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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Solomon v. Interior Regional Housing Authority (07/21/2006) sp-6028
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| VERNON SOLOMON, | ) |
| ) Supreme Court No. S- 11665 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-03-1407 CI |
| ) | |
| INTERIOR REGIONAL HOUSING | ) |
| AUTHORITY, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6028 - July 21, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Michael J. Walleri, Law Offices
of Michael J. Walleri, Fairbanks, for
Appellant. Daniel E. Winfree, Winfree Law
Office, Fairbanks, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Vernon Solomon filed suit in federal court against the
Interior Regional Housing Authority (IRHA), alleging violations
of a federal Indian employment preference and of Alaska workers
compensation law. The federal court found that the statute
created no private cause of action, dismissing Solomons federal
claims with prejudice and dismissing his state law claims without
prejudice. Solomon appealed the federal claim to the Ninth
Circuit, which affirmed. Four months after the Ninth Circuit
denied his motion for reconsideration, Solomon filed his Alaska
law claim in state court. The superior court found Solomons
claim to be time-barred and granted IRHAs motion for summary
judgment. Solomon appeals.
This case presents us with the question whether equity
will toll the statute of limitations on a litigants state law
claims while the litigant pursues a related federal claim in
federal court. Because we conclude that the statute of
limitations is equitably tolled in this case, we reverse the
judgment of the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
Solomon, an Athabascan Alaska Native, was employed by
IRHA as a maintenance foreman prior to and during 1990. In that
year, he was injured in an on-the-job automobile accident, filed
a workers compensation claim, and received benefits. Solomon did
not return to work. In October 1996 Solomon applied for an
advertised Maintenance Counselor position with IRHA in Fort Yukon
but was not hired. Marvin Carroll, also an Alaska Native, was
hired instead. In October 1998 Solomon applied for an advertised
Tribal Housing Officer position but was not hired. Tom Chapin, a
non-Native, was hired instead.
In August 1999 Ted Charles, formerly IRHA Director of
Tribal Planning and Development, circulated a letter regarding
IRHA hiring practices.1 Solomon, alerted by this letter to
potential discrimination-in-hiring claims against IRHA, retained
counsel, who sent a notice-of-claim letter to IRHA on September
9, 1999. No satisfaction followed. On January 13, 2000 Solomon
filed an action against IRHA in the United States District Court
for the District of Alaska. The complaint alleged (1) violation
of the Indian employment preference in the Indian
Self-Determination and Employment Act (ISDA);2 and (2)
retaliation against a workers compensation claimant in violation
of AS 18.55.966.
On June 19, 2001 the federal district court held that
no private right of action existed under ISDA. The court granted
summary judgment to IRHA, dismissed Solomons federal claim with
prejudice, and dismissed Solomons state law claims without
prejudice. Solomon appealed the district courts order to the
United States Court of Appeals for the Ninth Circuit on July 23,
2001. The Ninth Circuit panel affirmed the district court on
December 20, 2002.3 Solomon moved for reconsideration; the Ninth
Circuit denied the motion on April 21, 2003.
B. Proceedings
Solomon filed his state law claims in the superior
court on June 23, 2003. After ordering supplemental briefing
regarding automatic reinstatement of supplemental claims upon
remand, the superior court granted IRHAs motion for summary
judgment. Final judgment, including a judgment of $9,663.75 in
attorneys fees, was ordered in favor of IRHA on August 19, 2004.
Solomon appeals.
III. STANDARD OF REVIEW
We use our independent judgment in reviewing the
application of a statute of limitations, which is a matter of
law.4 Alaska look[s] upon the defense of statute of limitations
with disfavor and will strain neither the law nor the facts in
its aid.5 Although the date on which a statute of limitations
begins to run is normally a question of fact, where, as here,
there is no dispute over the relevant facts, the date becomes a
question of law to which we will apply our independent judgment.6
As this matter is before us on summary judgment, we will draw all
reasonable inferences in favor of the non-prevailing party,
Solomon.7
IV. DISCUSSION
A. Solomons Claim Accrued on September 9, 1999, and the
Statute of Limitations Would Normally Have Run on
September 9, 2001.
The parties agree that September 9, 1999 the date of
Solomons notice-of-claim letter to IRHA is the date of accrual
of Solomons state law claims.8 They likewise agree that these
claims were subject to a two-year statute of limitations under AS
09.10.070(a), which provides a two-year limitation period for
claims based on statute. Consequently, the parties agree that
the statute of limitations on Solomons state law claims would
have run on September 9, 2001, absent statutory or equitable
tolling. We accept this date as the starting point of our
analysis.
B. Solomons Claims Are Eligible for Equitable Tolling.
Solomon argues that this court should equitably toll
the statute of limitations to allow his claims to proceed. He
maintains that his active pursuit of the claims in federal court
represented diligent prosecution of those claims. IRHA argues
that Solomon chose a specific litigation and appellate strategy
that did not work, and . . . now wants this court to rescue him
from his statute of limitations predicament through . . .
misapplication of an equitable remedy. In our view, Solomons
actions are redolent of diligent and good-faith pursuit of his
claims rather than strategy.
Alaska adopted the doctrine of equitable tolling in
Gudenau & Co. v. Sweeney Insurance, Inc.9 The need for equitable
tolling arises, we stated, when a plaintiff has multiple legal
remedies available to him. Courts will not force a plaintiff to
simultaneously pursue two separate and duplicative remedies.10 We
adopted a three-part test for equitable tolling: (1) the
alternative remedy must give notice to the defendant; (2) there
must not be prejudice to the defendant; and (3) the plaintiff
must have acted reasonably and in good faith.11 In Gudenau, we
declined to invoke equitable tolling where the plaintiff made
only private complaints insufficient to give the defendant notice
of existence of a legal claim against him. We stated that the
statute of limitations is tolled only for those who initially
pursue their rights in a judicial or quasi-judicial governmental
forum.12 We have subsequently characterized the equitable tolling
rule as look[ing] only to the claimants circumstances whether he
has pursued an alternative remedy that proved unavailing.13
In Dayhoff v. Temsco Helicopters, Inc., we invoked
equitable tolling because the plaintiff had pursued her wage-and-
hour claim with a state agency before seeking the assistance of
the state court.14 In Fred Meyer of Alaska, Inc. v. Bailey, we
invoked equitable tolling when the plaintiff pursued an
individual action for the same unpaid wages he had sought
initially in a class action.15
Solomons initial action was an alternative remedy to
pursuit of the claims in state court. There is no dispute here
that the federal courts constitute a judicial . . . governmental
forum,16 or that Solomon initially filed his state law claims in
the federal courts. IRHA argues, however, that Solomon failed to
appeal the dismissal of his state law claims to the Ninth Circuit
and thus gave up his pursuit of alternative remedy at that point.
We disagree. Even though Solomon did not explicitly appeal the
dismissal without prejudice, a prayer for reinstatement of the
state law claims was implied in Solomons appeal to the Ninth
Circuit, much as reversal of the judgment of attorneys fees is
implied in the present appeal.17 We read IRHAs argument as
suggesting, in effect, that this case turns on mere inclusion of
a boilerplate sentence in Solomons appeal. As the superior court
noted, Solomon could have written one more sentence in [his]
brief and it would have been there. To bar Solomons claims for
something so ministerial, we believe, would be an unnecessary
exaltation of form over substance. Whether Solomons state claims
were carried up to the Ninth Circuit or not, his appeal to the
Ninth Circuit is an alternative remedy under our equitable
tolling doctrine.
Gudenaus three additional requirements for equitable
tolling are met. First, IRHA had adequate notice of the claim
against it. Where a claim with essentially the same facts is
being litigated even on a threshold basis in the federal courts
between the same parties, the defendant cannot claim not to be on
notice. Even while the case was being litigated before the
federal courts, IRHA knew of the distinct possibility that the
state claims would be reinstated at the district court level upon
a Ninth Circuit reversal. As such, it was on notice to be
prepared to litigate them.
Second, IRHA does not have a colorable claim of
prejudice. It appears instead that IRHA fully investigated the
matter, at least in regard to the position for which Solomon
applied in 1998. It told Solomons counsel that Mr. Solomon was
not selected for the position of Tribal Housing Counselor based
on an evaluation of his qualifications and experience. The fact
that Mr. Solomon had filed a workers compensation claim was not
the reason that he was not hired. At oral argument, counsel for
IRHA indicated that he had no information indicating prejudice to
IRHA.
Third, the record indicates that Solomon acted
reasonably and in good faith. IRHAs allegations of bad faith
allege only that Solomon failed to file his complaint within the
applicable statute of limitations. As Solomons counsel noted at
oral argument, Solomon has been actively litigating his claims
except for periods totaling six months in the six years since his
claims accrued. Solomons federal case was one of first
impression; thus, even though he had no federal cause of action,
his lawsuit was far from frivolous. In Fred Meyer we held that
filing the complaint within the statutory period was evidence of
good faith; the same is true here.18
IRHA argues that, even if equitable tolling is to be
applied, Solomon should be granted only the remainder of his two-
year statute of limitations rather than an additional two years
as the plaintiff received in Dayhoff and Fred Meyer.19 This
remainder, IRHA argues, would be twenty months from the date of
the federal district courts dismissal without prejudice of
Solomons state law claims, since Solomon filed his original
action four months after the cause of action accrued. Twenty
months from June 22, 2001, is February 22, 2003, four months
before Solomon filed his action in the superior court. Solomon
argues that he should be granted a full two years from the Ninth
Circuits denial of his motion for reconsideration on April 21,
2003.
Although we have uniformly applied a new full statutory
period in equitable tolling cases, IRHA argues that the cases in
which we did that may be distinguished from the present case. We
need not decide in this case whether a plaintiff will always have
the full statutory limitations period in which to file once the
circumstances that justify equitable tolling abate, because here
we agree with Solomon that the earliest equitable tolling should
cease is the date of the Ninth Circuits denial of his motion for
reconsideration. Four months passed between the accrual of
Solomons claim on September 9, 1999 and the filing of the federal
complaint on January 13, 2000. At the time tolling ceased, on
April 21, 2003, twenty months remained on the statute of
limitations even under IRHAs restrictive reading. Since Solomons
complaint was filed on June 22, 2003 he is well within the
statutory period, however it is calculated, and his claims were
timely filed.20
V. CONCLUSION
Because the statute of limitations on Solomons claims
for unlawful retaliation was equitably tolled by pursuit of an
alternative remedy in the federal courts, Solomons claims were
timely filed. Accordingly we REVERSE the judgment of the
superior court, VACATE its award of attorneys fees, and REMAND
for trial on the merits.
_______________________________
1 Charles was involved in a separate dispute with IRHA,
the subject of Charles v. Interior Regional Housing Authority, 55
P.3d 57 (Alaska 2002). Charles stated that he determined Solomon
to be the most qualified applicant for the position but that his
supervisor told me that I should not hire Mr. Solomon because he
had filed a workmans compensation claim against IRHA in the past.
2 25 U.S.C. 450e(b) (2000).
3 Solomon v. Interior Regl Hous. Auth., 313 F.3d 1194
(9th Cir. 2002).
4 Alderman v. Iditarod Props., Inc., 104 P.3d 136, 140
(Alaska 2004).
5 Fred Meyer of Alaska, Inc., v. Adams, 963 P.2d 1025,
1027 n.6 (Alaska 1998) (citing Tipton v. ARCO Alaska, Inc., 922
P.2d 910, 912-13 (Alaska 1996), and Lee Houston & Assocs., Ltd.
v. Racine, 806 P.2d 848, 854-55 (Alaska 1991)).
6 See Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1031
(Alaska 2002).
7 See Moore v. Allstate Ins. Co., 995 P.2d 231, 233
(Alaska 2000).
8 This date, or one near it, would likely be the date of
accrual under the discovery rule, under which the statute of
limitations is tolled where the plaintiff, by exercising
reasonable diligence, could not have discovered essential
information bearing on his or her claim. Kaiser v. Umialik Ins.
Co., 108 P.3d 876, 882 (Alaska 2005) (quoting Abbott v. State,
979 P.2d 994, 998 (Alaska 1999) (applying federal law)).
9 736 P.2d 763 (Alaska 1987).
10 Id. at 768.
11 Id.
12 Id.
13 Kaiser, 108 P.3d at 880.
14 772 P.2d 1085, 1087-88 (Alaska 1989).
15 100 P.3d 881 (Alaska 2004).
16 Gudenau, 736 P.2d at 768.
17 Solomon argues that his state law claims would have
automatically been reinstated at the district court level upon a
Ninth Circuit victory; IRHA argues that it is a discretionary
call. We do not decide the issue. It is sufficient that such
relief was available. Moreover, the federal supplemental
jurisdiction statute requires that the federal district court
articulate compelling reasons for declining supplemental
jurisdiction absent conditions that would not be present here.
See 28 U.S.C. 1367(c)(4) (2000).
18 Fred Meyer, 100 P.3d at 887.
19 Id.; Dayhoff, 772 P.2d at 1088 n.6.
20 This conclusion regarding equitable tolling makes it
unnecessary for us to resolve the parties arguments under
Alaskas savings statute or under federal law. Additionally, of
course, the superior courts award of attorneys fees to IRHA must
be vacated.
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