Edward Peruta v. County of San Diego
781 F.3d 1106
9th Cir.
2015
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Docket

Edward PERUTA; Michelle Laxson; James Dodd; Leslie Buncher, Dr.; Mark Cleary; California Rifle and Pistol Association Foundation, Plaintiffs-Appellants, State of California, Intervenor-Pending, v. COUNTY OF SAN DIEGO; William D. Gore, individually and in his capacity as Sheriff, Defendants-Appellees.

No. 10-56971.

United States Court of Appeals, Ninth Circuit

March 26, 2015

THOMAS, Chief Judge:

on behalf of an Indian tribe.11

(b) Before undertaking any action in accordance with paragraphs (a) and (c) of this section, HUD will notify the recipient in writing of the actions it intends to take and provide the recipient an opportunity for an informal meeting to resolve the deficiency. In the event the deficiency is not resolved, HUD may take any of the actions available under paragraphs (a) and (c) of this section. However, the recipient may request, within 30 days of notice of the action, a hearing in accordance with § 1000.540. The amount in question shall not be reallocated under the provisions of § 1000.536, until 15 days after the hearing has been held and HUD has rendered a final decision.

(c) Absent circumstances beyond the recipient‘s control, when a recipient is not complying significantly with a major activity of its [Indian Housing Plan], HUD shall make appropriate adjustment, reduction, or withdrawal of some or all of the recipient‘s subsequent year grant in accordance with this section.

(Emphasis added).

Subsection 1000.532(b) (2012) plainly provided for a hearing only if the tribe “request[s one], within 30 days of notice of the action.” HUD argues that even if it did act under § 4165 and § 1000.532(b) (2012), it did not violate any hearing requirements because Crow Housing did not request a hearing. We agree. Crow Housing‘s briefing points to no such request, it was unable to identify any request at oral argument, and we could find none in the record. Because Crow Housing did not request a hearing, we cannot say that HUD violated its statutory obligation under § 4165, and we hold that HUD did not improperly deprive Crow Housing of a hearing under the facts of this case.

CONCLUSION

The district court erred by ruling that HUD violated Crow Housing‘s right to NAHASDA‘s notice and hearing requirements under § 4161 and § 4165. We therefore VACATE the district court‘s order remanding the case to HUD for a hearing, REVERSE the district court‘s judgment, and REMAND for judgment to be entered in favor of HUD.

VACATED, REVERSED, AND REMANDED.

ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion and order denying motions to intervene shall not be cited as precedent by or to any court of the Ninth Circuit.

Notes

11
Crow Housing does not argue that it has already expended grant funds.