NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THERESA CARSTEN,

 Plaintiff - Appellant,

 v.

INTER-TRIBAL COUNCIL OF 

NEVADA; et al.,

 Defendants - Appellees.

No. 13-16985

D.C. No. 3:12-cv-00493-MMDWGC

MEMORANDUM*

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.

FILED

MAR 26 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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
3

(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 
4

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).