                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                            AUG 15 2002
                        FOR THE TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                  Clerk

PATRICK DEAN COANDO,

           Plaintiff - Appellant,

v.                                            No. 01-4080
                                        (D.C. No. 99-CV-1016-B)
COASTAL OIL & GAS                              (D. Utah)
CORPORATION, Vernal, Utah
Branch Division; DAVE BAINE,
Representative; RONALD GOOD,
Vice President, Purchasing;
WILLIAM G. LAUGHLIN, Attorney,

           Defendants - Appellees.

_____________________________

PATRICK DEAN COANDO,

           Plaintiff - Appellant,
                                               No. 01-8069
v.                                      (D.C. No. 97-CV-1011-D)
                                              (D. Wyoming)
TOM BROWN, INC.; CLIFF
DRESCHER, Vice-President,
Operations, Tom Brown, Inc.,

           Defendants - Appellees.

_____________________________

PATRICK DEAN COANDO,

           Plaintiff - Appellant,              No. 01-8072
                                        (D.C. No. 00-CV-1001-D)
v.                                            (D. Wyoming)
TOM BROWN, INC.; JOHN
SHEPARD; CINDY TURNER;
BRUCE R. DeBOER,

                 Defendants - Appellees.



                              ORDER AND JUDGMENT          *




Before EBEL , HOLLOWAY , and ANDERSON , Circuit Judges.




       After examining the briefs and appellate records, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Plaintiff-Appellant Patrick Dean Coando appeals adverse judgments by the

district court in each of the three above-captioned cases. In March 1997 Plaintiff

brought his first action in the United States District Court in Wyoming against

Defendants-Appellees Tom Brown, Inc. and Cliff Drescher (TBI) over a dispute

arising from TBI’s rejection of Plaintiff’s bid to supply TBI with casing and



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                           -2-
tubing products for TBI’s gas wells on the Wind River Reservation in Central

Wyoming. In December 1999 Plaintiff filed suit against Coastal Oil and Gas and

others (Coastal) in the United States District Court in Utah, based on Coastal’s

refusal to enter into an exclusive contract with Plaintiff to supply Coastal with oil

well casing and tubing products for projects on the Uintah and Ouray

Reservations in Utah. In January 2000 Plaintiff brought his second federal action

against TBI and others in Wyoming, alleging TBI wrongfully rejected Plaintiff’s

demand that TBI make him its exclusive supplier of casing and tubing for projects

on the Wind River Reservation. In each case, Plaintiff alleged multiple violations

of federal law and his constitutional rights. In each case, the district court

dismissed his complaints before trial under either Fed. R. Civ. P. 56 (summary

judgment), or 12(b)(6) (failure to state a claim upon which relief can be granted).

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we have consolidated each

of Plaintiff’s appeals and now dispose of them in this order and judgment.


                                 I. Standard of Review

       “As the sufficiency of a complaint is a question of law, we review    de novo

the district court’s grant of a motion to dismiss pursuant to 12(b)(6), applying the

same standards as the district court.”   Sutton v. Utah State Sch. for the Deaf &

Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation and citation omitted). In

reviewing the court’s decision,

                                           -3-
       all well-pleaded factual allegations in the . . . complaint are accepted
       as true and viewed in the light most favorable to the nonmoving
       party. A 12(b)(6) motion should not be granted unless it appears
       beyond doubt that the plaintiff can prove no set of facts in support of
       his claim which would entitle him to relief.

Id. (quotation and citation omitted).

       Likewise, we review the district court’s grant of summary judgment de

novo. Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000). Summary

judgment is appropriate if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We view the evidence and draw any inferences in a light most

favorable to the party opposing summary judgment, but that party must identify

sufficient evidence that would require submission of the case to a jury.     Anderson

v. Liberty Lobby, Inc.,   477 U.S. 242, 249-52 (1986). Accordingly, summary

judgment is appropriate against any party who “fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”    Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).


                                     II. No. 01-8069

       Plaintiff, an enrolled member of the Eastern Shoshone Tribe, is the operator

of Finally A Casing Service, Inc. (FACS), an oilfield casing and tubing

distribution company that is a Shoshone Tribal Employment Rights Office

(TERO) Certified Indian Contractor qualifying for “Indian Preference Business

                                             -4-
Status” on the Wind River Reservation. TBI, an independent oil and gas

producer, signed an agreement with the TERO agreeing to comply with Tribal

Resolution 4967, which requires all employers operating on the Wind River

Reservation to provide preferential hiring, promotion, and training of certified

Indian contractors and employees.

      In November 1996 Plaintiff sent a letter to TBI introducing himself and

informing TBI of his desire to fulfill TBI’s tubing and casing needs. TBI

responded by inviting Plaintiff to bid on a project to provide over 13,000 feet of

casing. Plaintiff initially objected to the requirement that he bid on the project,

but ultimately bid $126,746. TBI rejected that bid as being unreasonably high,

and accepted a bid by a non-American Indian contractor for $93,700.

      Plaintiff sued, alleging (1) a violation of his equal protection rights, in

contravention of the United States Constitution, an 1868 Treaty between the

United States and the Eastern Shoshone Tribe (1868 Treaty), and Tribal

Resolution 4967; (2) race discrimination; (3) a violation of his rights as a

shareholder in property rights on the Wind River Reservation; (4) a violation of

federal laws mandating Indian hiring preferences; (5) defamation of character;

(6) deprivation of life, liberty and the pursuit of happiness; and (7) breach of the

TERO agreement. The district court entered summary judgment for TBI on all

claims except one, concluding that a material issue of fact remained as to whether

TBI breached the TERO agreement’s preference policies by rejecting Plaintiff’s


                                          -5-
bid on the basis of price before giving him an opportunity to negotiate the price

and reduce his bid to a reasonable amount.

         TBI filed a second motion for summary judgment on the remaining claim

arguing that (1) any attempt to negotiate price with Plaintiff would be futile,   1
                                                                                      and

(2) even if Plaintiff won the bid, his company was technically incompetent to

perform the work and would therefore never have been awarded the contract. The

district court agreed and entered summary judgment against Plaintiff on the final

claim.

         On appeal, Plaintiff makes a number of unsupported allegations of error,

generally attacking the process and outcome of his case. After carefully reading

Plaintiff’s briefs as well as the entire record in this case, we conclude that his

arguments before this court are meritless. The district court gave Plaintiff

significant benefit of the doubt in his pleadings as well as multiple chances to

provide materials in support of his claims. That court carefully reviewed and

addressed each of Plaintiff’s claims as presented in his complaint and materials at



1
        As noted by the district court, at this summary judgment stage Plaintiff
produced no affidavits or other evidence responding to or contradicting TBI’s
motion and, instead, chose to generally criticize TBI’s affidavits as improper.
Relying on Plaintiff’s own statements and conduct demonstrating his refusal to
further negotiate, the district court properly concluded that this question did not
present a genuine issue of material fact.     See Anderson, 477 U.S. at 247-48 (“By
its very terms, [the Rule 56(c)] standard provides that the mere existence of   some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”).

                                             -6-
the summary judgment stage. We see no error, and affirm the court’s decision for

substantially those reasons as stated in orders dated August 26, 1999, and

August 8, 2001.



                                      III. No. 01-4080

       As with energy producers operating on the Wind River Reservation,

producers operating on the Uintah and Ouray Reservations are contractually

obligated to give subcontracting preference to members of the Ute Tribe. In

October 1997 CIG Exploration, Inc. (CIG), Coastal’s predecessor in interest,

entered into a Joint Management Lease with the Ute Tribe. That lease included a

provision that further bound CIG to tribal preference obligations contained in the

Exploration and Development Agreement originally granting CIG the exclusive

right to conduct oil and gas operations on portions of the Uintah and Ouray

Reservations.

       In April 1997 Plaintiff sent a letter to Coastal indicating his desire to enter

into a business relationship.   2
                                    One week later Coastal informed Plaintiff that it

required potential suppliers of tubular goods to qualify before competitively


2
      At the time, Plaintiff had been granted a “Registration of an Indian Owned
and Operated Business” by the Ute Tribe for purposes of tribal preferences on the
Uintah and Ouray Reservations for the period between February 27, 1997 and
February 27, 1998. The record indicates that Plaintiff was denied actual
membership or enrollment into the Ute Tribe. The record also indicates FACS
was involuntarily dissolved by the Utah Department of Commerce on March 1,
1996, for failure to file an annual report.

                                              -7-
bidding on projects. Thus, Coastal requested a copy of Plaintiff’s product

liability insurance policy and audited financial statements. Plaintiff replied in

September 1999, informing Coastal of his tribal preference status (while also

admitting it had expired due to his litigation in Wyoming), asking that he be

Coastal’s exclusive vendor of casing and tubing products, and making various

demands concerning specific terms in the proposed subcontract. In October 1999

Plaintiff sent additional letters to Coastal stating that if he did not receive a

formal response, he would file a civil complaint. Coastal responded by telephone

and by letter, informing Plaintiff once more of its pre-qualification and bidding

requirements and asking for additional information to establish FACS as an

approved vendor qualified to bid on Coastal projects. Plaintiff did not submit the

requested information.

      In December 1999 Plaintiff sued in Utah federal court, alleging violations

of his rights under Article VI and the Fourteenth Amendment of the United States

Constitution. Specifically, Plaintiff alleged that (1) Coastal violated the 1868

Treaty and an 1864 executive order   3
                                         by unlawfully and criminally authorizing

non-Indian businesses to work on the Uintah and Ouray Reservations, thereby

denying Plaintiff an opportunity to work; (2) Coastal failed to comply with tribal

hiring preferences by hiring non-Indian subcontractors, thereby discriminating


3
      The “executive order” attached to Coando’s complaint is in fact an Act of
the Thirty-Eighth Congress to vacate and sell the existing Indian reservations in
Utah and to settle the Indians of that territory into the Uinta Valley.

                                            -8-
against Plaintiff; (3) Coastal unlawfully required Plaintiff to competitively bid on

projects in an attempt to get him to implicitly authorize the criminal trespassing

of non-Indians on reservation land; (4) Coastal unlawfully required Plaintiff to

furnish records and qualify as an approved vendor; and (5) Coastal conspired with

other oil companies (including TBI) to falsely and unlawfully have Plaintiff

arrested and placed in Utah state prison to avoid hiring him.

      Coastal moved to dismiss, or, in the alternative, for summary judgment.

The district court dismissed all five claims for failure to state a claim under

Federal Rule 12(b)(6).

      On appeal, Plaintiff again makes numerous unsupported allegations of error

that we conclude are without merit. As in the previous case, the district court

generously construed Plaintiff’s complaint and carefully addressed each of his

claims. We see no error, and therefore we affirm that court’s decision for

substantially the same reasons as set forth in the district court’s order filed

March 26, 2001.   4




4
       In connection with his appeal in this case, Plaintiff has filed a document
titled “Notification of Action Initiated by Appellees or State Utah Jeopardize
Personal Safety Appellant [ sic ].” At the time of its filing, Plaintiff was
incarcerated in the Central Utah Correctional Facility in Gunnison, Utah (CUCF).
In that document, Plaintiff alleges a particular female guard, formerly a bounty
hunter for the State of Utah, has purposefully obtained employment with the
CUCF to persuade African American inmates to assault Plaintiff and ultimately
prevent his release. Plaintiff claims that this action benefits the State of Utah,
which would otherwise be adversely affected by a decision in this court against
Coastal. We fail to see any merit whatsoever in this attenuated claim. Construing
the document to be a motion requesting some relief by this court, the motion is

                                          -9-
                                 IV. No. 01-8072

      In November 1999, Plaintiff demanded that TBI make him its exclusive

vendor for oilfield casing and tubular products. In accordance with its customary

business practice, TBI responded by asking Plaintiff for verification of his status

as a TERO-certified contractor as well as his technical qualifications, and by

submitting a bid package to him for projects on the Wind River Reservation for

the year 2000. Plaintiff refused to bid on any projects and instead filed suit

against TBI and others in Wyoming federal court.

      In his complaint, Plaintiff again claimed multiple violations of his rights

under Article VI and the Fourteenth Amendment of the United States

Constitution. Plaintiff alleged that (1) TBI violated the 1868 Treaty by hiring

non-Indian vendors to work on the Wind River Reservation; (2) TBI breached its

agreement to abide by Tribal Resolution 4967; (3) TBI defamed Plaintiff by

requesting that he submit technical qualifications and bid sheets; (4) TBI

unlawfully required Plaintiff to competitively bid on projects in an attempt to get


denied.

       On June 13, 2002, Plaintiff also filed a “Motion for Restraining Order and
Included Motion for Immediate Hearing,” in which he requests this court to order
Coastal as well as other non-Indian vendors to cease work on the Uintah
Reservation or, alternatively, to order Coastal to enter into an exclusive contract
with his company. On June 21, 2002, Plaintiff filed a request to expedite that
motion. Because Plaintiff’s motion is based on the same claims that the district
court properly dismissed as meritless, we conclude that those claims also do not
warrant injunctive relief. Therefore, both the June 13 motion and the June 21
request to expedite that motion are denied.

                                        -10-
him to implicitly authorize the criminal trespassing of non-Indians on reservation

land; and (5) TBI libeled/slandered Plaintiff by requesting a restraining order

against him, and that TBI conspired to falsely and unlawfully have him arrested

and incarcerated so as to prevent him from working or filing complaints. In

addition to monetary damages, Plaintiff sought a restraining order against TBI or,

in the alternative, requested the court to order TBI to use FACS as its exclusive

vendor of oilfield casing and tubing products during the pendency of the

litigation.

       TBI moved to dismiss the complaint alleging lack of subject matter

jurisdiction, insufficiency of process and service of process, and failure to state a

claim upon which relief can be granted. The district court granted TBI’s motion,

concluding that dismissal of Plaintiff’s complaint was appropriate under both

Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Consequently, while the court decided that

it lacked subject matter jurisdiction over Plaintiff’s complaint, it nevertheless

analyzed the merits of Plaintiff’s claims and concluded that “[d]ismissal with

prejudice is appropriate because the Court is of the opinion that the Plaintiff

could not assert a meritorious claim based on the facts alleged, and that to allow

Plaintiff the opportunity to amend his Complaint would be futile.” R., Vol. II,

Doc. 28 at 8. Such an analysis and conclusion, however, is contrary to the court’s

decision that it lacked subject matter jurisdiction.   See Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot


                                             -11-
proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the

fact and dismissing the cause.”) (quotation omitted);     Hernandez v. Conriv Realty

Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“Article III deprives federal courts of

the power to dismiss a case with prejudice where federal subject matter

jurisdiction does not exist.”). We conclude that the district court erred in holding

that it had no subject matter jurisdiction over Plaintiff’s complaint. However, we

affirm the district court’s dismissal based upon Plaintiff’s failure to allege facts

upon which relief can be granted.

       Section 1331 of Title 28 of the United States Code confers original

jurisdiction on the district courts to hear civil cases “arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.     5
                                                                                 In many

cases, the threshold issue of whether a complaint raises a colorable federal

question is clearly evident from the language of the complaint itself. In others,

that language may only confuse the matter. Nevertheless, district courts must be

aware of the sometimes fine distinction between a federal claim not wholly

insubstantial and frivolous for jurisdictional purposes, but which nonetheless fails




5
       Plaintiff’s complaint includes a formal jurisdictional statement that
contains a recitation of each parties’ residency. We agree with the district court,
however, that these jurisdictional allegations “neither satisfy the requirement of
complete diversity under 28 U.S.C. § 1332, nor do they suggest that the
jurisdictional amount of $75,000 is met.” R., Vol. 2, Doc. 28 at 4-5.

                                           -12-
as a matter of law on the merits. Language from the Supreme Court’s seminal

case of Bell v. Hood, 327 U.S. 678 (1946), is instructive:

       Before deciding that there is no jurisdiction, the District Court must
       look to the way the complaint is drawn to see if it is drawn so as to
       claim a right to recover under the Constitution and laws of the United
       States. For to that extent the party who brings a suit is master to
       decide what law he will rely upon, and . . . does determine whether
       he will bring a ‘suit arising under’ the . . . [Constitution or laws] of
       the United States by his declaration or bill.”

Bell, 327 U.S. at 681 (quotation and citation omitted). In        Bell, the Court

emphasized the importance that the district court look to the pleader’s purpose for

the suit, holding that “where the complaint . . . is so drawn as to seek recovery

directly under the Constitution or laws of the United States, the federal court, but

for two possible exceptions . . . must entertain the suit.”       Id. at 681-82. “The

reason for this is that the court must assume jurisdiction to decide whether the

allegations state a cause of action on which the court can grant relief as well as to

determine issues of fact arising in the controversy.”         Id. at 682. The Court

concluded:

       Jurisdiction, therefore, is not defeated . . . by the possibility that the
       averments might fail to state a cause of action on which petitioners
       could actually recover. For it is well settled that the failure to state a
       proper cause of action calls for a judgment on the merits and not for
       a dismissal for want of jurisdiction. Whether the complaint states a
       cause of action on which relief could be granted is a question of law
       and just as issues of fact it must be decided after and not before the
       court has assumed jurisdiction over the controversy.

Id.

                                             -13-
       The exceptions noted by the Court in         Bell are that “a suit may sometimes be

dismissed for want of jurisdiction where the alleged claim under the Constitution

or federal statutes clearly appears to be immaterial and made solely for the

purpose of obtaining jurisdiction or where such a claim is wholly insubstantial

and frivolous.”   Id. at 682-83. The Supreme Court has described these

exceptions, going to the substantiality of the federal question, using a variety of

phrases. See Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (collecting cases);

Goosby v. Osser, 409 U.S. 512, 518 (1973) (same). “According to Hagans,            the

[substantial federal question] doctrine will warrant dismissal when the claim is

(1) wholly insubstantial or obviously frivolous, (2) foreclosed by prior cases

which have settled the issue one way or another, or (3) so patently without merit

as to require no meaningful consideration.”         Wiley v. Nat’l Collegiate Athletic

Ass’n, 612 F.2d 473, 477 (10th Cir. 1979).

       Cases in this circuit demonstrate that the district court’s task in assessing

the substantiality of a claim for purposes of jurisdiction can be difficult.     See,

e.g., Junior Chamber of Commerce of Rochester, Inc. v. United States Jaycees,

495 F.2d 883, 886 (10th Cir. 1974). This is especially true in cases, such as this

one, that are brought by pro se litigants who may lack the legal training necessary

to allege any more than facts sufficient to describe his or her alleged injury.

“Under 28 U.S.C. § 1331, federal question jurisdiction must appear on the face of


                                             -14-
a plaintiff’s well-pleaded complaint. The complaint must identify the statutory or

constitutional provision under which the claim arises and allege sufficient facts to

show that the case is one arising under federal law.”      Martinez v. United States

Olympic Comm., 802 F.2d 1275, 1280 (10th Cir. 1986) (citations omitted). While

this court has held that mere allegations as to the presence of an unspecified

federal question is generally insufficient to meet this burden,    see id., it has also

defined the phrase “colorable federal claim” generously and liberally, s     ee Prairie

Band of Potawatomi Indians v. Pierce,       253 F.3d 1234, 1240 (10th Cir. 2001).

       Although this case presents a borderline situation, given the Plaintiff’s pro

se status and the considerable benefit of the doubt we allow for his pleadings, we

conclude that his complaint is not wholly insubstantial and frivolous. Among

other things, Plaintiff’s complaint was drawn alleging facts to claim a right to

recover under the Due Process and Equal Protection Clauses of the United States

Constitution for perceived violations of an 1868 Treaty between the United States

and the Eastern Band Shoshone Indian Tribe. Plaintiff’s assertions involving the

construction of that treaty are a matter of federal concern that conferred

jurisdiction on the district court notwithstanding the failure of those averments to

sustain his cause of action.    See Bell, 327 U.S. at 682; cf. Oneida Indian Nation of

N.Y. v. County of Oneida,      414 U.S. 661, 677 (1974) (holding Indian claim of




                                            -15-
possessory rights to tribal lands, particularly when confirmed by treaty, plainly

asserts controversy arising under § 1331).

       Although the district court erred in concluding that it lacked subject matter

jurisdiction over Plaintiff’s claim, after carefully reviewing the parties’ briefs,   6
                                                                                          as

well as the entire record in this case, we are unpersuaded by Plaintiff’s other

allegations of error. Therefore, we agree with the district court’s analysis and

decision to dismiss Plaintiff’s complaint for failure to state a claim under Rule

12(b)(6).

       The judgments of the United States District Court for the District of Utah

and the District of Wyoming are AFFIRMED. All other outstanding motions




6
       In connection with this appeal, Plaintiff has also filed a motion for
reconsideration of this court’s January 8, 2002 order denying his request for an
extension of time to file a reply brief. Although his request was denied, Plaintiff
filed his “response brief” on January 22, 2002, one month beyond his original
deadline. We deny the motion, noting only that neither the request for
reconsideration nor the reply brief itself provide additional substance to
Plaintiff’s arguments on appeal, or otherwise justify a departure from the court’s
filing deadlines.

                                             -16-
associated with these appeals and not addressed in this order and judgment are

DENIED as moot.



                                                   Entered for the Court



                                                   William J. Holloway, Jr.
                                                   Circuit Judge




                                       -17-
