664 F.2d 265 (Fed. Cir. 1981), 772-71, Mitchell v. United States

Docket Nº:772-71 to 775-71.
Citation:664 F.2d 265
Party Name:Helen MITCHELL, et al. v. The UNITED STATES.
Case Date:October 21, 1981
Court:Court of Federal Claims

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664 F.2d 265 (Fed. Cir. 1981)

Helen MITCHELL, et al.



Nos. 772-71 to 775-71.

United States Court of Claims

Oct. 21, 1981

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Charles A. Hobbs, Washington, D. C., attorney of record for plaintiffs; Wilkinson, Cragun & Barker and Jerry R. Goldstein, Washington, D. C., of counsel.

George R. Hyde, Washington, D. C., with whom was Asst. Atty. Gen. Carol E. Dinkins, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, COWEN, Senior Judge, DAVIS, NICHOLS, KUNZIG, BENNETT and SMITH, Judges, en banc.


DAVIS, Judge:

In United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980), the

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Supreme Court reversed and remanded our prior decision in 219 Ct.Cl. 95, 591 F.2d 1300 (1979). We had held that plaintiff Indians could sue the United States for breach of trust relating to federal management of their forest properties, under the trust created in the General Allotment Act, 25 U.S.C. ss 331-354, but the Supreme Court ruled, to the contrary, that the trust established by that Act did not extend to the management of the allotted lands. 1 The case was remanded to this court to consider plaintiffs' other grounds (which we had not reached) for asserting that the Government is liable in money damages for the alleged mismanagement. 445 U.S. at 546 n.7, 100 S.Ct. at 1356 n.7. On remand, we had argument en banc and, except for specified issues, reargument en banc. We now hold that plaintiffs are entitled to proceed on most, but not all, of their specific claims (apart from the rejected broad-scale claim under the General Allotment Act). Accordingly, we deny, in largest part, defendant's motion to dismiss.


The now relevant facts and allegations are set forth in the Supreme Court's opinion, 445 U.S. at 536-537, 100 S.Ct. at 1351-1352 and our previous decision, 219 Ct.Cl. at ---, 591 F.2d at 1300-1301. The claims are by Indian allottees of trust lands and timber on the Quinault reservation and by the tribe itself, under the Tucker Act, 28 U.S.C. s 1491 (1976), and its counterpart for Indian tribal claimants, 28 U.S.C. s 1505 (1976). The land is heavily timbered and under various statutes the Federal Government manages it, receives powers of attorney from Indian allottees, contracts for harvesting of timber, and pays the money proceeds to the allottees. Plaintiffs seek to recover from the United States for various alleged deficiencies, including failure to obtain fair market value for timber sold, failure to manage the forests on a sustained yield basis and to rehabilitate the land after logging, failure to obtain any payment or proper payment for some merchantable timber, failure to develop a proper system of roads and easements and exacting improper charges in connection with roads and easements, failure to pay any interest or sufficient interest on monies and funds, exacting excessive administrative fees and charges, and failure to exercise proper care in granting patents to Indians.

Defendant's motion before us asserts that we have no authority to consider these nonconstitutional claims against the United States, except perhaps for any which may truly relate to plaintiffs' own monies which have been actually retained or deducted by the Government.


The barrier defendant sees is that, in its view, Congress has not consented to such a suit here, either in 28 U.S.C. s 1491 or s 1505, or through any other statute or regulation which plaintiffs invoke. The concept has been phrased in different ways, but the Supreme Court has firmly established that, for a suit against the United States, there must be a waiver of sovereign immunity shown by "clear congressional consent." United States v. Mitchell, 445 U.S. at 538, 100 S.Ct. at 1352. For claims not resting on a contract or for the return of money paid to the Government, but, rather, directly founded on or arising under the Constitution, statutes, regulations, or executive orders, the claimants-Indian or not, individual or tribal-must "look beyond (28 U.S.C. ss 1491, 1505) for a waiver of sovereign immunity with respect to their claims." Id., at 538-540, 100 S.Ct. at 1352-1353. Those substantive rights against the Government for monetary relief must exist apart from ss 1491 and 1505. To allow the claim here in those instances, the Constitution, statute, regulation or order must be capable of being fairly "interpreted as mandating compensation by the Federal

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Government for the damage sustained." United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). It is not enough that the statute (for instance) may ground a claim for specific relief (e. g. injunction, mandamus, or direct statutory review); it is also necessary, for action in this court, that the substantive right granted by Congress extend to entitlement to compensation or money damages. Cf. United States v. Testan, supra, 424 U.S. at 401-02, incl. n.5, 96 S.Ct. at 954-55, incl. n.5; Eastport S. S. Corp. v. United States, 178 Ct.Cl. 599, 608-09, 372 F.2d 1002, 1009-10 (1967).

It is not required, however, that the statute, regulation, or order itself specify that the claimant can bring a lawsuit for compensation in this court (or in the district court if under $10,000). If the source of the substantive right can be fairly read as mandating compensation by the Government, it is needless for Congress to add expressly in that statute that suit may be maintained in this court (or elsewhere) to obtain such monetary compensation. The Tucker Act (28 U.S.C. s 1491) and 28 U.S.C. s 1505 perform that function of giving Congressional consent to jurisdiction in this court over such pecuniary claims. Classic instances of legislation directing compensation, and therefore grounding suit in this court, are the statutes providing for military and civilian pay and allowances (which have not, of course, themselves mentioned suit or the right to sue). 2 Aside from the few instances of gratuitous benefits in which Congress has provided against any judicial scrutiny at all (e. g. veterans' benefits), a clear showing that legislation directs compensation or money to be paid to the claimant is enough warrant for a suit in this court under ss 1491 and 1505.

Nor do we think that the only statutes 3 mandating compensation are those which expressly authorize the payment of the money sought (and proved). As we understand them, neither Testan nor Mitchell, supra, excludes all non-express indications of the right to compensation, no matter how strong or compelling they may be. Both opinions teach us to look hard and carefully to see whether the statute should fairly be read as mandating compensation-i. e., that reading should be strong and clear-but the Supreme Court's decisions do not say that the substantive right to money must always be explicitly stated in the substantive legislation itself. The overriding principle, rather, is that the statute should be read "with that conservatism which is appropriate in the case of a waiver of sovereign immunity" United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). In Testan, for instance, the Court considered all the factors, including but not limited to the absence of an express legislative statement that pay is due for improper classification and the established rule that one is not entitled to the benefit of a position to which one has not been appointed, in deciding that neither the Classification Act nor the Back Pay Act mandated or allowed compensation in those circumstances. Mitchell spoke of "clear" Congressional consent (445 U.S. at 538, 100 S.Ct. at 1352) and, employing that standard, concluded that the present plaintiffs have no substantive right at all under the General Allotment Act with regard to the alleged mismanagement of their forests and property for which they have brought suit. See note 1, supra. Neither ruling laid down the inexorable requirement of express statement in the legislation of the right to monetary compensation. The only inescapable principle is that Congress's waiver of sovereign immunity with respect to money compensation must be clear or strong before

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the court can say that the statute mandates compensation. 4


In Mitchell the Supreme Court remanded to us the question whether the other statutes on which these Indians rely created or recognized fiduciary responsibility on the part of the Government for management of the forest lands, or otherwise render the United States liable in money damages for the alleged mismanagement. In this Part III, we consider the three of those statutes which deal directly with federal management of the plaintiffs' forests and lands. 5 These three are: the so-called 1910 Act, 25 U.S.C. ss 406-407 (1976) (timber sales); 25 U.S.C. s 466 (1976) (regulations and sustained yield); and 25 U.S.C. ss 318a, 323-325 (1976) (rights-of-way). We hold that (a) these statutes, giving federal officials full authority to manage Indian forest property and land, created a fiduciary relationship; (b) plaintiffs can recover (if they prove their case) for breach of these fiduciary obligations and obtain the compensation provided by the statutes; but that (c) the recovery will not necessarily be equivalent to that imposed on a private trustee managing his beneficiary's property, but will be limited in reach and scope, though more extensive than defendant would allow.

A. The Government's supervision and control of the harvesting of Indian timber for the Indians' benefit-including the impact of the particular statutes invoked by plaintiffs and the regulations under them-has recently been reviewed in detail by the Supreme Court, White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145-148, 100 S.Ct....

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