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U.S. 9th Circuit Court of Appeals
PINK v MODOC INDIAN HEALTH
9615923
ROSEMARIE SOUTHCOTT PINK, Plaintiff-Appellant, No. 96-15923 v. D.C. No. MODOC INDIAN HEALTH PROJECT, CV-94-01734-GEB INC.; INDIAN HEALTH SERVICES; OPINION ERIN FORREST, as an individual, Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted June 20, 1998*
San Francisco, California
Filed October 6, 1998
Before: Herbert Y. C. Choy, Joseph T. Sneed, and
Charles Wiggins, Circuit Judges.
Opinion by Judge Sneed
_________________________________________________________________
_________________________________________________________________
COUNSEL
Rosemarie Southcott Pink, Pro per, Denver, Colorado, for the
plaintiff-appellant.
Debora G. Luther, Assistant United States Attorney, Sacra-
mento, California; Robert J. Logan, San Jose, California, for
the defendants-appellees.
_________________________________________________________________
OPINION
SNEED, Circuit Judge:
Rosemarie Pink ("Pink") appeals the district court's judg-
ment dismissing her Complaint for lack of subject matter
jurisdiction. Pink brought suit against the Modoc Indian
Health Project, Inc. ("Modoc") (her former employer), Erin
Forrest ("Forrest") (her former supervisor), and Indian Health
Services ("IHS") (a federal agency), seeking damages for sex-
ual harassment, gender, race, and national origin discrimina-
tion, and wrongful termination. We review de novo the
district court's dismissal for lack of subject matter jurisdic-
tion, see Mobil Oil Corp. v. City of Long Beach, 772 F.2d
534, 538 (9th Cir. 1985), and affirm.
I.
FACTS
Modoc is a nonprofit corporation created and controlled by
the Alturas and Cedarville Rancherias, both federally recog-
nized tribes. Modoc was "organized for charitable, educa-
tional, and scientific purposes and such other related purposes
. . . relative to the delivery of certain services pursuant to [the
Indian Self-Determination Act]." IHS, an agency of the
United States Department of Health and Human Services,
awarded Modoc an Indian self-determination contract to pro-
vide health services to tribe members. See 25 U.S.C. S 1661.
Pink, a Native American, was hired by Modoc in Novem-
ber 1983 as the coordinator of the Indian Child Welfare Act
Program. Pink alleged that from July 1991 until her termina-
tion in October 1993, her former supervisor Forrest subjected
her to sexual harassment, sexual assault and a hostile work-
place environment. Pink brought suit under federal and state
law in tort, for employment discrimination and breach of
contract.1
The district court dismissed Pink's Complaint on several
grounds. First, the court concluded that it lacked subject mat-
ter jurisdiction to hear Pink's suit under 28 U.S.C.S 1346
against IHS, a federal agency. Second, the court refused to
allow Pink to substitute the United States as a defendant
because Congress did not waive sovereign immunity to
include the class of claims raised by Pink. Third, the court
concluded that Modoc is a "tribe" for purposes of Title VII of
the Civil Rights Act of 1964, and as such, is exempt from lia-
bility under Title VII. Fourth, the court held that Modoc did
not lose its immunity merely because the Indian Self-
Determination and Education Assistance Act ("ISDEAA")
contract was performed outside of reservation premises. Fifth,
the court refused to impose Title VII liability against Forrest
because a Title VII claim cannot be brought against an indi-
vidual employee supervisor. Pink timely appealed pro se the
district court's dismissal for lack of subject matter jurisdiction.2
II.
DISCUSSION
A. Indian Health Services
[1] Pink contends that the district court erred by dismissing
her claims against Indian Health Services ("IHS"). This con-
tention lacks merit. Federal agencies "cannot be sued eo
nomine unless so authorized by Congress in explicit
language." Shelton v. United States Customs Serv., 565 F.2d
1140, 1141 (9th Cir. 1977) (per curiam). Congress did not
expressly authorize suits against federal agencies under the
Federal Tort Claims Act. See Allen v. Veterans Admin., 749
F.2d 1386, 1388 (9th Cir. 1984). The district court therefore
properly dismissed Pink's claims against IHS.
B. Amendment to Substitute the United States
[2] Pink's proposed amendment to substitute the United
States would have been futile because Congress did not waive
sovereign immunity. See 28 U.S.C. S 2680(h). Further, Pink
conceded that she had no claim against the United States inde-
pendent of her claims against Modoc and Forrest. Accord-
ingly, the district court properly rejected Pink's amendment.
See Stock West, Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
C. Title VII
Pink also argues that the district court erred by dismissing
her claims against Modoc under Title VII because Modoc is
not a "tribe" as defined by the Act. We disagree.
[3] Title VII prohibits employers from engaging in discrim-
inatory practices. Congress, however, exempted "Indian
tribe[s]" from the scope of the definition of "employer" as
used in Title VII. See 42 U.S.C. S 2000e(b).
Although the Ninth Circuit has not specifically addressed
whether a nonprofit organization incorporated by two Indian
tribes is a "tribe" for purposes of Title VII exemption, the
Tenth Circuit has addressed a similar question. In Dille v.
Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir.
1986), the court held that a council comprised of thirty-nine
Indian tribes that had joined together to collectively manage
energy resources was a "tribe" within the scope of Title VII's
Indian tribe exemption. The Dille Court held that Congress
intended to exempt individual Indian tribes as well as
collective efforts by Indian tribes. The court reasoned that the
purpose of the tribal exemption, like the purpose of sovereign
immunity itself, was to promote the ability of Indian tribes to
control their own enterprises. See Dille, 801 F.2d at 375-76;
see also Wardle v. Ute Indian Tribe, 623 F.2d 670, 672 (10th
Cir. 1980) ("Indian tribes and businesses operating on or near
Indian reservations are excluded from the employment prohi-
bitions of Title VII.").
[4] Here, Modoc served as an arm of the sovereign tribes,
acting as more than a mere business. Modoc's board of direc-
tors consisted of two representatives from each Rancheria
tribal government. Like the collection of tribes in Dille,
Modoc was organized to control a collective enterprise and
therefore falls within the scope of the Indian Tribe exemption
of Title VII. See 42 U.S.C. S 2000e(b); see also Dille, 801
F.2d at 375-76. The district court properly concluded that
Pink could not bring suit against Modoc under Title VII.
D. ISDEAA
Pink also contends that the district court erred by holding
that the ISDEAA did not confer it subject matter jurisdiction.
Pink is incorrect.
[5] Congress sought to achieve essentially the same goal
when it enacted the ISDEAA as when it excluded "tribes"
from the operation of Title VII. Both the ISDEAA and the
Title VII "tribe" exemption attempt to aid tribal entities in
their efforts to conduct their own affairs and economic activi-
ties with as much autonomy as possible. See Dille, 801 F.2d
at 374. Accordingly, the ISDEAA states, "[n]othing in this
Act shall be construed as affecting, modifying, diminishing,
or otherwise impairing the sovereign immunity from suit
enjoyed by an Indian tribe." 25 U.S.C. S 450n(1). Because the
ISDEAA does not effect tribal sovereign immunity, the dis-
trict court was correct in holding that the ISDEAA could not
confer subject matter jurisdiction.
[6] Pink additionally contends that Modoc waived its
immunity because the alleged misconduct occurred outside of
the reservation land. We disagree. Congress did not limit the
scope of tribal immunity, as such, the tribes retain the extra-
territorial component of sovereign immunity. See Richardson
v. Mt. Adams Furniture (In re Greene), 980 F.2d 590, 596
(9th Cir. 1992); see also 25 U.S.C. S 450n (stating that noth-
ing in the ISDEAA shall be construed as waiving a tribe's
sovereign immunity). Thus, Modoc did not lose its exemption
simply because it performed the self-determination contract
for health services off the reservation. See In re Greene, 980
F.2d at 596.
E. Individual Liability
Pink contends that the district court erred by dismissing her
employment discrimination claims against Forrest because
Title VII imposes individual liability. We disagree.
[7] Assuming arguendo that Modoc's immunity did not
extend to Forrest, civil liability for employment discrimina-
tion does not extend to individual agents of the employer who
committed the violations, even if that agent is a supervisory
employee. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583,
587-88 (9th Cir. 1993). The district court therefore properly
dismissed Pink's employment discrimination claims against
Forrest, a Modoc employee.
F. Indian Civil Rights Act
[8] Pink additionally contends that the district court's dis-
missal violates her right to due process under the Indian Civil
Rights Act ("ICRA"), 25 U.S.C. S 1301. Pink is incorrect.
ICRA only provides a basis for an individual to bring a
habeas corpus civil claim. See Santa Clara Pueblo v. Marti-
nez,
436 U.S. 49, 59
(1978); R.J. Williams Co. v. Fort
Belknap Housing Auth., 719 F.2d 979, 981 (9th Cir. 1983).
This court therefore rejects Pink's contention, raised for the
first time on appeal, that her due process rights under ICRA
were violated. Cf. Barker v. Menominee Nation Casino, 897
F. Supp. 389, 394-95 (E.D. Wis. 1995) (holding that former
employee of Indian casino could not sue for any alleged
breach of due process rights under ICRA).3
G. Leave to Amend
Pink contends that the district court erred by denying her
leave to amend her complaint. This contention lacks merit.
[9] This court reviews a denial of leave to amend for abuse
of discretion. See DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 185-86 (9th Cir. 1987). A district court properly denies
a party's request for leave to amend if such leave would be
futile. See id. at 186. Here, the district court denied Pink's
request for leave to amend because the alleged facts, even if
true, provided no basis for subject matter jurisdiction. The
district court did not abuse its discretion by denying leave to
amend on that basis. See id.
In sum, we find that the district court did not err in its dis-
missal of Pink's claims for lack of subject matter jurisdiction.
AFFIRMED.
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FOOTNOTES
1 Specifically, Pink alleged eleven causes of action in her second
amended complaint: (1) breach of contract (v. IHS, Modoc); (2) bad faith
(v. IHS, Modoc); intentional misrepresentation (v. IHS, Modoc, Forrest);
(3) negligent misrepresentation (v. IHS, Modoc, Forrest); (5) intentional
interference with business relations (v. Forrest); (6) negligence (v. IHS,
Modoc, Forrest); (7) race and national origin discrimination under Title
VII and FEHA (v. IHS, Modoc, Forrest); (8) sexual harassment and hostile
work environment under FEHA only (v. IHS, Modoc, Forrest); (9) retalia-
tory discharge in violation of public policy under the California constitu-
tion and "U.S. Const. (Title VII)" (v. IHS, Modoc, Forrest); (10)
intentional infliction of emotional distress (v. IHS, Modoc, Forrest); and
(11) assault and battery (v. IHS, Modoc, Forrest). At the hearing, Pink
withdrew her seventh cause of action under Title VII against IHS.
2 Pink was represented by counsel in the district court.
3 Only the tribal judiciary and legislature would be subject to liability in
federal court under ICRA. See Barker, 897 F. Supp. at 395. Because Pink
did not allege that she first challenged her termination in tribal court, no
violation of Pink's civil rights under ICRA has occurred. See id. the end
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