Martin Marceau v. Blackfeet Housing Authority

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN MARCEAU; CANDICE
LAMOTT; JULIE RATTLER; JOSEPH
RATTLER, JR.; JOHN G. EDWARDS;
MARY J. GRANT; TERRY GRAY; and
DEANA MOUNTAIN CHIEF, on behalf
of themselves and others similarly situated,
Plaintiffs - Appellants,
v.
BLACKFEET HOUSING AUTHORITY;
its board members, SANDRA
CALFBOSSRIBS, KELLY EDWARDS,
and URSULA SPOTTED BEAR; and
MEL MARTINEZ, Secretary,
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, UNITED
STATES OF AMERICA,
Defendants - Appellees.
No. 11-35444
DC No. Civ. 4:02-0073 SEH
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted April 10, 2012
FILED
JUN 05 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Seattle, Washington
Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.
In this putative class action, plaintiffs – American Indian individuals whose
homes were built in the late 1970s with the financial assistance of the United States
Department of Housing and Urban Development (“HUD”) – appeal the district
court’s grant of summary judgment in favor of HUD. Because the district court
certified its judgment under Fed. R. Civ. P. 54(b), we have jurisdiction under 28
U.S.C. § 1291. We affirm.
1. The district court correctly rejected plaintiffs’ Administrative
Procedure Act (“APA”) claim that HUD, in violation of its statutory and regulatory
authority, required the use of wooden foundations in the construction of plaintiffs’
houses. Civil actions against federal agencies must be “filed within six years after
the right of action first accrues,” 28 U.S.C. § 2401(a); a substantive challenge to an
agency decision as beyond its authority accrues when the disputed decision is first
“appli[ed] . . . to the challenger,” Wind River Mining Corp. v. United States, 946
F.2d 710, 715-16 (9th Cir. 1991). Plaintiffs’ claim against HUD accrued in the late
1970s, when the agency purportedly decided to require wooden foundations. At
that time, plaintiffs knew about the decision and knew that it affected them. Cf. id.
at 715 (agency action not immune from review simply because it occurred “long

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before anyone discovered the true state of affairs”); N. Cnty. Cmty. Alliance, Inc. v.
Salazar, 573 F.3d 738, 743 (9th Cir. 2009) (allowing challenge to 14-year-old
agency action to proceed where plaintiffs could not have known it would affect
them until shortly before filing suit). That plaintiffs may not have immediately
grasped the full impact that HUD’s decision might eventually have on them does
not mean they knew too little in 1980 to bring an APA challenge.
2. The district court also correctly rejected plaintiffs’ claim that HUD
wrongly denied, or failed to respond to, various requests made by individual
homeowners and by their Indian housing authority for HUD’s assistance in
repairing and maintaining the houses. Agency inaction can support a claim under
the APA, see 5 U.S.C. § 706(1), but only where the action is “legally required.”
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64-65 (2004) (emphasis in
original). Plaintiffs identified several instances in which HUD officials were
alerted to the problems plaintiffs face as a result of the wooden foundations used in
the construction of their homes, but no instances in which HUD failed to comply
with a specific obligation imposed by law.
AFFIRMED.

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