Eric v. Secretary of United States Dept. of Housing, A76-276 Civil.

• Decision Date: 28 August 1978
• Docket Number: No. A76-276 Civil.,A76-276 Civil.
• Citation: 464 F. Supp. 44
• Parties: John ERIC, Peter Matthew, Sr., Aaron Rivers, Sr., and Irvin Morris, Individually and on behalf of all others similarly situated v. The SECRETARY OF the UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, and the United States of America.
• Court: U.S. District Court — District of Alaska

464 F. Supp. 44

John ERIC, Peter Matthew, Sr., Aaron Rivers, Sr., and Irvin Morris, Individually and on behalf of all others similarly situated v. The SECRETARY OF the UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, and the United States of America.

No. A76-276 Civil.

United States District Court, D. Alaska.

August 28, 1978.

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

Alexander O. Bryner, U. S. Atty. for Alaska, Anchorage, Alaska, for defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

THIS CAUSE comes before the court on the federal defendants' motion to dismiss, or in the alternative for summary judgment, and on the plaintiffs' motion for partial summary judgment.

I. Facts

This action is brought by residents of Native villages, located in western and northern Alaska, seeking damages, declaratory, equitable and injunctive relief. These plaintiffs have sued the Secretary of Housing and Urban Development (HUD) and the United States for breach of their trust responsibilities in administering the Bartlett Act, 42 U.S.C. § 3371 (1970).¹ This statute provides a method for distributing funds to the State of Alaska to assist in providing housing, primarily for Alaskan Natives. The plaintiffs claim that the houses provided under this program were improperly designed and built and are therefore unsafe and unhealthy. This court previously dismissed defendant Alaska State Housing Authority (ASHA) because of a lack of subject matter jurisdiction. Memorandum and Order, No. A76-276 Civil, January 31, 1978.

Plaintiffs contend that the defendants have greater responsibilities under the Bartlett Act than the State because the Act was enacted to fulfill the federal government's special trust relationship with Native Americans. See Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942); Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan.L.Rev. 1213 (1975). The plaintiffs argue that the trust relationship gives the Bartlett Act more potency with reference to the federal defendants, that the defendants have breached the "exacting fiduciary standards" required of a trustee, Seminole Nation, 316 U.S. at 297, 62 S.Ct. 1049, and that this federal common law doctrine added to the statute creates federal question jurisdiction and a valid cause of action.

Defendants have moved that the action be dismissed on several grounds, including absence of federal question jurisdiction and the presence of sovereign immunity, and have denied that the Bartlett Act was enacted to fulfill a special trust relationship and have contended that the statute alone does not create a cause of action upon which relief can be granted.

The court first will examine the issue of federal question jurisdiction and then the issue of sovereign immunity.

II. Jurisdiction

The defendants dispute that this is a case which arises under the laws of the United States as required by 28 U.S.C.A. § 1331(a) (1977). They focus upon the statute and argue that this court's order dismissing ASHA applies with equal force to the federal defendants. The court's federal question jurisdiction must appear on the face of the well-pleaded complaint. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 676, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). The plaintiff's Second Amended Complaint alleges that "the defendants by their acts and omissions have breached the trust duties they owe to plaintiffs under the Bartlett Act." (Paragraph 25, Second Amended Complaint).

The doctrine that the federal government stands in a fiduciary relationship to Native Americans has been a part of our common law since the early days of the Republic. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831). Over the years courts at all levels have sustained the doctrine that in its relations with Native peoples the government owes a special duty analogous to those of a trustee. Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912); Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942); Redfox v. Redfox, 564 F.2d 361, 365 (9th Cir. 1977); Manchester Band of Pomo Indians, Inc. v. United States, 363 F.Supp. 1238 (N.D.Cal.1973). One recent decision refers to the "`unique relationship' between Indians and the federal government, a relationship that is reflected in hundreds of cases and is further made obvious by the fact that one bulging volume of the U. S. Code pertains only to Indians." White v. Califano, 437 F.Supp. 543, 555 (D.S.D.1977).

This common law doctrine applies to Alaska Natives. Koniag, Inc. v. Kleppe, 405 F.Supp. 1360, 1373 (D.D.C.1975). In Alaska Public Easement Defense Fund v. Andrus, 435 F.Supp. 664 (D.Alaska 1977) this court said that "although generally the Alaska Natives were not dependent in the sense that they were on reservations, their fate rested in the hands of Congress and they were dependent upon its protection and good faith." Id. at 671. The fact that a treaty between the United States and Alaska Natives never existed does not affect the existence of the trust relationship. In Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975) where the principal issue in the case was the nonexistence of a treaty but the court still held that the trust responsibility required the federal government to assist the Natives in pursuing their claims against the State.

The court will later discuss the relationship between the Bartlett Act and this common law doctrine. It is enough for the present analysis to hold that the Bartlett Act does fulfill the trust relationship and the plaintiffs complaint is based on the statute and the doctrine. The dismissal of ASHA was necessary because the trust doctrine applies only to the federal government and not to the State or its agencies.

The Supreme Court has said "we see no reason not to give `laws' its natural meaning ... and therefore conclude that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin." Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 1391, 31 L.Ed.2d 712 (1972). Therefore, the court holds that federal question jurisdiction exists for the plaintiffs claims based upon the defendants acts and omissions which breach the trust duty under the Bartlett Act. Consistent with the court's order of January 31, 1978, those claims based solely on the Bartlett Act must be dismissed (Paragraph 26, Second Amended Complaint).

The defendants also move that the plaintiffs' cause be dismissed as barred by the doctrine of sovereign immunity. See generally, 14 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction, §§ 3654-56 (1976). In deciding the issue of sovereign immunity the court must distinguish between those claims which are monetary, and those claims requesting declaratory and equitable relief.

The United States may not be sued without its consent. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Hill v. United States, 571 F.2d 1098 (9th Cir. 1978). The absence of consent is a jurisdictional defect. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Although plaintiffs have sued the Secretary of HUD along with the government, there is little doubt that in its totality this is a suit against the United States. The determinative factor is not how the case is captioned but rather the result of the judgment or decree which might be entered. Minnesota v. Hitchcock, 185 U.S. 373, 387, 22 S.Ct. 650, 46 L.Ed. 954 (1902). The general rule is that

"a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' .. or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.'"

Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). All of the plaintiffs' claims would in some way interfere with public administration and are not aimed at the Secretary as an individual. In order to succeed on their claims the plaintiffs must demonstrate that their cause fits within an exception to the doctrine or that sovereign immunity has been waived.

The plaintiffs claim that a breach of a trust duty is an ultra vires act. See Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969). This exception applies when an officer has acted beyond his delegated authority and therefore his acts are not the acts of the sovereign. Plaintiffs attempt to fit a failure to act resulting in a breach of a common law trust duty into this exception by referring to Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971) which states that the ultra vires exception could be applied to omissions as well as affirmative acts beyond the authority of a statute. However, the Rockbridge case was based on a statute which created a plain duty for the government to act whereas the present case is based on breach of a common law duty and not the language of the Bartlett Act. See Tewa Tesuque v. Morton, 498 F.2d 240, 243 (10th Cir. 1974). Plaintiffs confuse the creation of a cause of action with a waiver of sovereign immunity. See United States v. Testan, 424 U.S. 392, 400-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

28 U.S.C.A. § 1331 (1977) which provides for federal question jurisdiction is not a waiver of sovereign immunity. See Smith v. Grimm, 534 F.2d 1346, 1351 n. 6 (9th Cir. 1976). The Declaratory Judgment Act, 28 U.S.C. § 2201-02 (1970), does not waive sovereign immunity. White v. Administrator of General Service Administration, 343 F.2d 444, 447 (9th Cir. 1965). Nothing in the Bartlett...