                               NOT FOR PUBLICATION                         FILED
                        UNITED STATES COURT OF APPEALS                      MAR 26 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


THERESA CARSTEN,                                   No. 13-16985

           Plaintiff - Appellant,                  D.C. No. 3:12-cv-00493-MMD-
                                                   WGC
  v.

INTER-TRIBAL COUNCIL OF                            MEMORANDUM*
NEVADA; et al.,

           Defendants - Appellees.

                       Appeal from the United States District Court
                                for the District of Nevada
                         Miranda Du, District Judge, Presiding

                          Argued and Submitted March 13, 2015
                                San Francisco California

Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.

       Theresa Carsten appeals the district court’s order dismissing her claim of

alleged violation of the Family Medical Leave Act (FMLA) by her individual

supervisors and her employer, the Inter-Tribal Council of Nevada (ITCN). We

review the district court’s determination that it lacks jurisdiction because of tribal


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sovereign immunity de novo. Maxwell v. Cnty. of San Diego, 708 F.3d 1075,

1081-82 (9th Cir. 2013). We reverse and remand for jurisdictional discovery.

      The district court correctly held that the FMLA does not abrogate tribal

sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59

(1978). Accordingly, Carsten’s claim against ITCN is barred if ITCN is an arm of

a tribe acting on behalf of the tribe and therefore has tribal sovereign immunity.

See White v. Univ. of Cal., 765 F.3d 1010, 1025 (9th Cir. 2014) (“Tribal sovereign

immunity not only protects tribes themselves, but also extends to arms of the tribe

acting on behalf of the tribe.”). After the district court dismissed Carsten’s claim,

this court issued its decision in White, which set out a test for determining whether

an entity is an “arm of the tribe.” Id. Because the district court did not have the

benefit of White’s guidance at the time it issued its decision, we remand so that the

parties can conduct jurisdictional discovery into the White factors, and so the

district court can evaluate in the first instance whether ITCN is an arm of a tribe

under White.

      Carsten’s complaint also named two of her supervisors, Risa Stearns




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(incorrectly sued as Sterns) and Daryl Crawford, as defendants.1 Although tribal

sovereign immunity extends to tribes’ employees sued in their official capacities, it

does not prevent suits against those same employees when sued in their individual

capacities. See Maxwell, 708 F.3d at 1088. An employee may be sued in his or

her individual capacity even when the suit arises out of actions taken in the

employee’s official capacity if the remedy sought is against the individual. See id.

at 1088-89. As it is not clear on the current record whether Stearns and Crawford

are being sued in their individual capacities or their official capacities, we remand

for further proceedings on this issue.

      If Stearns and Crawford are being sued in their individual capacities, we also

leave it to the district court to determine in the first instance whether the FMLA

applies to tribes. See Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113,

1115-16 (9th Cir. 1985) (stating the rule for determining the applicability of

general statutes to tribes).2 Although, as stated above, the FMLA does not

      1
              On March 6, 2015, ITCN filed a notice of suggestion of death of Risa
Stearns. We leave it to the district court, after determining the nature of Carsten’s
suit against Stearns, to direct appropriate proceedings.
      2
              As the district court correctly pointed out, whether a statute abrogates
tribal sovereign immunity and whether a statute applies to tribes are two distinct
inquiries. A statute that does not fit under one of the three exceptions listed in
                                          3
abrogate tribal sovereign immunity, its applicability to tribes would be relevant to

whether Stearns and Crawford could be sued as individual employers acting “in the

interest of” ITCN. 29 U.S.C. § 2611(4)(A)(ii)(I).

      REVERSED AND REMANDED.




Coeur d’Alene still applies to a tribe even if the tribe has immunity from certain
types of lawsuits. In that situation, actions enforcing the statute against the tribe
could be brought, for example, by the United States, see Coeur d’Alene, 751 F.2d
at 1115-18 (involving an appeal by the federal Secretary of Labor), or in suits for
prospective injunctive relief against tribal officials, see Big Horn Cnty. Elec.
Coop., Inc. v. Adams, 219 F.3d 944, 954 (9th Cir. 2000) (applying the Ex Parte
Young framework to tribal officers).

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