                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        September 1, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    RICHARD LEE BEAMS,

                Plaintiff - Appellant,
                                                         No. 04-3393
    v.                                            (D.C. No. 03-CV-4072-JAR)
                                                          (Dist. Kan.)
    GALE NORTON, Secretary of
    Department of Interior,

                Defendant - Appellee.




                             ORDER AND JUDGMENT           *




Before SEYMOUR, KELLY, and MURPHY Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Richard Lee Beams appeals from district court orders that dismissed his

Indian Preference Act (IPA) claim for lack of subject matter jurisdiction and

failure to state a claim,   see 25 U.S.C. § 472, and entered summary judgment on

his discrimination and retaliation claims, 29 U.S.C. § 633a; 42 U.S.C. § 2000e-16.

       We review a dismissal for lack of subject matter jurisdiction de novo.

Radil v. Sanborn Western Camps, Inc.       , 384 F.3d 1220, 1224 (10th Cir. 2004)   .

Whether a private right of action exists is a jurisdictional concern,    Hancock v.

Blue Cross-Blue Shield of Kansas, Inc.      , 21 F.3d 373, 374 (10th Cir. 1994), which

turns on “‘whether Congress intended to create the private remedy asserted.’”

Southwest Air Ambulance, Inc. v. City of Las Cruces        , 268 F.3d 1162, 1169 (10th

Cir. 2001) ( quoting Transamerica Mortgage Advisors, Inc. v. Lewis        , 444 U.S. 11,

16 (1979)). As for orders granting summary judgment, our review is de novo,

Alexander v. Oklahoma , 382 F.3d 1206, 1215 (10th Cir. 2004), to determine

whether “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

       After reviewing the parties’ briefs, the record, and the applicable law, we

conclude that the district court did not err in dismissing appellant’s IPA claim and

entering summary judgment on appellant’s discrimination and retaliation claims.


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Accordingly, we AFFIRM the challenged decisions for substantially the same

reasons stated by the district court in its July 30, 2004, and September 7, 2004

orders. 1

                                                    Entered for the Court


                                                    Michael R. Murphy
                                                    Circuit Judge




1
      We decline to adopt that portion of the district court’s July 30, 2004
decision that examines Beams’ IPA claim under Federal Rule of Civil Procedure
12(b)(6) and finds a failure to plead a claim for non-monetary relief under the
Administrative Procedure Act.    See Steel Co. v. Citizens for a Better Env’t , 523
U.S. 83, 94, 101-02 (1998).

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