F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 1, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD LEE BEAMS,
Plaintiff - Appellant,
No. 04-3393
v. (D.C. No. 03-CV-4072-JAR)
(Dist. Kan.)
GALE NORTON, Secretary of
Department of Interior,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, KELLY, and MURPHY Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Richard Lee Beams appeals from district court orders that dismissed his
Indian Preference Act (IPA) claim for lack of subject matter jurisdiction and
failure to state a claim, see 25 U.S.C. § 472, and entered summary judgment on
his discrimination and retaliation claims, 29 U.S.C. § 633a; 42 U.S.C. § 2000e-16.
We review a dismissal for lack of subject matter jurisdiction de novo.
Radil v. Sanborn Western Camps, Inc. , 384 F.3d 1220, 1224 (10th Cir. 2004) .
Whether a private right of action exists is a jurisdictional concern, Hancock v.
Blue Cross-Blue Shield of Kansas, Inc. , 21 F.3d 373, 374 (10th Cir. 1994), which
turns on “‘whether Congress intended to create the private remedy asserted.’”
Southwest Air Ambulance, Inc. v. City of Las Cruces , 268 F.3d 1162, 1169 (10th
Cir. 2001) ( quoting Transamerica Mortgage Advisors, Inc. v. Lewis , 444 U.S. 11,
16 (1979)). As for orders granting summary judgment, our review is de novo,
Alexander v. Oklahoma , 382 F.3d 1206, 1215 (10th Cir. 2004), to determine
whether “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
After reviewing the parties’ briefs, the record, and the applicable law, we
conclude that the district court did not err in dismissing appellant’s IPA claim and
entering summary judgment on appellant’s discrimination and retaliation claims.
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Accordingly, we AFFIRM the challenged decisions for substantially the same
reasons stated by the district court in its July 30, 2004, and September 7, 2004
orders. 1
Entered for the Court
Michael R. Murphy
Circuit Judge
1
We decline to adopt that portion of the district court’s July 30, 2004
decision that examines Beams’ IPA claim under Federal Rule of Civil Procedure
12(b)(6) and finds a failure to plead a claim for non-monetary relief under the
Administrative Procedure Act. See Steel Co. v. Citizens for a Better Env’t , 523
U.S. 83, 94, 101-02 (1998).
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