HLD, v. 28, n. 3 (March 2000)
Circuit Holds That Native Hawaiian Health Care Act Does Not Confer Private
Congress enacted the Native Hawaiian Education Act ("NHEA"),
20 U.S.C. �� 7901-7912, to authorize and develop educational programs, to
provide direction to local, state, and federal agencies, and to encourage
Native Hawaiians to participate in the planning and management of Native
Hawaiian education programs. Congress enacted the Native Hawaiian Health Care
Act ("NHHCA"), 42 U.S.C. �� 11701-11714, to similarly benefit Native
Hawaiians through funding for various healthcare programs and authorization for
the creation of a comprehensive healthcare plan for Native Hawaiians.
Elizabeth S. Burgert and others ("plaintiffs") initiated a
class action lawsuit in federal district court in Hawaii against the Lokelani
Bernice Pauahi Bishop Trust and its trustees ("defendants"). The last direct
descendant of King Kamehameha I had established the trust to fund the education
and upbringing of Native Hawaiians. Plaintiffs brought their suit under the
NHEA and the NHHCA, alleging that defendants had misused federal funds in
violation of federal and state law. The court entered judgment in favor of defendants, finding that the NHEA and the NHHCA do not create private rights of actions. Plaintiffs appealed.
The Ninth Circuit affirmed the lower court's
decision after reviewing the facts in light of Cort v. Ash, 422 U.S. 66
(1975) (providing four factors for determining whether private rights of action
may be inferred from statutes). The appeals court explained that, although Cort
had listed four determinative factors, subsequent case law had focused on "the
central question [of] congressional intent." See California v. Sierra Club,
451 U.S. 287 (1981); Cannon v. University of Chicago, 441 U.S. 677
(1979). Focusing on this factor, the appeals court agreed with the lower
court's determination that, "while both the NHEA and the NHHCA clearly intend
to confer benefits on Native Hawaiians, there is no language in the text of
either statute expressing an intent to confer rights that can be judicially
enforced by individual Native Hawaiians." The appeals court observed that the
legislative history of the statutes also did not support an implied private
right of action, noting that, to the contrary, the Senate had stated that "'the
United States is the only party with specific standing to sue in federal courts
to enforce the provisions of the trust.'"
Accordingly, the Ninth Circuit affirmed the lower court's
grant of defendants' motion to dismiss.
Burgert v. Bishop Trust, No. 98-16238, 2000 WL 60188
(9th Cir. Jan. 26, 2000) (5 pages).
Health Lawyers thanks Michael D. Roth, of the Law Offices of
Michael Dundon Roth, in Los Angeles, California, for sending in a copy of this