4) motions that assert a judgment is void because of a jurisdictional defect generally have reserved relief only for the exceptional case in which the court that rendered judgment lacked even an arguable basis for jurisdiction.”[36] The First Circuit characterized the distinction between “total want of jurisdiction” and “an error in the exercise of jurisdiction” as “essential”; only the former will render a judgment void.[37]

We conclude that although entered in error, the 1995 judgment was not void for lack of subject matter jurisdiction. The superior court is the trial court of general jurisdiction, with original jurisdiction over civil matters.[38] It has jurisdiction to confirm an arbitration award and enter judgment pursuant to AS 09.43.110 and AS 09.43.140. Title 43 U.S.C. § 1621(a) does not purport to limit this authority. Unquestionably, the superior court initially had subject matter jurisdiction to determine whether the arbitration award was valid. Leisnoi’s argument can succeed only if the superior court was somehow divested of jurisdiction when it erroneously entered judgment on the award. But as we have explained, an erroneous judgment is not tantamount to a void judgment; the superior court’s entry of judgment, while erroneous, did not render the judgment void or divest the court of jurisdiction.[39] Merdes properly notes that were we to adopt a different rule, “[v]irtually any judgment could be collaterally attacked as void” merely because a trial court issued a ruling in violation of law.

Leisnoi also argues that the trial court “usurped power” in entering judgment against Leisnoi. The “usurpation of power” standard for voidness largely mirrors the subject matter jurisdiction standard: It is to be “rarely and sparingly employed,” with application “limited to cases which involve an arrogation of authority which the court clearly lacks.”[40] “In order to protect the finality of judgments, care must be taken to distinguish between true instances of usurpation of power, and instances where the court has merely committed prejudicial error.”[41]

Our conclusion is the same under the “usurpation of power” standard as under our subject matter jurisdiction analysis: The superior court’s judgment, while entered in error, did not amount to an arrogation of authority. The circumstances do not justify disturbing a judgment that has stood for over 17 years.

The superior court correctly ruled that Leisnoi was not entitled to relief under Rule 60(b)(4).

2. Leisnoi was not entitled to relief under Rule 60(b)(5) or (b)(6).

Unlike Rule 60(b)(4), which applies without time limitations, a Rule 60(b)(5) or 60(b)(6) motion must be made within a “reasonable time.” We have concluded that “as a matter of law, a period of almost seven and one-half years is not a reasonable time within which to file a motion for relief under section (b)(5-6) [of Civil Rule 60].”[42] This holding is consistent with our concern that Rule 60(b) not be considered “a substitute for a party failing to file a timely appeal” or a means of “allow[ing] relitigation of issues that have been resolved by the judgment.”[43]

The superior court found that the reasonable time limitation was not satisfied with regard to Rule 60(b)(6) because Leisnoi failed to offer any excuse “for not seeking to vacate the judgment for fourteen years.” We conclude that the superior court did not abuse its discretion in denying Leisnoi relief. Leisnoi did not challenge the 1995 judgment on the basis of Rule 60(b)(6) until filing its May 2009 Rule 60(b) motion — a period of over 14 years. Leisnoi’s Rule 60(b)(6) motion was untimely, and we need not consider whether relief would otherwise be justified under this clause.

The superior court did not address the timeliness of Leisnoi’s Rule 60(b)(5) motion but instead ruled on the merits, essentially concluding that the equities did not compel granting Rule 60(b)(5) relief. Leisnoi contends that it is entitled to relief under Rule 60(b)(5) because “the fundamental assumptions made by the arbitration panel and . . . the trial court have proven to be so wrong as to have made the continued enforcement of the judgment unconscionable.” Specifically, Leisnoi points to the fact that ongoing litigation with Stratman and the related cloud on title to the corporation’s lands prevented it from generating significant income from its property, even as interest continued to accrue on the judgment. It contends that these circumstances made the land less valuable, such that “the actual value received by Leisnoi has proven to be unconscionably less than that awarded by the arbitration panel.” Merdes responds that Rule 60(b)(5) does not apply to money judgments because they are not deemed prospective. The superior court agreed with Merdes, noting that while “there is no doubt that Leisnoi had wished for a swifter outcome in its favor,” Merdes accepted a case with extremely high risks such that “[t]he interest rate .. . imposed by the Arbitration Award . . . is not extraordinary or outrageous” so as to justify relief under Rule 60(b)(5).

We have held that “clause (5) is typically invoked to obtain relief from declaratory judgments and injunctions whose continued enforcement becomes inequitable. . . . [C]lause (5) is applicable to any judgment having prospective effect.”[44] We have also explained that Rule 60(b)(5) “by definition . . . cannot apply to a judgment that simply offers a present remedy for a past wrong.”[45] In Ferguson v. State, Department of Revenue, we illustrated this difference in the child-support context, noting that “[a] paternity judgment has prospective aspects that can be alleviated under Rule 60(b)(5), because a paternity judgment gives rise to prospective duties, including a duty to pay child support in the future. But each child support payment, as it becomes due, is a final judgment in its own right.”[46] Accordingly, we affirmed the superior court’s judgment, which alleviated only the prospective effects of a vacated paternity judgment.[47] Under this analysis, the amounts already paid by Leisnoi prior to its final payment on the judgment were in response to a past rather than prospective judgment, and therefore not subject to relief under Rule 60(b)(5). Even if Leisnoi still had installments on the judgment outstanding, the judgment could not be considered to have “prospective effect.” The amount awarded by the Arbitration Panel and entered as judgment by the superior court offered a “remedy for a past wrong,” not an ongoing or recurring remedy; the arrangement for payment in installments was merely an accommodation of Leisnoi’s financial situation and did not create prospective duties.[48]

For the foregoing reasons, we conclude that the superior court did not abuse its discretion in denying Leisnoi relief under Rule 60(b)(5) or 60(b)(6).

V. CONCLUSION

To summarize, Leisnoi did not waive its right to appeal because its $643,760 payment to Merdes was involuntarily made in response to the 2010 issuance of the writ of execution. Leisnoi’s contingency fee agreement with Merdes violated ANCSA’s prohibition against contingency fee agreements, as did the Arbitration Panel’s fee award, the superior court’s 1995 entry of judgment, and the 2010 writ of execution. The 1995 entry of judgment was voidable, not void, and Leisnoi was not entitled to relief under Civil Rule 60(b)(4), 60(b)(5), or 60(b)(6). Leisnoi is entitled to recover the balance that it paid after the writ of execution was unlawfully issued, but it is not entitled to recover payments made prior to the issuance of the writ of execution. The amount to be repaid should include interest. Merdes may seek to recover any fees it believes are owed under a theory of quantum meruit.

The superior court’s order issuing a writ of execution on the 1995 judgment is REVERSED. The superior court’s order denying Leisnoi’s Civil Rule 60(b) motion to set aside the 1995 judgment is AFFIRMED.

Daniels v. Chugach Gov’t Servs.

Plaintiff John Daniels (“Mr. Daniels”) is a middle-aged man from Liberia, West Africa. Am. Compl. ¶ 4. A permanent resident of Maryland, Mr. Daniels worked for Defendant Chugach Government Services (“Chugach”) as a Systems Administrator from 2009 until 2011. Id. ¶ 4. In the fall of 2011, Chugach reorganized and Mr. Daniels was laid off. Id. ¶ 5. The position held by Mr. Daniels was combined with the position held by Mr. Daniels’ middle-aged Ethiopian colleague. Id. Mr. Daniels interviewed for the new position, but a younger Caucasian male was hired instead. Id. ¶ 6. Mr. Daniels trained the new hire. Id. ¶ 10. After one month, the new hired was dismissed for poor performance. Id. ¶ 11. Mr. Daniels served as Acting Lead Systems Administrator for approximately four months. Id. ¶ 12. Mr. Daniels was never invited to apply for the permanent position, which was awarded to a younger African American candidate in March 2012. Id. ¶ 10. Based on these events, Mr. Daniels alleges that Chugach discriminated against him based on his national origin, age and race. Id. ¶¶ 10-13. Chugach moves to dismiss Mr. Daniels’ Amended Complaint for failure to state a claim. Def.’s Mot. Dismiss, Docket No. 14. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, Defendant’s Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

A. Chugach Government Services

Chugach is a government contractor based in Alaska. Am. Compl. ¶ 3. Mr. Daniels was employed at Chugach’s Washington, D.C. office. Id. At the time of the events alleged by Mr. Daniels, Chugach was a wholly owned subsidiary of Chugach Alaska Corporation, an Alaska Native Corporation created pursuant to the terms of the Alaska Native Claim Settlement Act (“ANCSA”). Def. Mem. Supp., Docket No. 14 at 7. The Alaska Native Settlement Claim Act of 1971 extinguished all Native claims to Alaskan land based on aboriginal use. Cook Inlet Region, Inc. v. Rude, 690 F.3d 1127, 1129 (9th Cir. 2012). Native Alaskans were compensated monetarily and with title to forty million acres of land. Id. ANCSA transferred title of the settlement land to twelve regional corporations, including the Chugach Alaska Corporation, and other entities created by the Act. Id.; see also United States v. Atl. Richfield Co., 435 F. Supp. 1009, 1020-21 (D. Alaska 1977) aff’d, 612 F.2d 1132 (9th Cir. 1980) (“The intent of Congress in the Settlement Act was to settle the claims of Alaska Natives and to compensate them without deciding the difficult and disputed question of the existence and extent of aboriginal title to Alaska lands.”).

B. Mr. Daniels’ Employment at Chugach

Mr. Daniels was employed by Chugach’s Washington, D.C. office as an IT professional. Am. Compl. ¶ 4. Mr. Daniels’ employment with Chugach began in 2009 as a Systems Administrator. Id. At this time, Mr. Daniels was in his mid-fifties. The Lead Systems Administrator was an Ethiopian male in his sixties. Id. In 2011, Chugach announced a reorganization, including the consolidation of Mr. Daniels’ position with the Lead Systems Administrator position. Id. ¶ 5. Mr. Daniels and his Ethiopian colleague applied for the new position, but Chugach hired a younger Caucasian male. Id. ¶ 6. Mr. Daniels alleges that the new hire did not possess the relevant education or work experience requirements that were posted in the job description. Id. ¶ 7.

Chugach asked Mr. Daniels’ to work in a temporary capacity to assist the Caucasian male’s transition into the newly-created senior IT position. Id. ¶ 10. After one month, the new hire was dismissed from his duties due to behavioral and performance issues. Id. ¶ 11. Chugach asked Mr. Daniels to serve as Acting Senior IT Administrator. Id. Mr. Daniels served in this capacity from approximately November 2011 to February 2012. Id. ¶ 12. In early March, 2012, Mr. Daniels received a letter informing him that his term as Acting Senior IT Administrator was over. Id. Mr. Daniels alleges that he was not invited to apply for the permanent position. Id. The person hired for the permanent position was a “much younger African-American male, who unlike Mr. Daniels or his former supervisor, had no direct African ancestry.” Id. ¶ 13. Chugach invited Mr. Daniels to work as a Substitute Instructor, but with few hours and only minimum wage, Mr. Daniels could not support his family and sought work at Walmart. Id. ¶ 14.

C. Mr. Daniels’ Office of Federal Contract Compliance Program Complaint.

On May 30, 2012, Mr. Daniels filed a complaint with the Office of Federal Contract Compliance Program (“OFCCP”). Id. ¶ 15. Although the OFCCP findings are not attached to Mr. Daniels’ Complaint, he alleges OFFCP concluded that Chugach violated Executive Order 11236 by “hiring the first Caucasian candidate over Mr. Daniels, a more qualified candidate, when the first candidate did not meet the minimum requirements of Senior IT Administrator.” Id.[1] Chugach offered Mr. Daniels $2,287.20 in back pay, an offer rejected by Mr. Daniels as “entirely unsatisfactory.” Id. Mr. Daniels requested a right-to-sue letter from OFCCP and now alleges racial discrimination under Section 1981 (Count I), national origin discrimination under Title VII (Count II), and age discrimination under the Age Discrimination in Employment Act (Count III). Id. ¶¶ 16-18. Mr. Daniels seeks over $700,000.00 in damages, plus pre-judgment and post-judgment interest.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S. App. D.C. 4 (D.C. Cir. 2002). The pleading must contain a “short plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The pleading standard does not require detailed factual allegations, but should be “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678. Naked assertions without factual enhancements or formulaic recitations of the elements of a cause of action will not suffice. Id. Rather, to survive a motion to dismiss, a complaint “must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. Plausibility entails that the plaintiff has pled factual content that is not merely consistent with liability but allows the Court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id.

In considering a 12(b)(6) motion, the Court should liberally view the complaint in the plaintiff’s favor, accepting all factual allegations as true, and giving the plaintiff the benefit of all inferences that can be drawn therefrom. Redding v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276, 305 U.S. App. D.C. 60 (D.C. Cir. 1994)).

III. ANALYSIS

A. Mr. Daniels states a claim for race discrimination under Section 1981.

Chugach argues that Mr. Daniels § 1981 claim for race discrimination fails because it is (1) a national origin claim filed under the pretense of race; (2) time barred under a three-year statute of limitations; and (3) barred based on federal immunity because Chugach is an instrumentality of the federal government. Def.’s Mem. Supp. at 9-14. Mr. Daniels acknowledges that national origin and race claims are distinct, but maintains that he has adequately pled a race discrimination claim under § 1981 because “Chugach was trying to rid its staff of Black Africans, who present a different culture and heritage from those of the unqualified Caucasian candidate Chugach hired——and then fired——before hiring an African American without informing plaintiff of the existence of the reposting of the position.” Pl.’s Mem. Opp. at 5. Mr. Daniels also asserts that a four-year statute of limitations applies and contends that Chugach does not qualify as an instrumentality of the federal government. Id. at 2-5.

1. Mr. Daniels has pled adequate facts to maintain a claim for race discrimination under § 1981.

Section 1981 prohibits racial discrimination in the “making, performance, modification, and termination of contracts” and protects classes of persons from intentional discrimination based on their ancestry or ethnic characteristics. 42 U.S.C. § 1981(a); St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987) (defining race as used in § 1981 as including ancestry and ethnicity claims). To establish a claim under § 1981, a plaintiff must show that (1) he is a member of a racial minority group; (2) the defendant intended to discriminate on the basis of race; and (3) the discrimination pertained to one of the activities enumerated in the statute. Dickerson v. District of Columbia, 806 F. Supp. 2d 116, 119 (D.D.C. 2011). A successful Section 1981 claim alleges discrimination based on ancestry or ethnic characteristics, not country of origin. Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35 (D.D.C. 2008) (“Race and national origin are ‘ideologically distinct categories.'”); see also BARBARA T. LINDEMANN, ET AL., EMPLOYMENT DISCRIMINATION LAW, 6-3, Equal Employment Opportunity Committee Section of Labor and Employment law American Bar Association, 5th ed., V1 (2012) (“Although ancestry can fall within the purview of § 1981, national origin does not.”).

The Supreme Court has “refused to narrowly define the concept of race.” Khair v. Campbell Soup Co., 893 F. Supp. 316 (D.N.J. 1995). As discussed in St. Francis College,

§ 1981, "at a minimum," reaches discrimination against an individual "because he or she is genetically part of an ethnically and physiognomically distinctive group of homo sapiens."
481 U.S. 604 at 613, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987). Here, Mr. Daniels alleges that Chugach sought to "rid its IT department of Black African employees" and "eliminate him due to his black African heritage and ancestry." Compl. ¶ 16. Mr. Daniels alleges that his Ethiopian colleague's position was also terminated through Chugach's reorganization. Am. Compl. ¶ 10. Mr. Daniels also identifies the individuals hired to fill the newly created position as a Caucasian male and an African-American male. Am. Compl. ¶ 11-13. Finally, Mr. Daniels asserts that the OFCCP concluded that Chugach violated Executive Order 11236, which prohibits discrimination based on inter alia, race and color, when it hired the Caucasian male instead of Mr. Daniels because the Caucasian male "did not meet the minimum requirements of the Senior IT Administrator job description." Id. ¶ 15.

“While there may be some overlap between claims based on national origin and claims based on protected status under Section 1981, any potential overlap does not disqualify a Plaintiff from going forward under Section 1981.” Uzoukwu v. Metropolitan Washington Council of Governments, et al., 27 F. Supp. 3d 62, 67 (D.D.C. 2014). The allegation that Chugach hired a white male who did not meet the minimum job requirements is sufficient to state a plausible claim for relief under § 1981. See id. (holding that a Nigerian-American’s claim of race discrimination under § 1981 should be permitted based on alleged incidents where her white colleagues were treated more favorably). In short, a liberal view of Mr. Daniels’ complaint, accepting all factual allegations as true and giving him the benefit of all inferences that can be drawn therefrom, Mr. Daniels has sufficiently stated a claim for racial discrimination under § 1981.

2. A four-year statute of limitations applies to Mr. Daniels’ § 1981 claim.

Chugach also argues that Mr. Daniels’ § 1981 claim is barred by a three-year statute of limitation period. Def.’s Mem. Supp. at 9-10. In Jones v. R.R. Donnelley & Sons Co., the Supreme Court held that “a cause of action ‘aris[es] under an Act of Congress enacted’ after December 1, 1990——and therefore is governed by § 1658’s 4 year-statute of limitations——if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.” 541 U.S. 369, 382, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004). The Civil Rights Act of 1991 expanded the scope of § 1981 claims to include the prohibition of racial discrimination in the making and enforcing of contracts. 42 U.S.C. § 1981 (a); see also Hamilton v. District of Columbia, 852 F. Supp.2d 139, 144 (D.D.C. 2012). Thus, a four-year statute of limitations applies to Mr. Daniels’ claims in this case. Mr. Daniels’ claim was filed on October 6, 2014, and therefore falls within the four-year statute of limitations.

3. Chugach is not an instrumentality of the federal government.

Finally, Chugach argues that because Mr. Daniels brought suit against “Chugach Government Services, Inc. — Potomac Job Corps Center,” his § 1981 claim is barred because the Federal Jobs Corps Center operates under the color of federal law and is therefore immune from suit. Def.’s Mem. Supp. at 13. Mr. Daniels insists that Chugach is not an instrumentality of the federal government, nor was it acting under the color of federal law. Pl.’s Mem. Opp. at 3-4.

Section 1981(c) provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c). Chugach notes that the federal Job Corps Program was created by Congress and is implemented by the U.S. Department of Labor (“DOL”). Def.’s Mem. Supp. at 13. Chugach argues that the length and detail of documents governing Job Corp “demonstrate the high degree of control that the DOL exercises over federal Job Corp Centers.” Id.

Chugach’s immunity under the color of federal law argument goes too far. As noted by Mr. Daniels, the authority cited by Chugach is misplaced, as all cases cited by Chugach involve an actual federal government agency. See, e.g. DynaLantic Corp. v. United States DOD, 885 F. Supp. 2d 237, 291 (D.D.C. 2012) (dismissing § 1981 claim because Defendant Department of Defense is a federal agency, and thus operating under the color of federal law); Williams v. Glickman, 936 F. Supp. 1 at 3 (D.D.C. 1996) (dismissing § 1981 claim based on federal farm loan applications); see also Sindram v. Fox, 374 Fed. Appx. 302, 304 (3d Cir. 2010) (dismissing § 1981 claim because Defendant Department of Education is a federal agency, and thus operating under the color of federal law). Chugach has cited to no authority, and the Court is aware of none, that has deemed a private government contractor as an instrumentality of the federal government or otherwise operating under the color of federal law. Accordingly, Chugach is not immune from suit under § 1981.

For all of these reasons, Chugach’s Motion to dismiss Daniels’ § 1981 claim is DENIED.

B. Mr. Daniels’ Title VII national origin claim fails because Chugach is exempt from the definition of “employer” under Title VII.

Chugach argues that Mr. Daniels’ claim of discrimination based on national origin fails because Chugach was not an “employer” as required under Title VII at the time of the events alleged. Def.’s Mem. Supp. at 4. Rather, Chugach maintains that it was a wholly owned subsidiary of the Chugach Native Association, which qualifies as an Alaska Native Corporation (“ANC”) and is therefore exempt from the definition of employer under Title VII. Id. Mr. Daniels contends Chugach has not established that it was a wholly owned subsidiary during at the time of the events in question, deeming Chugach’s motion as to Count II premature. Pl.’s Mem. Opp., Docket No. 15 at 1-2.

Title VII makes it an unlawful employment practice for “an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.A. § 2000e-2(a)(1). Based on 43 U.S.C. § 1626(g), Courts have routinely held that ANCs are exempt from the definition of employer under Title VII. Fox v. Portico Reality Servs. Office, 739 F. Supp. 2d 912, 919 (E.D. Va. 2010) (holding that 43 U.S.C. § 1626(g) exempts Native Corporations and direct subsidiaries, but not indirect subsidiaries, from the definition of employer under Title VII). 43 U.S.C. § 1626(g) states:

For the purposes of implementation of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000a et seq.], a Native Corporation and corporations, partnerships, joint ventures, trusts, or affiliates in which the Native Corporation owns not less than 25 per centum of the equity shall be within the class of entities excluded from the definition of "employer" by section 701(b)(1) of Public Law 88-352 (78 Stat. 253), as amended [42 U.S.C.A. 2000e(b)(1)], or successor statues.

43 U.S.C. § 1626(g). This statute was passed with the intent to “facilitate Alaska Native Shareholder employment programs by resolving any uncertainty as to the applicability of the Civil Rights Act of 1964 to certain business enterprises in which Native Corporations participate.” Fox, 739 F. Supp. 2d 912 at 919 (citing Sen. Rep. No. 100-201, at 39 (1987)).

In support of its Motion, Chugach submitted to the Court its 2011 and 2013 Biennial Reports, which confirm that ANC Chugach Alaska Corporation owned 100 percent of Chugach from 2009 to 2012, the period relevant to his matter. Def.’s Reply Mem., Docket No. 16, Ex. A. Based on this documentation, the Court is satisfied that Chugach was a wholly owned subsidiary at the time of the alleged discrimination. Chugach is therefore exempt from the definition of employer under Title VII and Mr. Daniels’ claim for discrimination based on national origin fails. Pratt v. Chenega Integrated Systems, Case No. 07-1573, 2007 U.S. Dist. LEXIS 56816, 2007 WL 2177335 at *3 (N.D. Cal. July 27, 2007) (holding that documents showing entity was at least 25 percent owned by a Native Corporation was sufficient to grant motion to dismiss based on entities exemption from Title VII’s definition of employer); see also Aleman v. Chugach Support Services, Inc., 485 F.3d 206, 211 (4th Cir. 2007) (affirming that direct subsidiary of Alaska Native Corporation was exempt from definition of employer under Title VII, but did not extend to claims under Section 1981); Thomas v. Choctaw Management/Services Enter., 313 F.3d 910, 911 (5th Cir. 2002) (affirming District Court’s granting of Defendant’s Motion to Dismiss because, inter alia, Indian Tribes are exempt from the definition of employer under Title VII).

For all of these reasons, Chugach’s Motion to Dismiss Mr. Daniel’s Title VII national origin discrimination claim is GRANTED.

D. Mr. Daniels’ Age Discrimination claim fails because he did not properly exhaust his administrative remedies through the EEOC.

Chugach argues that Mr. Daniels’ age discrimination claim is barred as a matter of law because he failed to exhaust his administrative remedies through the EEOC. Def.’s Mem. Supp. at 8. Mr. Daniels maintains that his OFCCD complaint satisfies exhaustion of his age discrimination claim. Pl.’s Mem. Opp. at 6.

Before bringing suit under the ADEA, plaintiffs must exhaust their administrative remedies. 29 U.S.C. § 626(d)(1). Doing so requires filing a charge with the EEOC within 180 days after the alleged unlawful practice occurred. Id.; see also Washington v. Washington Metropolitan Area Transit Authority, 160 F.3d 750, 752, 333 U.S. App. D.C. 121 (D.C. Cir. 1998). Here, Mr. Daniels does not dispute that he failed to file a charge with the EEOC; rather, he argues that his OFCCD complaint is sufficient to exhaust all administrative remedies related to his age discrimination claim. Pl.’s Mem. Opp. at 6.

In support of his argument, Mr. Daniels points to a November 2011 Memorandum of Understanding (“MOU”) between the Equal Employment Opportunity Commission (EEOC) and OFCCP, which states that “all complaints/charges of employment discrimination filed with OFCCP alleging a Title VII basis (race, color, religion, sex, national origin, or retaliation) shall be received as complaints/charges simultaneously dual-filed under Title VII.” EEOC, 76 Fed. Reg. 71029-32 (Nov. 16, 2011). Mr. Daniels acknowledges that discrimination on the basis of age is not mentioned in the MOU, but argues that “it makes little sense for a complainant to have the burden of filing two separate complaints with the EEOC for age discrimination and with OFCCP for Title VII violations when the discrimination alleged arises from the same operative actions undertaken by the government contractor.” Pl.’s Mem. Opp. at 6. Mr. Daniels also represents that the EEOC directed him to assert all of his claims with the OFCCP. Id. at 7. Finally, in large part conceding that his age discrimination claim should have been exhausted through the EEOC, Mr. Daniels requests that the Court equitably toll the time necessary to allow Mr. Daniels to properly exhaust his age discrimination claim through the EEOC. Id.

Mr. Daniels cannot exhaust his age discrimination through the OFCCP for three principle reasons. First, the plain language of the MOU does not mention age discrimination claims. EEOC, 76 Fed. Reg. 71029-32 (Nov. 16, 2011). Second, the MOU applies to discrimination claims alleging a Title VII basis. Id. (emphasis added). Here, Mr. Daniels alleges his age discrimination claim under ADEA. Am. Compl., Count III (“VIOLATION OF ADEA FOR DISCRIMINATION ON THE BASIS OF AGE”). Third, case law supports the conclusion that Mr. Daniels’ OFCCP complaint does not satisfy the requirement of filing a charge with the EEOC. Granger v. Aaron’s Inc., Case No. 09-1634, 2010 U.S. Dist. LEXIS 58471, 2010 WL 2464832, at *4 (W.D. La June 14, 2010) aff’d, 636 F.3d 708 (5th Cir. 2011) (holding that a complaint filed with the OFCCP, over which the OFCCP has no jurisdiction, cannot be considered a dual-filed complaint under the provisions of an MOU); see also Meckes v. Reynolds Metals Co., 604 F. Supp. 598, 601 (N.D. Ala. 1985) (holding that because OFCCP was never a proper place to file any kind of age discrimination claim, plaintiff’s OFCCP charge of age discrimination was not a ‘filing’ of an ADEA charge and could not constitute a ‘joint’ filing with EEOC under the Memorandum).

Mr. Daniels argument that equitable tolling should be applied so that he may timely file an age discrimination complaint with the EEOC is equally without merit. The courts equitable tolling power “will be exercised only in extraordinary and carefully circumscribed instances.” Washington v. Washington Metro, 160 F.3d 750, 752, 333 U.S. App. D.C. 121 (D.C. Cir. 1998). Equitable tolling does not extend to “what is at best, a garden variety of excusable neglect.” Id. (citing Irwin v. Dep’t. of Veteran Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)).

Here, the statement Mr. Daniels’ submitted with his OFCCP complaint does not mention an allegation of age discrimination. Def.’s Mem. Supp., Ex. 4. Only in his complaint, filed two years after the alleged discriminatory events, does Mr. Daniels allege an age discrimination claim. Compl., Docket No. 1 at 8. These facts strongly suggest that Mr. Daniels did not timely seek to exhaust is administrative remedies on his age discrimination claim under the ADEA. Moreover, although Mr. Daniels claims that the EEOC advised him to file all charges with the OFCCP, Mr. Daniels does not allege that Chugach engaged in any misconduct designed to mislead Mr. Daniels about when his claim should be filed, or otherwise induce him to miss the filing deadline. See Irwin, 498 U.S. 89 at 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (“We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.”).

For all of these reasons, Chugach’s Motion to Dismiss Mr. Daniels’ age discrimination claim under the ADEA is GRANTED.

IV. CONCLUSION

After consideration of the motion, the response and reply thereto, the applicable law, and the entire record, for the reasons discussed in this Memorandum, Defendant’s Motion is GRANTED in part and DENIED in part. An appropriate order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Court Judge
March 7, 2016
Signed: Emmet G. Sullivan
United States District Court Judge
March 7, 2016

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp. 3d.]

ORDER
For the reasons stated in the accompanying Memorandum Opinion issued this same day, it is hereby

ORDERED Defendant's Motion is GRANTED in part and DENIED in part, as follows:
1. Chugach's Motion to dismiss Daniels' § 1981 claim is DENIED;
2. Chugach's Motion to Dismiss Mr. Daniel's Title VII national origin discrimination claim is GRANTED; and
3. Chugach's Motion to Dismiss Mr. Daniels' age discrimination claim under the ADEA is GRANTED.
SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

March 7, 2016

Balli v. Akima Global Servs., LLC

Order Adopting Magistrate Judge’s Report and Recommendation

Before the Court are “Magistrate Judge’s Report and Recommendation” (“R&R”) (Dkt. No. 14), Plaintiff’s “Objections to the U.S. Magistrate Judge’s and Recommendations Issued on September 12, 2023” (“Objections”) (Dkt. No. 15), and Defendant’s “Response to Plaintiff’s Objections to Magistrate’s Report and Recommendations (“Response”) (Dkt. No. 16). The R&R recommends (1) granting Defendant’s Motion to Dismiss (Dkt. No. 5); (2) dismissing with prejudice Plaintiff’s claims; and (3) directing the Clerk of Court to close this case.

I. Background and Procedural History 

In October 2019, Plaintiff began her employment with Defendant as an Aviation Security Officer. Dkt. No. 1. Defendant is a subsidiary of Akima, LLC which in turn is owned by NANA Regional Corporation, an Alaska Native Corporation. See Dkt. No. 5. In February 2022, Defendant terminated Plaintiff’s employment. Dkt. No. 1 at 1. Plaintiff filed a discrimination complaint with the United States Equal Employment Opportunity Commission (“EEOC”). Id. In her complaint, Plaintiff alleged gender discrimination, retaliation, and a hostile work environment. Id. The EEOC dismissed the charge citing jurisdictional limitations over cases involving private membership clubs or tribal entities. Dkt. No. 1-1 at 7.

Plaintiff filed her Complaint (Dkt. No. 1), asserting that Defendant violated Title VII of the Civil Rights Act of 1964 by fostering a discriminatory work environment. Dkt. No. 1 at 8. Plaintiff claims that Defendant allowed supervisors and managers to discriminate and retaliate based on her Mexican American identity and prior engagement in protected activity: filing a discrimination complaint with the Texas Workforce Commission Civil Rights Division. Id.

Defendant filed its “Motion to Dismiss and Incorporated Memorandum in Support” (“MTD”) (Dkt. No. 5) invoking the Alaska Native Claims Settlement Act, which exempts it from the definition of an “employer” under Title VII. Dkt. No. 5 at 3-5; 43 U.S.C. § 1626(g). Plaintiff filed her “Response to Defendant’s Reply in Support of its Motion to Dismiss” (“Response to MTD”) (Dkt. No. 11) in which she argued that while she agrees that Defendant as a Native American entity is exempted from Title VII, Defendant waived its sovereign immunity due to its advertisements as an equal employment opportunity employer and the inclusion of an anti-discrimination clause in its collective bargaining agreement with the Security Police and Fire Professionals of America union (“SPFPA”), which also incorporates an arbitration provision. Dkt. No.8 at 5, 8-1 at 7, 21-22.

Defendant filed its “Reply in Support of Motion to Dismiss” (“Defendant’s Reply”) (Dkt. No. 9) and emphasized that their MTD (Dkt. No. 5) did not pertain to sovereign immunity but the inapplicability of Title VII. Plaintiff then filed her “Response to Defendant’s Reply in Support of its Motion to Dismiss” (“Plaintiff’s Sur-reply”) (Dkt. No. 11) maintaining that the inclusion of an arbitration provision in the CBA waived AGS’s immunity under Title VII.

The Magistrate’s R&R recommends granting Defendant’s MTD (Dkt. No. 5). Dkt. No. 14. Plaintiff objected to the R&R, Dkt. No. 15, and Defendant replied, Dkt. No. 16.

II. Discussion

A party may contest the proposed findings and conclusions in a report and recommendation by filing written objections within fourteen days of being served with a copy of the report and recommendation. See 28 U.S.C. § 636(b)(1). A party’s objections to portions of a report and recommendation entitle him to de novo review by the Court. See 28 U.S.C. § 636(b)(1). Objections must specifically identify findings or recommendations in the R&R. The Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comnen, 834 F.2d 419, 421 (5th Cir. 1987).

Under Title VII it is an unlawful practice for “an employer (1) … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C.A. § 2000e-2. It is also unlawful for an employer to discriminate against an employee “because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a).

For purposes of Title VII, an employer is “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” Id. § 2000e(b). Excluded from the definition of “employer” under Title VII, are “Native Corporation and corporations, partnerships, joint ventures, trusts, or affiliates in which the Native Corporation owns not less than 25 per centum of the equity[.]” 43 U.S.C. § 1626(g). Title VII thus does not apply to Defendant, who is an Alaska Native Corporation.

Plaintiff’s objections are the same as the arguments raised in her “Response to MTD” (Dkt. No. 8) and “Plaintiff’s Sur-reply” (Dkt. No. 11). Dkt. No. 15. Plaintiff reiterates her argument that although Defendant is a Native American entity/ company and is exempt as an employer under 42 USC Sec. 12111(5)(B)(i), “a sovereign such as a Native American Tribe and/or the U.S. Government and all its entities may opt out of the definition of an employer as cited at Title 42 USC Sec. 12111(5)(B)(i).” Dkt. No. 15 at 5. Plaintiff thus argues Defendant waived its exemption as an employer under 42 USC Sec. 12111(5)(B)(i) by “engaging in arbitration agreement with the employees’ International Union SPFPA…{1” Id.

In support of her argument Plaintiff names, but does not discuss, the following Supreme Court cases: C&L Enterprises, Inc. v. Citizen Band Potowatomi Tribe of Oklahoma at 532 U.S. 411 (2001) and Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc, 532 U.S. 751 (1998). Dkt. No. 15 at 6. The Court finds that both cases are inapplicable here. In C&L Enterprises, Inc., the Supreme Court held that by including arbitration provisions in a contract, a federally recognized Indian Tribe waived its sovereign immunity against suits to enforce arbitration awards. In Kiowa the Supreme Court ruled that a federally recognized Indian Tribe was entitled to sovereign immunity in a commercial suit against them.

Defendant never raised the issue of sovereign immunity. Defendant is also not a federally recognized Indian Tribe, it is an Alaska Native Corporation which is not a federally recognized tribe in a sovereign political sense. Plaintiff cites no case law to support her argument that an Alaska Native Corporation such as the Defendant is entitled to sovereign immunity. “Alaska Native Corporations and their subsidiaries are not comparable sovereign entities [to Alaska Native Tribes], see Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32, 34 (Alaska 1988) (reviewing differences between Alaska Native groups and Indian tribes and holding most Alaska native groups lack immunity from suit because they are “not self-governing or in any meaningful sense sovereign”); see also Seldovia Native Ass’n v. Lujan, 904 F.2d 1335, 1350 (9th Cir.1990) (holding that Alaska Native Village Corporation “does not meet one of the basic criteria of an Indian tribe” because it “is not a governing body”) Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 213 (4th Cir. 2007).

Thus, the Defendant has no sovereign immunity it can waive. Even if the Defendant were protected by sovereign immunity, it could not waive it here. As the R&R analyzed, exemptions to Title VII cannot be waived. “Congress clearly intended to exempt…ANCs from the definition of “employer” under Title VII. 43 U.S.C.A. § 1626(g). [A] party thus designated cannot waive a statutory exemption or create subject matter jurisdiction.” Pratt v. Chenega Integrated Sys., No. C 07-01573 JSW, 2007 U.S. Dist. LEXIS 56816, 2007 WL 2177335, at *4 (N.D. Cal. July 27, 2007). The R&R properly analyzes cases in which federal courts, facing the same or similar arguments Plaintiff seeks to make, have determined that it is impossible to waive an institution’s exclusion from Title VII. See Dkt. No. 14 at 8-10. Plaintiff cites no case law holding the contrary. Thus, Plaintiff’s objections are OVERRULED.

III. Conclusion 

For all the reasons stated, the R&R (Dkt. No. 14) is ADOPTED. Defendant’s MTD (Dkt. No. 5) is GRANTED. Plaintiff’s claims against Defendant are DISMISSED with prejudice. The Clerk of Court is ORDERED to close this case.

Signed on this 26th day of October, 2023.

/s/ Rolando Olvera

Rolando Olvera

United States District Judge

Boy Dexter Ogle vs. Salamatof Native Association, Inc.

Boy Dexter Ogle (“Ogle”) sues Salamatof Native Association, Inc. (“Salamatof”) in equity for specific performance of a federal statutory duty to reconvey land claimed pursuant to 43 U.S.C. § 1613(c). In addition, Ogle seeks damages based upon supplemental state claims. This Court has jurisdiction over the reconveyance claim pursuant to 28 U.S.C. § 1331 and jurisdiction over the supplemental claims pursuant to 28 U.S.C. § 1367.[1]

Salamatof seeks dismissal pursuant to 43 U.S.C. § 1632(b). Docket Nos. 15 & 21. Salamatof contends that Ogle failed to commence this action within one year of the filing of the map of boundaries, and thereby lost his right to sue. Id. The motion is opposed. Docket No. 18. Ogle argues that he was not given sufficient notice of Salamatof’s actions regarding his claim to satisfy due process. Id. Both parties request oral argument. Docket Nos. 22 & 23. However, the record has been fully developed and oral argument would not be helpful. D. Ak. LR 7.1(i); see United States v. Cheely, 814 F. Supp. 1430, 1436 n.2 (D. Alaska 1992).

The Court has reviewed the record and concludes that the motion to dismiss should be denied in part and granted in part. Ogle has no viable state claim against Salamatof and his supplemental claims will be dismissed. On the other hand, the existing record leaves open the possibility that Ogle did not receive notice of certain significant events in a manner conforming to due process. If, after a full development of the facts, Ogle establishes that due process was violated, he may be entitled to a judicial remedy. Constitutional due process assures Ogle of notice at two significant stages: First, when the village corporation is preparing its map and considering claims for reconveyance; and second, after the village corporation has considered the claims for reconveyance and proceeds to file its map with the Department of the Interior. The filing of the map effectively announces the village corporation’s ruling on claims of reconveyance. Further proceedings will be necessary to determine whether Ogle had actual, inquiry, or constructive notice at each of these crucial points in the determination of his claim. See 58 Am. Jur. 2d, Notice §§ 5-6, 9, & 15 (1989).[2]

Actual notice has been said to be of two kinds: (1) express, which includes direct information, and (2) implied, which is inferred from the fact that the person charged had means of knowledge which it was his duty to use. 58 Am. Jur. 2d, Notice § 6. Thus, notice is regarded in law as actual where the person sought to be charged therewith either knows of the existence of the particular facts in question or is conscious of having the means of knowing it, even though such means may not be employed by him or her. See Perry v. O’Donnell, 749 F.2d 1346, 1351 (9th Cir. 1984). Similar to implied actual notice is constructive notice. 58 Am. Jur. 2d, Notice § 7. Constructive notice is a legal inference or a legal presumption of notice which may not be disputed or controverted. See Butte & Superior Copper Co. v. Clark- Montana Realty Co., 249 U.S. 12, 63 L. Ed. 447, 39 S. Ct. 231 (1919); Hotch v. United States, 14 Alaska 594, 212 F.2d 280 (9th Cir. 1954). The importance of the classification of notice of this character arises from the fact that constructive notice is a legal inference, while implied actual notice is an inference of fact. 58 Am. Jur. 2d, Notice § 7. Finally, the closely related concept of inquiry notice exists where a person has knowledge of such facts as would lead a fair and prudent person using ordinary care to make further inquiries. Shacket v. Roger Smith Aircraft Sales, Inc., 651 F. Supp. 675, 690 (N.D. Ill. 1986), aff’d, 841 F.2d 166 (7th Cir. 1988); see discussion at 58 Am. Jur. 2d, Notice §§ 6 & 15 (creating a third type of notice which resembles both constructive and actual notice). Under this theory, a person who fails to diligently inquire is charged with knowledge that would have been required through such inquiry. 58 Am. Jur. 2d, Notice, § 15.

DISCUSSION

I. Background

Central to this case is the Fifth Amendment to the United States Constitution, which provides in relevant part: “No person shall . . . be deprived . . . of property, without due process of law; . . . ‘ This provision acts as a limitation on actions by the United States Government.[3] The phrase “due process of law,” which also occurs in the Fourteenth Amendment to the Constitution as a limitation on actions by the states, encompasses two general ideas: the protection of substantive rights (substantive due process) and the protection of procedural fairness (procedural due process). See Zinermon v. Burch, 494 U.S. 113, 125-28, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990).[4] In this case, we are concerned with procedural due process. Specifically, where it is assumed for the purposes of argument that an Alaska Native has used a parcel of land as a primary residence, a primary place of business, or a subsistence campsite, thereby earning a right to reconveyance under 43 U.S.C. § 1613(c)(1), the Court must determine what process is due before that right to reconveyance may be extinguished.[5]

In context, due process normally requires notice and an opportunity to be heard. Thus, where any proceeding will finally determine a person’s property rights, he is entitled to notice reasonably calculated, under all of the circumstances, to apprise him of the pendency of the proceeding and an opportunity to present his claim or objections. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988). What is “reasonable notice” depends upon all the circumstances and requires a delicate balancing of the people’s interest in a final resolution of disputes and the claimant’s right to protect his property. Id.; see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983); Texaco, Inc. v. Short, 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Actual notice is required as a precondition to a proceeding which will adversely affect the property interests of any party if its name and address are reasonably ascertainable. Tulsa, 485 U.S. at 485. In determining whether the name and address of a claimant is “reasonably ascertainable,” the party having the duty to give notice need only exercise “reasonably diligent efforts” to discover the claim. Id.

In order to resolve this case, we must therefore decide a number of questions: First, whether Salamatof’s role in evaluating and determining section 14(c) claims makes it a federal actor for the purposes of Fifth Amendment analysis; second, whether Salamatof’s actions in developing a map addressing and resolving section 14(c) claims constitutes a “proceeding” which requires notice; third, if a proceeding is contemplated, whether the village corporations must afford section 14(c) claimants, like Ogle, a particular type of “hearing” in order to evaluate their 14(c) claims;[6] and fourth, whether additional notice should have been given to Ogle of the village’s filing of the map and the need to seek judicial review within a definite period or forever be barred from any judicial relief. In order to address these issues in context, it is necessary to review the applicable provisions of the Alaska Native Claims Settlement Act (“ANCSA“).

The United States Congress enacted ANCSA in 1971. 43 U.S.C. §§ 1601-1629(a) (1995). ANCSA extinguished the Native people of Alaska’s claims to aboriginal land title, and in return federal lands and other consideration were transferred to Alaska Natives. In order to accomplish this purpose, the United States Congress created regional and village corporations that were intended to receive the lands conveyed.

Included in ANCSA are a number of provisions designed to protect the rights of those with existing rights to land conveyed under ANCSA. Existing leases, homesteads, mining claims, and similar sites are protected. See 43 U.S.C. §§ 1613(g), 1621(b), 1621(c). Another provision, commonly known as section 14(c), requires the conveyance of lands by the village corporation to individuals on the basis of their occupancy for a particular purpose rather than their common law property rights. See 43 U.S.C. § 1613(c). The uses deemed sufficient to give rise to such a claim include claims that the property was a primary place of residence, a primary place of business, or a subsistence campsite. 43 U.S.C. § 1613(c)(1).

To facilitate the transfer of section 14(c) properties to lawful claimants, the Secretary of the Interior enacted regulations requiring the survey of the lands claimed by the villages. See 43 C.F.R. § 2650.5-4. This regulation requires village corporations to file a map delineating its land selections, including tracts that are to be reconveyed under section 14(c). Id. The map is then used by the Bureau of Land Management (“BLM”) as a “plan of survey.”Section 2650.5-4 provides, in pertinent part:

§ 2650.5-4 Village Surveys. (a) Only the exterior boundaries of contiguous entitlements for each village corporation will be surveyed . . . (b) Surveys will be made within the village corporation selections to delineate those tracts required by law to be conveyed by the village corporations pursuant to section 14(c) of the Act. (c) (1) The boundaries of the tracts described in paragraph (b) of this section shall be posted on the ground and shown on a map which has been approved in writing by the affected village corporation and submitted to the Bureau of Land Management. Conflicts arising among potential transferees identified in section 14(c) of the Act, or between the village corporation and such transferees will be resolved prior to submission of the map.

          (2) . . . No surveys shall begin prior to final written approval of the map by the village corporation and the Bureau of Land Management. After such written approval, the map will constitute a plan of survey. No further changes will be made to accommodate additional section 14(c) transferees, and no additional survey work desired by the village corporation or municipality within the area covered by the plan of survey or immediately adjacent thereto will be performed by the Secretary.

43 C.F.R. § 2650.5-4.

The BLM accepted and approved the filing of Salamatof’s map of boundaries on May 14, 1993. Section 1632(b) provides: Decisions made by a Village Corporation to reconvey land under section 14(c) of the Alaska Native Claims Settlement Act [43 U.S.C.A. § 1613(c)] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary. 43 U.S.C. § 1632(b). It is undisputed that the § 1632(b) limitations period expired on May 14, 1994, and that Ogle did not make a claim under section 14(c) within the allotted one year period. However, 43 C.F.R. § 2650.5-4 indicates that the determination of section 14(c) claims is a matter left to the village corporations to resolve.[7] In order to resolve disputes, the village must establish a procedure to identify potential 14(c) claimants and consider their claims. Section 14(c) therefore contemplates that the village corporations will provide reasonable notice to 14(c) claimants both prior to and after filing their map of boundaries with the Department of the Interior. Notice prior to the filing is necessary in order to assure that bona fide claims are recognized in the map, and notice subsequent to the filing of the map is necessary to insure that those whose claims are denied are alerted to their right to judicial review.

Unfortunately, neither ANCSA nor the regulations provide the village with explicit directions regarding the types of notice that must be given by village corporations.[8] Prior to filing their map of boundaries, Salamatof published notice of its reconveyance program under section 14(c) in The Peninsula Clarion for fourteen days and in the Tundra Times in five consecutive weekly issues in 1986. In addition, Salamatof gave a similar notice to its shareholders in a newsletter that it published. After filing its map of boundaries with the Department of the Interior, Salamatof made no further efforts to notify potential 14(c) claimants, though the Department of the Interior adopted a policy whereby it published notice for a single day in two newspapers, and also sent notice for posting in the Kenai Post Office.[9]

In their briefs, neither party provides the Court with a map detailing the relationship between the land to which Ogle asserts his reconveyance rights and the primary location of Salamatof Native Association. Where the land in issue is in the vicinity of the village and all claimants use the village as a base of operations to get mail and supplies and travel to and from the outside, notice posted in the post office or general store may be sufficient if it is coupled with personal notice to those known to the village members. When the land in question may have no historical or geographical connection with the village, and claimants may have no reason to regularly visit the village, notices posted in the village may have no likelihood of reaching claimants. By the same token, claimants might not associate the land they claim with a village which might be far away. Of course, where the village has no past association with or even easy access to the land affected, its burden of discovering potential claimants and giving them notice is increased.

II. Constitutional Due Process

Congress is generally under no obligation to create a property right in any private individual or group. Where, however, Congress creates rights, as it did in the case of 14(c) claimants, the government must make reasonable efforts to alert the possessor of such rights to the risk of loss. The administration of Native land claims is a power traditionally exclusively reserved to the government. When Congress and the Secretary delegated to Salamatof initial responsibility to resolve section 14(c) claims, it became an instrument of the federal government, obligated under the Fifth Amendment to give adequate notice before depriving anyone of his or her property rights. See Arnett v. Kennedy, 416 U.S. 134, 167, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974), reh’g denied, 417 U.S. 977, 41 L. Ed. 2d 1148, 94 S. Ct. 3187 (1974); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); McGraw v. City of Huntington Beach, 882 F.2d 384, 389 (9th Cir. 1989);Dorr v. Butte County, 795 F.2d 875, 877 (9th Cir. 1986).In Loudermill, the Court stated:

The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. . . . The right to due process ‘is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest . . . it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.’

470 U.S. at 541. In the absence of proceedings that comport with due process, the property rights that Congress granted to 14(c) claimants through ANCSA would be rendered meaningless.

Prior to an action which will affect an interest in property protected by the Due Process Clause of the Fourteenth Amendment, a government actor must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. Elaborating upon the principle announced in Mullane, the Supreme Court has more recently held that notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, if the party’s name and address are reasonably ascertainable. Mennonite, 462 U.S. at 800.

The Court cannot yet determine whether Ogle’s identity as a 14(c) claimant was known or reasonably ascertainable. Further briefing from the parties will be required to determine whether “reasonably diligent efforts” would have identified Ogle and revealed his claim. Tulsa, 485 U.S. at 485. Ogle’s repeated notification to Salamatof of his ongoing allotment dispute with the BLM may be relevant to this analysis.[10] Both parties should analyze whether Ogle was provided with actual notice, constructive notice, or notice of facts that would have put him on inquiry notice of the need to file his claim. If the Department of the Interior gave Ogle actual notice of the official filing date and the running of the one- year statute of limitations, then the village’s failure to give actual notice may have been harmless error.

Particularly extensive efforts to provide effective notice may often be required when the government is aware of a party’s inexperience or incompetence. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978).[11] Phrased another way, “When notice is a person’s due, process which is a mere gesture is not due process.” Mullane, 339 U.S. at 315. Questions as to the form that notice must take are distinct from the question of whether service must be personal, by mail, or by publication.

III. Salamatof had no Fiduciary or Trust Duty to Ogle

Section 14(c) requires village corporations, upon receipt of a patent, to “first convey” to any Native or non-Native occupants title to the tract they occupied on December 18, 1971. 43 U.S.C. § 1613(c). Ogle claims that this created a trust, under which village corporations received and held title to section 14(c) lands for the benefit of section 14(c) claimants. Ogle ignores the ruling of the court in Lee v. United States, 629 F. Supp. 721, 728 (D. Alaska 1985). In Lee, the court stated that ANCSA‘s language, structure, and legislative history all demonstrate that Congress intended to provide a “comprehensive and final resolution of all issues relating to Native land claims in Alaska.” Lee, 629 F. Supp. at 728. The court expressly found that common law remedies, such as a constructive trust theory, were nothing more than an attempt to alter the comprehensive legislative scheme adopted by Congress. Id. at 729. Ogle and Salamatof are adversaries, not fiduciaries. The court’s holding in Lee makes clear that a trust will not be created by implication.

IV. There is no Monetary Claim for Breach of 14(c)

Ogle also contends that even if the statute of limitations is determined to constitute an absolute bar to Ogle’s section 14(c) claim, Ogle still has a cause of action against Salamatof for the wrongful loss of his section 14(c) claim. Ogle’s argument runs contrary to the express purpose and intent of ANCSA to promptly resolve claims without litigation. 43 U.S.C. § 1601. Again, turning to Lee and its stance on the creation of common law surrounding ANCSA, this cause of action does not fill a gap, but rather, creates a new and unwarranted cause of action. This Court refuses to imply or create a cause of action on the part of a 14(c) claimant against an ANCSA corporation.

CONCLUSION

Ideally, potential section 14(c) claimants would be notified of their property interest by the village corporation during the village corporation’s survey of its lands. The 14(c) claimant and the village corporation would seek informal resolution of the claim, and if resolution at the village level was unsuccessful, seek judicial review in the short time permitted after filing the map of boundaries. Salamatof’s filing of the map of boundaries is most properly viewed as the village’s last and final decision regarding pending claims. The filing would properly trigger petitions for judicial review by anyone whose claim was not honored. Salamatof is an Alaska business organized for profit and is not an impartial agency. There is no basis for according a special level of deference, such as applying an arbitrary and capricious standard, to decisions made by the village corporation. Judicial review must be de novo.

Thus, there are two points at which notice is required to comport with due process: (1) at the time the village is finalizing its land selections and preparing its map, so that claims may be made and if possible informally resolved; and (2) after filing its map in order to trigger the statute of limitations. The Court cannot yet decide whether Ogle received the notice that was due from Salamatof prior to its filing the map of boundaries with the Department of the Interior. Nor can the Court yet determine whether the notice afforded by the Department of the Interior alerted Ogle to the running of the one-year statute of limitations. At a minimum, the Court will require further briefing from the parties. It is possible that a factual hearing will eventually be necessary.

          IT IS THEREFORE ORDERED:

The motion to dismiss at Docket No. 15 is DENIED IN PART AND GRANTED IN PART. Ogle’s state claims are dismissed with prejudice. His federal due process claims require further proceedings. The requests for oral argument at Docket Nos. 22 & 23 are DENIED.

Conitz vs. Teck Alaska Incorporated

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the Court are Plaintiff Gregg Conitz and Defendant Teck Alaska Incorporated (“Teck”) with what amount to cross-motions for summary judgment. At Docket 49, Conitz requests a permanent injunction against Teck’s shareholder employment preference on the grounds that it violates Title VII of the Civil Rights Act. The issuance of such an injunction would require this Court to essentially dispose of all the legal issues presented in this case, so the Court will treat it as a motion for summary judgment. Teck files its own motion for summary judgment at Docket 57, arguing that the shareholder preference does not violate Title VII and that, in any event, Conitz has no standing to make a Title VII claim because he was not qualified for the promotion which he sought in 2008.

Having reviewed the voluminous briefs submitted by the parties, the Court concludes that oral argument is neither necessary nor warranted.

II. BACKGROUND

Conitz is a Teck employee working at the Red Dog mine, which Teck operates in cooperation with co-Defendant NANA Regional Corporation (“NANA”), an Alaska Native corporation created under the Alaska Native Claims Settlement Act of 1971 (ANCSA). Conitz claims that he has been continually passed over for promotion because of Teck’s policy of favoring NANA shareholders in hiring. According to Conitz, the policy is racially discriminatory because the vast majority of NANA shareholders are Alaska Natives. According to the Shareholder Records Manager for NANA, out of 12,264 total shareholders, there are 69 who are not Alaska Natives who have obtained shares through inheritance.[1]

This suit is Conitz’s second attempt to invalidate Teck’s shareholder employment preference. In Conitz v. Teck Cominco Alaska Inc., 4:06-cv-00015-RRB (“Conitz I”), this Court granted summary judgment to Teck on two independent grounds. The Court held that Conitz could not claim discrimination in hiring because he was not qualified for the positions for which he had applied, and because Teck’s employment preference for shareholders of the NANA Regional Corporation (“NANA”) was not a racial preference.[2] The Ninth Circuit affirmed the Court’s decision with regard to Conitz’s qualifications, but did not address whether shareholder preference constitutes racial discrimination.[3]

In this case, Conitz again alleges that he was discriminated against on July 25, 2008, when he was passed over for a promotion to the position of Mine Operations Supervisor in favor of Charles Barger, an Alaska Native/NANA Shareholder.[4] Conitz claims that he was more qualified for the management position than was Barger, an assertion which his supervisors at Teck strenuously deny.

III. RULE OF DECISION

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.[5] The moving party always bears the burden of demonstrating the absence of a material issue of fact.[6] The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact.[7] Once the moving party meets this burden, the non-moving party must set forth evidence of specific facts showing the existence of a genuine issue of material fact.[8] All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant.[9]

IV. DISCUSSION

To establish a prima facie case for racial discrimination under Title VII, “the complainant must show that (1) the complainant belongs to a protected class; (2) the complainant applied for and was qualified for a job for which the employer was seeking applications; (3) the complainant was rejected despite the complainant’s qualifications; and (4) after the complainant’s rejection, the position remained open and the employer continued seeking applications from persons with the complainant’s qualifications.”[10] “[I]f an employer has not left the disputed position open and has instead hired someone else, the fourth element of the prima facie case is the hiring of an individual not within the same protected class as the complainant.”[11]

Conitz’s claims are fairly simple. Conitz argues that the shareholder preference amounts to racial discrimination because nearly all of NANA’s shareholders are Alaska Natives and he is Caucasian. Teck puts forth a number of arguments as to why Conitz has failed to make a prima facie case for racial discrimination. The Court will first discuss Teck’s arguments with regard to the legality of the shareholder preference and then address Conitz’s qualifications for the specific promotion which is the basis of this litigation.

A. The Shareholder Preference Is Not Racially Discriminatory

In Conitz I, this Court held that the shareholder preference “is based on the permissible distinction of shareholder status rather than race.”[12] The Court cited Morton v. Mancari, 417 U.S. 535 (1974), in which the Supreme Court ruled that a Bureau of Indian Affairs hiring preference for members of Indian tribes was “political rather than racial in nature.”[13]

The Court notes that Mancari is not a perfect analogue for this case, since it involved governmental action, whereas this case concerns the actions of a private employer. However, Mancari was cited for the proposition that distinctions based on non-racial categories do not trigger Title VII liability simply because they are related to national ancestry.[14]

As in Conitz I, the Court must decide whether Teck’s shareholder preference is racially discriminatory. There is no question that if NANA were Conitz’s employer, it would be exempt from Title VII liability under the exemption provided in 43 U.S.C. § 1626(g). According to the Mancari decision, it would also not be racially discriminatory for Teck to give preference to members of all Indian tribes. However, the Ninth Circuit has held that employment preferences for members of a particular tribe are racially discriminatory when adopted by a non-tribal employer.[15] This is true even where, as in this case, the private employer has instituted the hiring preference as part of an agreement permitting it to operate on tribal lands.[16]

Therefore, if Teck’s employment preference were explicitly for Alaska Natives, or Alaska Natives of NANA regional origin, it would violate Title VII. Teck vehemently denies that any such preference exists; it insists that the preference is for NANA shareholders, who are overwhelmingly though not exclusively Alaska Natives.[17]

Teck’s shareholder preference policy is not written down anywhere, although it is memorialized in the operating agreement between Teck and NANA. The agreement requires that “as many as possible of the employees required by” Teck at the Red Dog Mine “shall be Natives of the NANA Region.”[18] Although “Natives of the NANA Region” sounds like a racial category, the agreement explicitly provides that “‘Natives of the NANA Region’ means the stockholders of NANA whose stock carries voting rights, and the descendants and spouses of such stockholders.”[19] By its own terms, then, the shareholder preference policy is not racial in character, although both parties have tended to confuse rather than clarify the issue by using the terms “NANA shareholder” and “Natives of the NANA Region” interchangeably.[20]

Conitz also argues that the shareholder preference, although not explicitly racial, is a proxy for racial discrimination. He cites Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982), in which the Ninth Circuit held that a shareholder hiring preference was a proxy for racial discrimination where the employer “(1) [assigned] the better jobs with higher pay and more guaranteed hours to the shareholder-employees, who were exclusively of Italian ancestry, and (2) [limited] share ownership to persons who were of Italian ancestry and were either members of the family or close friends of a current shareholder.”[21]

The Bonilla precedent is inapplicable in this case for two reasons. First, several of the beneficiaries of the discrimination in Bonilla were non-shareholders of Italian ancestry. Conitz has not alleged that any Alaska Natives other than NANA shareholders have benefitted from Teck’s shareholder preference policy.

Second, much of the discrimination which took place in Bonilla was done by restricting the selection of shareholders to those of Italian ancestry. The Ninth Circuit held that in those limited circumstances the process of selecting shareholders was subject to Title VII scrutiny.[22] NANA’s shareholder selection, however, is prescribed by an act of Congress, namely ANCSA. It would be improper for this Court to find that NANA’s shareholder selection violates Title VII when it is Congress that has defined the shareholder class. Legislative enactments should be read in harmony with one another, whenever possible.[23] The Court simply cannot conclude that Congress, in creating the Native Corporations, intended them to have less of an ability to negotiate contracts favorable to their shareholders than would any other corporation.

The shareholder preference is not a racial preference, and Conitz has not shown that it is applied as a proxy for racial discrimination. Therefore, the preference is not a racially discriminatory policy prohibited by the Civil Rights Act. The Court need not address Teck’s argument that the Red Dog Mine is a joint venture between NANA and Teck, and therefore exempt from Title VII under the native corporation exemption found in 43 U.S.C. § 1626(g).

B. Conitz Has Failed to Show That He Was Qualified For the Promotion

In Conitz I, the Court ruled that Conitz had failed to make a prima facie case of discrimination because he had not supplied evidence that he was as qualified for a promotion as those individuals who were promoted. His case is similarly deficient in this litigation. In arguing that he was more qualified for the 2008 promotion than Barger, Conitz primarily relies upon his nineteen years of experience at the mine, versus eight years for Barger.[24] Besides his years of experience, Conitz presents no evidence of his qualifications other than his own affidavit, in which he asserts: “Mr. Barger was far less qualified for the position than I. Had Mr. Barger not been assigned to Acting Supervising duty instead of me, Mr. Barger would not have had any supervisory experience.”[25]

Of course, as this statement indicates, Barger had been previously assigned as an Acting Supervisor, and therefore did have supervisory experience at the time of his 2008 promotion. Conitz also recounts that he discussed the decision to promote Barger with his supervisor Larry Hanna, who told him Barger was “doing a better job” than Conitz, but “would never give me a specific reason as to why he thought so.”[26]

The overwhelming testimony of Conitz’s superiors contradicts his characterization of his qualifications. Robert Scott, who was general manager of the Red Dog Mine from 2003-2005, testifies that “Mr. Conitz’s job performance, particularly with respect to safety, made him unsuited to serve as an example for others to follow, which is an integral component of any supervisory position at Teck[.]”[27] Larry Hanna, who made the decision to promote Barger over Conitz in 2008, says,

I selected Mr. Barger to fill a Shift Supervisor position because his leadership skills were superior to those of Mr. Conitz and each of the other candidates, because he was most adept in making the best use of people, and because he had demonstrated superior management skills.[28]

Hanna asserts that Barger was “better qualified than any other applicant.” Of Conitz, Hanna testifies as follows:

Mr. Conitz is an adequate operator who has long showed mediocre performance in his job. […] His attitude is poor. He lacks leadership abilities, does not demonstrate initiative, and is not a team player. […] [H]e has limited abilities to perform tasks that require finesse as an operator. Historically, his safety record has been problematic. At every level, Mr. Conitz has failed to demonstrate that he has the skills that Teck seeks in its supervisors and managers.[29]

This opinion is echoed by Jim Somers, Superintendent of Human Resources at Teck, who calls Conitz a “mediocre employee” who has “typically been ranked at or near the bottom of the applicant pool.”[30]

The Ninth Circuit has repeatedly refused to find a “genuine issue” where the only evidence presented is “uncorroborated and self-serving” testimony.[31] In this case, the only evidence to support Conitz’s qualification for the supervisor position is his own affidavit. While the Court does not disregard Conitz’s affidavit entirely, it is at odds with the testimony of all his superiors at the Red Dog Mine. It is an “uncorroborated and self-serving affidavit” which is insufficient to defeat a motion for summary judgment where substantial contrary evidence has been submitted. In light of the paucity of evidence that Conitz was qualified for a promotion, and the abundance of evidence to the contrary, the Court holds that Conitz has failed to make out a prima facie case for racial discrimination under Title VII.

V. CONCLUSION

Teck’s employment preference for NANA shareholders is not a racial distinction and therefore does not violate either the Civil Rights Act or any other provisions of federal or state law cited by Conitz in his complaint. Furthermore, Conitz has failed to make a prima facie case of discrimination because he was not qualified for the promotion which he sought and for which Charles Barger was accepted. For the foregoing reasons, Teck’s Motion for Summary Judgment at Docket 57 is GRANTED and Conitz’s Motion for a Permanent Injunction at Docket 49 is DENIED. The motions to strike at Dockets 69 and 91 are DENIED AS MOOT because the evidence sought to be excluded had no effect on the Court’s decision. Teck’s Motion to Change Venue at Docket 28 is DENIED AS MOOT.

IT IS SO ORDERED.
ENTERED this 20th day of January, 2010.
/s/ RALPH R. BEISTLINE
United States District Judge

Conitz vs. Teck Cominco Alaska, Inc. and NANA Regional Corporation

Plaintiff Gregg Conitz (“Plaintiff”), an employee of Teck Cominco Alaska, Inc. (“Teck Cominco”), alleges that he was turned down for two Separate promotions because of Teck Cominco’s hiring preference for NANA Regional Corp. (“NANA”) shareholders. Plaintiff, who is not a NANA shareholder, argues that this shareholder hiring preference is a “surrogate” or “proxy” for race and therefore illegal under state and federal anti-discrimination law.[1]

To assert a claim for discrimination and retaliation under federal and state law, a plaintiff-employee must first establish a prima facie case that sets forth facts which raise an inference of discrimination. Only after Plaintiff establishes a prima facie case does the burden shift to the employer to articulate some legitimate nondiscriminatory reason for the employee’s rejection.[2]

To establish a prima facie case “the complainant must show that (1) the complainant belongs to a protected class; (2) the complainant applied for and was qualified for a job for which the employer was seeking applications; (3) the complainant was rejected despite the complainant’s qualifications; and (4) after the complainant’s rejection, the position remained open and the employer continued seeking applications from persons with the complainant’s qualifications.”[3] “[I]f an employer has not left the disputed position open, and has instead hired someone else, the fourth element of the prima facie case is the hiring of an individual not within the same protected class as the complainant.”[4]

Plaintiff’s discrimination and retaliations claims necessarily fail because Plaintiff has not demonstrated that he was qualified for the training and supervisory positions which he sought. Plaintiff therefore fails to establish elements 2 and 3 of the prima facie case. Indeed, the evidence shows that Plaintiff has a poor safety record, little leadership and supervisory experience, and no formal training as a trainer.[5] Additionally, the evidence shows that the individuals who were ultimately selected for the positions were more qualified than both Plaintiff and all other applicants.

Because Plaintiff has not established a prima facie case of discrimination, the burden does not shift to Teck Cominco to demonstrate legitimate nondiscriminatory reasons for not promoting Plaintiff. Even so, Teck Cominco’s policy of hiring the most qualified applicants and its concern regarding Plaintiff’s poor safety record are both legitimate and nondiscriminatory and do not appear to be pretexts for discrimination. When a hiring or firing decision is based upon a lack of proper qualifications, the decision is legitimate and nondiscriminatory as a matter of law.[6]

Further, even if Teck Cominco’s explanations were pretextual, application of the shareholder hiring preference is not prohibited by law because it is based on the permissible distinction of shareholder status rather than race.[7] Not all Natives are NANA shareholders and not all NANA shareholders are Alaska Natives. A non-Native can become a NANA shareholder through marriage, adoption, or inheritance, and counsel for NANA avers that at least 65 of NANA’s 11,655 current shareholders fall into this category.[8] Thus, Plaintiff’s claim that the shareholder hiring preference is a “surrogate” or “proxy” for race is incorrect.

Because Plaintiff has not established a prima facie case, and because the shareholder hiring preference is based on a permissible distinction, the Court need not consider whether 43 U.S.C. § 1626(g) exempts Teck Cominco from the state and federal anti-discrimination laws upon which this suit is based.[9]

Finally, regarding Plaintiff’s claim that Teck Cominco employees invaded Plaintiff’s privacy by opening his personal mail which he had forwarded to his work address, the Court finds that Plaintiff has presented no evidence to support his claim that mail addressed to him was intentionally opened or read. Without evidence of intentionality, Plaintiff has no claim.[10]

The Court therefore concludes that Teck Cominco is entitled to summary judgment on all claims presented by Plaintiff. Accordingly, Teck Cominco’s Motion at Docket 91 is granted, all other pending motions are denied as moot, and this matter is dismissed with prejudice.

It is so ordered.

ENTERED this 21st day of July, 2008.

/s/ RALPH R. BEISTLINE

United States District Judge