                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARTIN MARCEAU; CANDICE                          No. 11-35444
LAMOTT; JULIE RATTLER; JOSEPH
RATTLER, JR.; JOHN G. EDWARDS;                   DC No. Civ. 4:02-0073 SEH
MARY J. GRANT; TERRY GRAY; and
DEANA MOUNTAIN CHIEF, on behalf
of themselves and others similarly situated,     MEMORANDUM *

              Plaintiffs - Appellants,

  v.

BLACKFEET HOUSING AUTHORITY;
its board members, SANDRA
CALFBOSSRIBS, KELLY EDWARDS,
and URSULA SPOTTED BEAR; and
MEL MARTINEZ, Secretary,
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, UNITED
STATES OF AMERICA,

              Defendants - Appellees.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                       Argued and Submitted April 10, 2012


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                 Seattle, Washington

Before:      D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.

      In this putative class action, plaintiffs – American Indian individuals whose

homes were built in the late 1970s with the financial assistance of the United States

Department of Housing and Urban Development (“HUD”) – appeal the district

court’s grant of summary judgment in favor of HUD. Because the district court

certified its judgment under Fed. R. Civ. P. 54(b), we have jurisdiction under 28

U.S.C. § 1291. We affirm.

      1.     The district court correctly rejected plaintiffs’ Administrative

Procedure Act (“APA”) claim that HUD, in violation of its statutory and regulatory

authority, required the use of wooden foundations in the construction of plaintiffs’

houses. Civil actions against federal agencies must be “filed within six years after

the right of action first accrues,” 28 U.S.C. § 2401(a); a substantive challenge to an

agency decision as beyond its authority accrues when the disputed decision is first

“appli[ed] . . . to the challenger,” Wind River Mining Corp. v. United States, 946

F.2d 710, 715-16 (9th Cir. 1991). Plaintiffs’ claim against HUD accrued in the late

1970s, when the agency purportedly decided to require wooden foundations. At

that time, plaintiffs knew about the decision and knew that it affected them. Cf. id.

at 715 (agency action not immune from review simply because it occurred “long


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before anyone discovered the true state of affairs”); N. Cnty. Cmty. Alliance, Inc. v.

Salazar, 573 F.3d 738, 743 (9th Cir. 2009) (allowing challenge to 14-year-old

agency action to proceed where plaintiffs could not have known it would affect

them until shortly before filing suit). That plaintiffs may not have immediately

grasped the full impact that HUD’s decision might eventually have on them does

not mean they knew too little in 1980 to bring an APA challenge.

      2.     The district court also correctly rejected plaintiffs’ claim that HUD

wrongly denied, or failed to respond to, various requests made by individual

homeowners and by their Indian housing authority for HUD’s assistance in

repairing and maintaining the houses. Agency inaction can support a claim under

the APA, see 5 U.S.C. § 706(1), but only where the action is “legally required.”

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64-65 (2004) (emphasis in

original). Plaintiffs identified several instances in which HUD officials were

alerted to the problems plaintiffs face as a result of the wooden foundations used in

the construction of their homes, but no instances in which HUD failed to comply

with a specific obligation imposed by law.

AFFIRMED.




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