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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

Solomon v. Interior Regional Housing Authority (07/21/2006) sp-6028, 140 P3d 882

     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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