Eluska v. Andrus, 77-2072

• Decision Date: 11 December 1978
• Docket Number: No. 77-2072,77-2072
• Parties: Heldina ELUSKA, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Cecil D. ANDRUS, Individually and in his official capacity as Secretary of the Interior of the United States of America, and the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 996

587 F.2d 996

Heldina ELUSKA, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Cecil D. ANDRUS, Individually and in his official capacity as Secretary of the Interior of the United States of America, and the United States of America, Defendants-Appellees.

No. 77-2072.

United States Court of Appeals Ninth Circuit.

Dec. 11, 1978.

Michael J. Frank, Gregory M. O'Leary, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiffs-appellants.

Charles E. Biblowit, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before WRIGHT, GOODWIN and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Appellant brought a class action seeking declaratory and injunctive relief against the Secretary of the Interior on behalf of herself and other Alaska Natives whose allotment claims under the Alaska Native Land Allotment Act ¹ (ANLAA) had been denied. She appeals from a judgment and order denying her motion for summary judgment and remanding the case to the Interior Board of Land Appeals (IBLA) for an oral hearing in accordance with Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976) (Pence I ).

We find that the judgment is not final within the meaning of 28 U.S.C. § 1291 (1970), nor is it reviewable as an interlocutory order denying injunctive relief under § 1292(a)(1). We conclude that this court lacks jurisdiction to hear the appeal.

BACKGROUND

Appellant Heldina Eluska, an Alaska Native, applied for two 80-acre parcels of Alaska land pursuant to relevant provisions of the ANLAA. The Act, now repealed, but with a saving clause for applications pending on December 19, 1971, allowed qualified Alaska Natives to acquire title to up to 160 acres of designated Alaska lands. ANLAA § 270 1.

The Bureau of Land Management (BLM) conducted a field examination of the land and granted the application for one 80-acre parcel. It rejected the application for the second 80-acre parcel because its investigation had not revealed evidence of substantial use and occupancy for five years by Eluska.

Eluska appealed the BLM's decision to the IBLA, arguing primarily that the five-year use and occupancy requirement applies only to allotments of land within national forests. She contended that she is exempt from the requirement because the land she claims is not within a national forest. The IBLA rejected her arguments in Heldina Eluska, 21 I.B.L.A. 292 (1975).

She then initiated this action in district court on behalf of herself and all Alaska Natives who have filed applications for allotments and have been notified that the BLM has rejected their claims or is likely to do so.

She asserted that:

(1) the five-year requirement does not apply to applications for allotments of lands lying outside national forests;

(2) in conducting the field examination of the land she claims, the BLM did not consider customary seasonal use and occupancy patterns of Alaska Natives; ²

(3) the BLM should interpret its regulations to allow applicants to show use and occupancy within six years of the filing of an application;

(4) applicants have a due process right to an oral hearing before the BLM prior to issuance of a final decision rejecting their allotment claims.

Appellant's last contention was settled by Pence I, in which the court ordered the Secretary to develop procedures for adjudicating allotment claims which would meet at least the minimum due process requirements outlined in the opinion. The Secretary adopted existing procedures for contesting government rejection of claims to land and mineral rights. 43 C.F.R. § 4.451 Et seq. (1976). In Pence v. Andrus, 586 F.2d 733 (9th Cir. 1978), we held that those regulations comply facially with the due process requirements set forth in Pence I. ³

Eluska moved to certify the class and for summary judgment only on the issue of the applicability of the five-year use and occupancy requirement. The Secretary responded by moving to remand the case to the agency for a fair hearing pursuant to the regulations newly adopted to comply with Pence I.

The district court issued a memorandum and order of remand. ⁴ Appellant renewed her motion for summary judgment, claiming that the IBLA's position on the applicability of the five-year use and occupancy requirement is firm, and therefore a remand for a hearing would be futile. ⁵ Her This court dismissed the appeal because the separate judgment required to establish jurisdiction under United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), did not appear in the record. Eluska v. Kleppe, No. 77-1256 (9th Cir. Mar. 16, 1977) (unpublished memorandum). Eluska then moved in the district court for entry of judgment pursuant to Fed.R.Civ.Proc. 58. The court granted the motion and this appeal followed.

motion was denied and the case was appealed.

APPEALABILITY

The Secretary challenges the jurisdiction of this court to hear Eluska's appeal. He argues that the district court judgment denying summary judgment to the appellant and remanding the case to the IBLA is not a final judgment as required by 28 U.S.C. § 1291 (1970). He also contends that the judgment is not an interlocutory order denying or modifying an injunction under 28 U.S.C. § 1292(a)(1) (1970). We agree on both counts.

THE REMAND ORDER:

Section 1291 confers jurisdiction on this court to hear "appeals from all final decisions of the district courts." 28 U.S.C. § 1291 (1970). Had the district court judge dismissed the action rather than remanding the case to the administrative agency, the judgment would have been final and appealable. See, e. g., Montgomery v. Rumsfeld, 572 F.2d 250 (9th Cir. 1978); American Federation of Government Employees, Local 1668 v. Dunn, 561 F.2d 1310 (9th Cir. 1977); Kale v. United States, 489 F.2d 449 (9th Cir. 1973), Cert. denied, 417 U.S. 915, 94 S.Ct. 2617, 41 L.Ed.2d 220 (1974).

Instead, he incorporated the remand order and denial of summary judgment into a judgment, upon appellant's motion. Neither a remand order nor a denial of summary judgment is ordinarily final and appealable under § 1291. Remand order: E. g., Barfield v. Weinberger, 485 F.2d 696 (5th Cir. 1973); United Transportation Union v. Illinois Central Railroad Co., 433 F.2d 566 (7th Cir.), Cert. denied, 402 U.S. 915, 91 S.Ct. 1374, 28 L.Ed.2d 661 (1971); Transportation-Communication Division v. St. Louis-San Francisco Ry. Co., 419 F.2d 933 (8th Cir. 1969), Cert. denied, 400 U.S. 818, 91 S.Ct. 34, 27 L.Ed.2d 45 (1970). Denial of summary judgment: E. g., Safe Flight Instrument Corp. v. McDonnell-Douglas Corp., 482 F.2d 1086, 1093 (9th Cir.), Cert. denied, 414 U.S. 1113, 94 S.Ct. 843, 38 L.Ed.2d 740 (1973); See generally 10 C. Wright & A. Miller, Federal Practice & Procedure § 2715 at 417 (1973). Therefore, in order to conclude that the judgment was final, we must first find that it was equivalent to an order of dismissal.

In Montgomery v. Rumsfeld, 572 F.2d 250 (9th Cir. 1978), this court discussed the discretion of district courts to remand for exhaustion of administrative remedies. The court noted that when exhaustion is statutorily mandated, the exhaustion requirement is jurisdictional and the district court must dismiss the action. 572 F.2d at 252. But when there is no statutory exhaustion requirement, courts must resort to a balancing test to determine whether exhaustion is necessary in a given case. If they conclude that it is, the proper course is to remand the case to the agency, retaining jurisdiction. 572 F.2d at 253-54.

In the present case, no statute mandates exhaustion; therefore, dismissal was not required. Although the district court judge did not have the benefit of the Montgomery decision, he nevertheless weighed the competing interests, ⁶ concluded that the The judge remanded to allow the agency to develop fully the facts relevant to Eluska's claims. This court has stated that

Pence I fair hearing procedures should be exhausted, and issued the order of remand. He apparently wished to retain jurisdiction or he would have dismissed the action entirely. His intention not to dismiss can be inferred from his reasons for remanding.

(a)n order remanding the case for additional or supplementary evidence, without a review by the court of the administrative record . . ., is without doubt an interlocutory order and is not appealable. Likewise, an order Sua sponte by the court for the taking of additional evidence is not appealable. (Citations omitted.)

Cohen v. Perales, 412 F.2d 44, 48 (5th Cir. 1969), Rev'd on other grounds sub nom. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

The judge also remanded to give the agency a chance to correct its mistakes, in the belief that the exhaustion doctrine is "an expression of executive and administrative autonomy." ⁷ His remand is analogous to a preliminary order staying judicial proceedings pending the outcome of administrative agency action. Such orders are not appealable. Fugate v. Morton, 510 F.2d 307 (9th Cir.), Cert. denied sub nom. Fugate v. Hathaway, 422 U.S. 1045, 95 S.Ct. 2665, 45 L.Ed.2d 697 (1975); Chronicle Publishing Co. v. National Broadcasting Co., 294 F.2d 744 (9th Cir. 1961).

Appellants cite cases in which circuit courts have held remand orders appealable. In the cited cases, however, the courts relied upon exceptions to the final judgment rule: the collateral order doctrine propounded in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and the "death knell" theory set forth in Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), Cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967). ⁸ These exceptions have recently been limited or disapproved by the Supreme Court.

In Coopers & Lybrand v. Livesay, --- U.S. ---, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Court held that an order denying class certification did not...