Miles Beam v. Alban Naha ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILES BEAM, No. 18-15968
Plaintiff-Appellant, D.C. No. 3:17-cv-08078-JWS
v.
MEMORANDUM*
ALBAN NAHA; JASON LOBIK,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted August 7, 2019
Anchorage, Alaska
Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.
Miles Beam appeals from the grant of summary judgment in favor of the
defendant Hopi Indian tribal school officials, Alban Naha and Jason Lobik,
dismissing his First Amendment free speech claims. We have jurisdiction under
28 U.S.C. § 1291. We review a grant of summary judgment de novo, Bressi v.
Ford, 575 F.3d 891, 895 (9th Cir. 2009), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
In 1994, pursuant to the Hopi Constitution and as authorized by federal law,
the Hopi Tribal Council assumed responsibility of Hopi Junior/Senior High School
(“Hopi High School”) by converting it from a Bureau of Indian Affairs (“BIA”)
operated school to a tribally controlled school. Beam was employed as a teacher at
Hopi High School in 2009 and now sues the Superintendent and Principal of Hopi
High School for federal civil rights violations under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Beam does not claim
that the defendants are federal employees, instead alleging that they acted under
the color of federal law. See Schowengerdt v. Gen. Dynamics Corp., 823 F.2d
1328, 1337–38 (9th Cir. 1987) (holding that “the private status of the defendant
will not serve to defeat a Bivens claim, provided that the defendant engaged in
federal action”); Bressi, 575 F.3d at 898 (noting that a “Bivens claim require[d] a
showing that the tribal officers acted under color of federal authority”).
In Rendell-Baker v. Kohn, 457 U.S. 830, 840–43 (1982), the Supreme Court
articulated four factors to determine whether an entity is engaging in government
action: 1) the degree of funding by the government; 2) the extent to which
regulations influence the entity’s conduct; 3) whether the entity was engaging in a
public function; and 4) whether there was a symbiotic relationship between the
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government and the entity.1 See also Morse v. N. Coast Opportunities, 118 F.3d
1338, 1342–43 (9th Cir. 1997) (utilizing the Rendell-Baker factors to determine
whether a non-profit community action agency acted under the color of state law in
its hiring and firing decisions). The ultimate question is “whether there is a
sufficiently close nexus between the [government] and the challenged action of the
regulated entity so that the action of the latter may be fairly treated as that of the
[government] itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).
Applying the Rendell-Baker factors, we first note that the Supreme Court
has held that the fact that “virtually all of [a] school’s income was derived from
government funding” does not convert its actions into those of the government.
Rendell-Baker, 457 U.S. at 840. Thus, although Hopi High School receives
substantial grant money from the federal government, this “does not support a
finding of governmental action here.” Morse, 118 F.3d at 1342.
Second, Beam points to no regulations that “compelled or even influenced”
the conduct of which he complains. Id. (quoting Rendell-Baker, 457 U.S. at 841);
see also 25 C.F.R. § 36.24 (relating to general curriculum standards, not
1
Although the morass of state action tests has not created a paradigm of clarity to
assist us in the analysis, the parties agree that the state action test as articulated in
Rendell-Baker applies here. See Mathis v. Pac. Gas & Elec. Co., 891 F.2d 1429,
1432 n.3 (9th Cir. 1989) (“The standards for determining whether an action is
governmental are the same whether the purported nexus is to the state or to the
federal government.”).
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defendants’ conduct). Although 25 C.F.R. Part 38 lays out the grievance/discipline
process and other personnel procedures for BIA employees, this regulation does
not apply to employees of tribally controlled grant schools, such as Hopi High
School.2 See 25 C.F.R. §§ 38.1, 38.3.
Third, to hold that Native American education is the “exclusive prerogative”
of the federal government would be contrary to both history and Congress’ explicit
intent that education of Native Americans should fall under the scope of tribal
sovereignty and interests. Rendell-Baker, 457 U.S. at 842 (quotations omitted).
Indeed, the Tribally Controlled Schools Act itself provides that one of its primary
purposes is to establish “a meaningful Indian self-determination policy for
education that will deter further perpetuation of Federal bureaucratic domination of
programs.” See 25 U.S.C. § 2501(b).
Fourth, there is no evidence of a symbiotic relationship between the federal
government and Hopi High School. The record lacks evidence that Hopi High
School was conferring “significant financial benefits indispensable to the
government’s financial success” or that the federal government exercised plenary
control over the school’s employment and personnel matters. Brunette v. Humane
2
Additionally, neither the July 1, 2016, letter from the Bureau of Indian Education
to the Hopi High School Board, nor Policy GCQF (describing Hopi High School’s
disciplinary process for teachers) list 25 C.F.R. Part 38 as applying to Hopi High
School.
4
Soc’y of Ventura Cty., 294 F.3d 1205, 1213 (9th Cir. 2002) (internal quotation
marks omitted); see also Rendell-Baker, 457 U.S. at 843 (holding no symbiotic
relationship existed where “the school’s fiscal relationship with the State [was] not
different from that of many contractors performing services for the government”).
Finally, that tribally controlled grant schools and their employees are
considered federal actors under the Federal Tort Claims Act (“FTCA”), see 25
C.F.R. § 44.111, does not render defendants federal actors for purposes of Bivens,
because “an entity may be a [federal] actor for some purposes but not for others,”
Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 813 (9th Cir. 2010)
(citation omitted), and in a similar situation, we held that “Indian contractors” were
not rendered “employees of the BIA for all purposes” by virtue of the FTCA,
Snyder v. Navajo Nation, 382 F.3d 892, 897 (9th Cir. 2004).
Weighing these factors, we hold that the defendants here were not federal
actors for purposes of Bivens liability. The district court therefore correctly
granted summary judgment for the defendants.
AFFIRMED.
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