Lawrence v. Department Interior ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILLIP G. LAWRENCE, and all other 
persons similarly situated,
Plaintiff-Appellant, No. 06-35448
v.
 D.C. No.
CV-04-00203-EFS
DEPARTMENT OF INTERIOR, agency;
DIRK KEMPTHORNE,* Secretary of OPINION
the Department of the Interior,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
November 7, 2007—Seattle, Washington
Filed May 13, 2008
Before: William C. Canby, Jr., Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Canby
*Dirk Kempthorne is substituted for his predecessor, Gale Norton, as
Secretary of the Department of the Interior, pursuant to FED. R. APP. P.
43(c)(2).
5401
LAWRENCE v. DEP’T OF INTERIOR 5403
COUNSEL
Richard B. Price, Omak, Washington, for the appellant.
Andrew S. Biviano, Assistant United States Attorney, Spo-
kane, Washington, for the appellees.
OPINION
CANBY, Circuit Judge:
Phillip Lawrence, a member of the Standing Rock Sioux
Indian Tribe, has been employed for many years by the
Bureau of Indian Affairs (“BIA”). He brought this action to
challenge the denial of increased retirement benefits payable
to employees whose duties included firefighting. He alleges
that the BIA failed to notify him of an application deadline for
retroactive reclassifications of service to reflect firefighting
service. As a result of this failure, Lawrence missed the dead-
line and corresponding benefits were denied. In this action, he
claims that the BIA’s failure to notify him constituted a viola-
tion of federal trust responsibility toward Indians, a violation
of the Indian Preference Act, and employment discrimination
on the basis of race. The district court granted summary judg-
ment for the BIA, and we affirm.
FACTS
Since June 1976, Lawrence has worked with the BIA as a
forester and silviculturalist. The job descriptions for those
5404 LAWRENCE v. DEP’T OF INTERIOR
positions did not specify that his duties included fire suppres-
sion. Nonetheless, during fire season, Lawrence spent much
of his work-time fighting fires.
The Civil Service Retirement System grants an enhanced
benefit retirement program to firefighters credited with 20
years of service. 5 U.S.C. § 8336(c)(1). In order to be credited
for service as firefighters, employees like Lawrence who
serve in positions not approved as firefighting positions must
apply for the credit and prove that their duties included fire-
fighting. 5 C.F.R. § 831.906(b). In 1987, the Civil Service
regulations were changed so that the credit for years of fire-
fighting would reach back only one year prior to making such
an application. See 5 C.F.R. § 831.906(e). The change was
published in the Federal Register. 52 Fed. Reg. 47893 (Dec.
17, 1987). Under the new regulation, existing employees
would receive credit for their entire career if they filed before
September 30, 1989. 52 Fed. Reg. at 47896.
In the months that followed publication of the new regula-
tion, the BIA issued several “Personnel Management Bulle-
tins” to agency personnel officers, superintendents, and
division chiefs instructing them to pay “special attention” to
the new deadline and “insure that Bureau employees who may
be eligible under the special retirement provisions are again
reminded” of it. Nonetheless, Lawrence received no actual
notice of the change until December 1998, when the Depart-
ment of the Interior held a firefighters’ and law enforcement
officers’ retirement workshop on the Colville Reservation
where Lawrence worked. There, Lawrence was erroneously
advised that if he filed a claim within one year of the work-
shop, the claim would cover the course of his entire career at
the agency.1
1
At the time this advice was given, the deadline was nine years past for
full recognition of Lawrence’s career firefighting services.
LAWRENCE v. DEP’T OF INTERIOR 5405
Lawrence filed his claim on May 5, 1999. The Department
determined that the request for pre-1998 service credit was
barred by the one-year rule and denied that portion of the claim.2
Title 5 C.F.R. § 831.906(f) allows the agency head to extend
the time limit for filing if “the individual shows that he or she
was prevented by circumstances beyond his or her control
from making the request within the time limit.” The Depart-
ment found that Lawrence’s ignorance of the time limit did
not constitute a circumstance beyond his control.
Lawrence sought review of this decision from the Merit
Systems Protection Board. The Board denied his petition for
review. Lawrence challenged this denial in the district court.3
He argued, inter alia, that the BIA’s failure to provide him
with actual and timely notice of the 1987 regulation limiting
claims violated the BIA’s obligations to Lawrence under the
federal trust responsibility toward Indians, violated the Indian
Preference Act, and constituted unlawful employment dis-
crimination in violation of Title VII. The district court
rejected these arguments and granted summary judgment
against Lawrence, who brought this appeal. We have jurisdic-
tion pursuant to 28 U.S.C. § 1291.
DISCUSSION
We review a grant of summary judgment de novo, viewing
the agency’s decision from the same position as the district
court. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.
1995). A court reviewing a decision of the Merit Systems Pro-
2
The Department also initially denied benefits for the period after May
4, 1998, but that portion of the decision has been rescinded. That denial
is not before the court.
3
“Although appeals of Merit Systems Protection Board decisions gener-
ally must be filed in the Federal Circuit Court of Appeals, district courts
have jurisdiction to review ‘mixed’ cases, in which an action involves both
a Merit Systems Protection Act appeal and a discrimination claim.” Coons
v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d 879, 884 (9th Cir.
2004) (citing 5 U.S.C. § 7703(b)(2)).
5406 LAWRENCE v. DEP’T OF INTERIOR
tection Board must “set aside any agency action, findings, or
conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence . . . .”
5 U.S.C. § 7703(c); see Coons, 383 F.3d at 888. An employee
asserting Title VII discrimination claims in such review is
entitled to trial de novo of that claim. 5 U.S.C. § 7703(c).
[1] Under generally applicable civil service law, the gov-
ernment did not waive the time limit of 5 C.F.R. § 831.906(e)
by failing to provide actual notice of the new time limit to
current employees. Stearn v. Dep’t of the Navy, 280 F.3d
1376, 1384-85 (Fed. Cir. 2002). As Stearn provides, publica-
tion in the Federal Register suffices as constructive notice to
Lawrence of the limitations period. Id. Although the regula-
tion does provide for waiver when the employee is “prevented
by circumstances beyond his or her control from making the
request within the time limit,” 5 C.F.R. § 831.906(f), no such
circumstances were present in this case.
[2] The federal government’s trust responsibility toward
Indian tribes does not change the rule. This is not a case
where the United States holds assets in trust for a tribe and
has a fiduciary obligation to provide actual notice to benefi-
ciaries of their claims. See Loudner v. United States, 108 F.3d
896, 900-01 (8th Cir. 1997). The agency discharged its fidu-
ciary obligations by complying with the Civil Service Regula-
tions, which are “general regulations and statutes not
specifically aimed at protecting Indian tribes.” Morongo Band
of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998).
The agency’s failure to provide employees with actual and
LAWRENCE v. DEP’T OF INTERIOR 5407
timely notice of the regulatory change is regrettable—
particularly in light of the agency’s repeated written instruc-
tions to supervisors to provide such notice—but trust doctrine
imposes no special notice obligation beyond that enunciated
in Stearn.
[3] Lawrence fares no better under the Indian Preference
Act. The text of this act accords Indians a preference in “hir-
ing,” 25 U.S.C. § 472, and the BIA has interpreted “hiring” to
mean “initial hiring, reinstatement, transfer, reassignment or
promotion.” 25 C.F.R. § 5.2(a). This preference of 25 U.S.C.
§ 472 supersedes the otherwise “blind” application of the
Civil Service Regulations in the hiring of Indians. See Preston
v. Heckler, 734 F.2d 1359, 1370-71 (9th Cir. 1984). Lawrence
argues that the word “reassignment” extends to retroactive
recognition that his employment included firefighting for ben-
efits purposes, and that the preference accordingly applies
here. While “statutes enacted for the benefit of Indians must
be liberally construed with all doubts resolved in favor of the
Indians,” id. at 1369, we cannot read “hiring” or “reassign-
ment” so broadly as to include a retroactive recognition that
Lawrence’s duties included firefighting. The Merit Systems
Protection Board therefore did not act arbitrarily or contrary
to law in holding that the limited imperatives of the Prefer-
ence Act do not apply to this case. With regard to the matter
in issue, the regular provisions of the Civil Service Regula-
tions govern Lawrence as they do any other employee.
[4] Finally, the district court did not err when it granted the
Department’s motion for summary judgment on Lawrence’s
disparate impact claim. See Civil Rights Act of 1964 § 717(a),
as amended, 42 U.S.C. § 2000e-16. Lawrence failed to make
a prima facie showing of disparate impact, which is “usually
accomplished by statistical evidence showing that an employ-
ment practice selects members of a protected class in a pro-
portion smaller than their percentage in the pool of actual
applicants.” Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir.
2002) (internal quotation marks omitted) (quoting Robinson v.
5408 LAWRENCE v. DEP’T OF INTERIOR
Adams, 847 F.2d 1315, 1318 (9th Cir. 1988)). Lawrence pre-
sented evidence that the BIA’s policy affected some Indian
employees, but he presented no evidence that the failure to
provide actual and timely notice disproportionately affected
Indians more than other racial groups.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.