FILED

NOT FOR PUBLICATION

JUN 26 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARLINE COLE, as an individual and as No. 14-35664 personal representative of the Estate of Steven Bearcrane; et al., D.C. No. 1:09-cv-00021-SEH

Plaintiffs-Appellants,

MEMORANDUM*

v.

MATTHEW ORAVEC, in his individual capacity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding

Argued and Submitted February 8, 2017 Seattle, Washington

Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.

Steven Bearcrane, a member of the Crow Nation, was shot and killed on the

Crow Indian Reservation by a non-Native American. The FBI investigated his

death and classified it as a non-crime. The decedent’s family members—Earlene

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Cole, Cleteus Cole, and Precious Bearcrane (collectively, the “Bearcrane Family

Members”)—filed suit against the FBI Salt Lake City Field Office1 (the “FBI”) and

FBI Agent Oravec (“Oravec”) (collectively, “Defendants”) for violations of their

equal protection, substantive due process, and treaty rights. The Bearcrane Family

Members asserted claims in their individual and representative capacities, as well

as on behalf of third parties. They appeal only the dismissal of claims brought in

their individual capacities. We review the dismissal de novo. Ariz. Students’ Ass’n

v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016).

1. The district court dismissed the Bearcrane Family Members’

individual capacity claims for lack of standing. The Bearcrane Family Members

argue that they have standing to assert equal protection claims in their individual

capacities because they suffered disparate treatment as a result of Defendants’ bias

against Native Americans. The Bearcrane Family Members alleged that

Defendants’ conduct has caused them to suffer several distinct injuries. They

claim that they receive fewer and less-adequate law enforcement services and are

therefore less secure than other citizens, which has severely impacted them, both

1 In their Opening Brief, the Bearcrane Family Members note that the Billings, Montana FBI Office may be the proper defendant, as opposed to the FBI Salt Lake City Field Office. On remand, they may raise this issue with the district court, if necessary. 2 emotionally and economically. They also claim that, as a result of their bias

against Native Americans, Defendants erected a barrier to their ability to access

statutory schemes that confer benefits on victims of crime. Indeed, the Bearcrane

Family Members alleged that Defendants were motivated by impermissible bias

when they classified Steven Bearcrane’s death as a non-crime, which foreclosed

any potential victims’ benefits, and when Oravec interfered with the usual

procedure that governs the manner in which crime victims may obtain benefits.

The Bearcrane Family Members seek declaratory and injunctive relief against the

FBI, and declaratory relief, damages, attorney’s fees, and interest against Oravec.

2. We conclude that the Bearcrane Family Members’ alleged denial of

benefits under the crime victims’ rights statutes, resulting from Defendants’

alleged bias against Native Americans, confers standing for them to assert equal

protection claims in their individual capacities. With respect to this particular

theory, the Bearcrane Family Members have sufficiently alleged an injury in fact, a

causal connection, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555,

560-61 (1992); see Ne. Fla. Chapter of the Associated Gen. Contractors v. City of

Jacksonville, 508 U.S. 656, 666 (1993) (“When the government erects a barrier

that makes it more difficult for members of one group to obtain a benefit than it is

for members of another group, a member of the former group seeking to challenge

3 the barrier need not allege that he would have obtained the benefit but for the

barrier in order to establish standing.”); Barnes-Wallace v. City of San Diego, 704

F.3d 1067, 1085 (9th Cir. 2012) (“[W]hen the government imposes a

discriminatory barrier making it more difficult for members of a group to obtain a

benefit . . . , the injury of unequal opportunity to compete confers standing.”).2 But

the Bearcrane Family Members’ other alleged injuries-in-fact do not confer

standing to proceed with their equal protection claims, as these injuries are merely

“generalized grievances.” See Lance v. Coffman, 549 U.S. 437, 439–42 (2007).

3. None of the Bearcrane Family Members’ theories of standing supports

their substantive due process or treaty-based claims, see DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 352 (2006) (holding that “a plaintiff must demonstrate

standing for each claim he seeks to press”), as those claims do not relate to the

discriminatory barrier allegedly created by Defendants. Rather, those claims

concern different injuries, including stigmatization and the denial of basic safety.

Such injuries are indirect, non-particularized, and non-concrete. See Spokeo, Inc.

2 Although the dissent distinguishes Barnes-Wallace on the basis that it involved “a policy or program that expressly preferred one group over another,” Dissent at 4, the government did not establish the policy at issue in Barnes- Wallace. To the contrary, the government entered into a lease with the Boy Scouts, and the Boy Scouts had exclusionary policies regarding membership. See 704 F.3d at 1072–74. The court nonetheless entertained the potential application of standing on the basis of a discriminatory barrier. See id. at 1085–86. 4 v. Robins, 136 S. Ct. 1540, 1548 (2016); Heckler v. Mathews, 465 U.S. 728, 740

n.9 (1984). The Bearcrane Family Members therefore do not have standing to

assert substantive due process and treaty-based claims in their individual

capacities, and those claims were properly dismissed on that basis.3

4. Having found the Bearcrane Family Members have standing to bring

an equal protection claim in their individual capacities, we must decide whether the

Bearcrane Family Members plausibly alleged an equal protection claim against the

FBI under Federal Rule of Civil Procedure 12(b)(6).4 To state an equal protection

claim, the Bearcrane Family Members must have plausibly alleged that “actions of

the defendants had a discriminatory impact, and that defendants acted with an

intent or purpose to discriminate based upon plaintiffs’ membership in a protected

class.” Darensburg v. Metro. Transp. Comm’n, 636 F.3d 511, 522 (9th Cir. 2011)

(quoting The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d

690, 702-03 (9th Cir. 2009)). “Where, as here, the challenged governmental policy

is ‘facially neutral,’ proof of disproportionate impact on an identifiable group, such

3 The district court also correctly concluded that even if the Bearcrane Family Members had standing, they failed to allege plausible substantive due process and treaty-based claims. 4 The Bearcrane Family Members do not challenge the district court’s finding that they did not plausibly allege an equal protection claim, brought in their individual capacities, against Oravec in his official capacity. 5 as evidence of ‘gross statistical disparities,’ can satisfy the intent requirement

where it tends to show that some invidious or discriminatory purpose underlies the

policy.” The Comm. Concerning Cmty. Improvement, 583 F.3d at 703. Because

this case comes to us on a motion to dismiss, we assume the truth of the Bearcrane

Family Members’ factual allegations and determine only “whether they plausibly

give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

5. Here, the Bearcrane Family Members, who are Native American, have

alleged stark statistics regarding the high rate of crime committed against Native

Americans, as compared to rates of crime committed against non-Native

Americans. They have alleged that the FBI is responsible for the proliferation of

crime against Native Americans because it has abdicated its responsibility to

investigate crimes involving Native American victims. The Bearcrane Family

Members point to the FBI’s allegedly inadequate investigations into the deaths of

Steven Bearcrane and Robert Springfield, both of whom were Native American,

including the FBI’s destruction of evidence in the course of the Steven Bearcrane

investigation. They further alleged that the Billings, Montana FBI Office, which is

overseen by the FBI Salt Lake City Field Office, routinely closes cases involving

Native American victims without investigating or prosecuting those who

committed such crimes. See Elliot-Park v. Manglona, 592 F.3d 1003, 1007 (9th

6 Cir. 2010) (“If police refuse to investigate or arrest people who commit crimes

against a particular ethnic group, it’s safe to assume that crimes against that group

will rise.”). They also alleged that Oravec, as an agent of the FBI, intentionally

interfered with their access to benefits under victims’ rights statutes, and made

disparaging remarks regarding Native Americans. In addition, Oravec’s supervisor

allegedly ratified his conduct because that supervisor was informed of Oravec’s

“egregious mishandling of Mr. Bearcrane’s case,” yet refused to remedy the

situation. Taken together, these allegations sufficiently raise an inference of

disparate treatment as a result of the FBI’s alleged discriminatory intent. See The

Comm. Concerning Cmty. Improvement, 583 F.3d at 705.

6. Oravec argues that he is entitled to qualified immunity, but he relies

on grounds that were either not raised in the district court, or not addressed by the

district court. We therefore remand this issue to the district court so that it may

decide the issue in the first instance.

7. The Bearcrane Family Members’ motions for judicial notice of a state

document (Dkt. Nos. 32, 33) are DENIED, and Defendants’ motion to strike (Dkt.

No. 36) is therefore DENIED as moot. The Bearcrane Family Members’

unopposed motion to withdraw their motion for judicial notice of a Brown v. Board

7 of Education filing (Dkt. No. 41) is GRANTED, and their motion for judicial

notice of that document (Dkt. No. 34) is thus DENIED as moot.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

The parties shall bear their own costs on appeal.

8

FILED

Cole v. Oravec, No. 14-35664 JUN 26 2017

MOLLY C. DWYER, CLERK

CALLAHAN, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I concur in the panel majority’s finding that the Bearcrane Family Members

lack standing to bring substantive due process and treaty-based claims in their

individual capacities. However, based on the allegations contained in their

complaint, I would hold that the Bearcrane Family Members lack standing to assert

equal protection claims in their individual capacities. Accordingly, I would affirm

the district court’s decision dismissing the claims brought by the Bearcrane Family

Members in their individual capacities for lack of standing, and therefore

respectfully dissent. Moreover, I would affirm the district court’s finding that the

Bearcrane Family Members failed to plausibly allege an equal protection claim in

their individual capacities against the FBI.

The Bearcrane Family Members assert that they have standing to bring equal

protection claims in their individual capacities based on two alleged injuries. First,

they contend that Defendants’ failure to investigate Steven Bearcrane’s death

denied them access to crime victims’ assistance programs. If the death is not

classified as a “crime,” the Bearcrane Family Members are ineligible to receive

benefits under various crime victims’ rights statutes. Second, they argue that

Defendants’ failure to provide adequate law enforcement services to Native

Americans, including them, has denied them the same “basic safety” enjoyed by

1 non-Native Americans. Based on these alleged injuries, the Bearcrane Family

Members brought claims in their individual capacities against the FBI, Agent

Weyand in his official capacity and his individual capacity, and Agent Oravec in

his individual capacity. The majority finds the first injury sufficient to confer

standing. Mem Dispo at 2–3. I am not insensitive to the Bearcrane Family

Members’ loss, but they do not have standing to bring an equal protection claim

arising from their denial of access to possible statutory benefits.

In finding that the Bearcrane Family Members have standing to assert an

equal protection claim based on the denial of benefits under the victims’ rights

statutes, the majority relies on Northeastern Florida Chapter of the Associated

General Contractors of America v. City of Jacksonville, 508 U.S. 656, 666 (1993).

See Mem Dispo at 3. But that case recognized that the injury in fact “in an equal

protection case of this variety is the denial of equal treatment resulting from the

imposition of [a] barrier . . . .” 508 U.S. at 666. In City of Jacksonville, the

“barrier” at issue was a government program which awarded a certain percentage

of contracts to minority-owned businesses. Id. at 658. In finding that the plaintiffs

had standing to challenge this “barrier,” City of Jacksonville looked to several

other cases that found standing based on the inability to be considered for a

government benefit. In Turner v. Fouche, 396 U.S. 346 (1970), the “barrier” was a

“Georgia law limiting school board membership to property owners . . . .” 508

2 U.S. at 664. In Clements v. Fashing, 457 U.S. 957 (1982), the “barrier” was a

“provision of the Texas Constitution, which require[d] the immediate resignation

of some (but not all) state officeholders upon their announcement of a candidacy

for another officer.” 508 U.S. at 664. And in Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), the “barrier” was “a medical school’s

admissions program, which reserved 16 of the 100 places in the entering class for

minority applicants . . . .” 508 U.S. at 665. We have applied the City of

Jacksonville standing analysis “[w]hen a plaintiff brings an equal protection

challenge to a race-conscious program and seeks forward-looking relief . . . .”

Carroll v. Nakatani, 342 F.3d 934, 941 (9th Cir. 2003). In such cases, “the injury

is not the inability to obtain the benefit, but the inability to compete on an equal

footing.” Id. (citing City of Jacksonville, 508 U.S. at 666; Texas v. Lesage,

528 U.S. 18, 21 (1999)).

In Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir. 2008), we

applied this standing analysis to assess whether plaintiffs—an agnostic couple and

a lesbian couple—had standing to challenge the validity of a government contract

with a corporation chartered by the Boy Scouts, a group whose policies expressly

excluded lesbians and agnostics. Id. at 780, 787. Based on their objections to the

Boy Scouts’ stated policies, the plaintiffs would not use the facilities leased and

operated by the corporation. Id. at 780–81, 784. The court found that the plaintiffs

3 did not have standing based on the “policy of granting preferential access to the

Boy Scouts” to use facilities leased from the City of San Diego because the

plaintiffs had no plans to apply for access to those facilities. Id. at 787; see also

Barnes-Wallace v. City of San Diego, 704 F.3d 1067, 1085 (9th Cir. 2012).

These cases do not support the Bearcrane Family Members’ standing to

bring equal protection claims in their individual capacities. In each, the

“discriminatory barrier” at issue was a policy or program that expressly preferred

one group over another. The government action at issue here, however, is not part

of such a program or policy. Instead, the alleged “discriminatory barrier” results

from the FBI administering its cases in a manner which allegedly deprived the

Bearcrane Family Members of the ability to apply for benefits of certain victims’

rights statutes. Whatever claims the Bearcrane Family Members might have, if

any, are not the result of any “discriminatory barrier” of the sort giving rise to an

equal protection claim. Holding otherwise jams a square peg into a round hole,

and distorts this Circuit’s standing jurisprudence.

Moreover, the claims brought by the Bearcrane Family Members in their

individual capacities do not otherwise satisfy the requirements of our Article III

standing analysis. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992). The Bearcrane Family Members’ alleged injury is the curtailment of the

opportunity to seek benefits under the victims’ rights statutes as the result of the

4 FBI’s administration of its cases. This alleged injury is neither “concrete and

particularized,” nor is it “likely to be redressed by a favorable decision of this

court.” Id. Indeed, even if it were ultimately determined that Defendants

interfered with the Bearcrane Family Members’ ability to seek benefits under these

statutes in violation of their equal protection rights under the Fifth Amendment,

such a decision would not give them the benefits of these statutes, or even the

opportunity to seek such benefits, because the court could not direct Defendants to

classify Steven Bearcrane’s death as a crime.

Nor is there a sufficient “causal connection between the injury and the

conduct complained of,” such that the Bearcrane Family Members’ alleged injury

is “fairly traceable to the challenged action of the defendant, and not the result of

the independent action of some third party not before the court.” Id. at 560–61

(internal alterations and quotations omitted). To the contrary, even if the FBI had

investigated Steven Bearcrane’s death in a manner his family found non-

objectionable, his death might still be classified as a non-crime and the Bearcrane

Family Members would still be denied access to the victims’ rights statutes. Thus,

the requisite causal connection is lacking here.

Finally, even if I were to agree with the majority that the Bearcrane Family

Members had standing to assert an equal protection claim in their individual

capacities against the FBI, I would nonetheless find that they did not successfully

5 state a claim upon which relief could be granted, and would affirm the district

court’s dismissal under Rule 12(b)(6). To state such a claim against the FBI, the

Bearcrane Family Members must allege facts demonstrating that the FBI’s actions

“had a discriminatory impact, and that [the FBI] acted with an intent or purpose to

discriminate based upon [the Bearcrane Family Members’] membership in a

protected class.” Comm. Concerning Cmty. Improvement v. City of Modesto,

583 F.3d 690, 702–03 (9th Cir. 2009). Where a “challenged governmental policy

is ‘facially neutral,’ proof of disproportionate impact on an identifiable group, such

as evidence of ‘gross statistical disparities,’ can satisfy the intent requirement

where it tends to show that some invidious or discriminatory purpose underlies the

policy.” Id. (emphasis added). But “official action will not be held

unconstitutional solely because it results in a racially disproportionate impact.

Disproportionate impact is not irrelevant, but it is not the sole touchstone of an

invidious racial discrimination.” Village of Arlington Heights v. Metro. Housing

Dev. Corp., 429 U.S. 252, 264–65 (1977) (internal quotation omitted).

Here, none of the Bearcrane Family Members’ non-conclusory factual

allegations show a pattern and practice of racial discrimination by the FBI, or show

that the FBI acted with an intent or purpose to discriminate against them because

they are Native Americans. Likewise, the statistics presented, while perhaps

demonstrating gross statistical disparities, do not tend to show that the FBI

6 intentionally or purposefully discriminated against the Bearcrane Family Members

based on their membership in a protected class in administering its cases, or that

these statistics result from the FBI’s conduct at all.

I would thus affirm the district court’s dismissal of the Bearcrane Family

Members’ equal protection claim for lack of standing, and for failure to state a

claim upon which relief can be granted.

7