Fidalgo Island Packing Company v. Phillips

• Decision Date: 14 March 1957
• Docket Number: No. A-6865.,A-6865.
• Citation: 149 F. Supp. 260
• Parties: FIDALGO ISLAND PACKING COMPANY, a corporation, Plaintiff, v. A. B. PHILLIPS, Executive Director, Employment Security Commission of Alaska, Defendant, Clara Wilson, Intervenor.
• Court: U.S. District Court — District of Alaska

149 F. Supp. 260

FIDALGO ISLAND PACKING COMPANY, a corporation, Plaintiff, v. A. B. PHILLIPS, Executive Director, Employment Security Commission of Alaska, Defendant Clara Wilson, Intervenor.

No. A-6865.

District Court Alaska, First Division, Juneau.

March 14, 1957.

H. L. Faulkner, of Faulkner, Banfield & Boochever, Juneau, Alaska, for plaintiff and intervenor.

Edward A. Merdes, Asst. Atty. Gen., and Dickerson Regan, Associate Counsel, Juneau, Alaska, for defendant.

KELLY, District Judge.

This matter comes before the Court upon the petition of defendant for a rehearing upon the question of allowance of attorney fees in any way from moneys now in or required to be deposited in Alaska's account in the unemployment trust funds, including money heretofore impounded in this action. The defendant admits in its petition that it did not fully advise the Court on the law as it would apply to a requirement that the defendant deduct a percentage of each claim in this action and pay the same over to plaintiff's attorney as compensation for the services rendered in procuring the benefits for all these claimants under the "salvage" theory. This theory, as argued by counsel for plaintiff at the hearing, would not conflict with the sovereign's immunity from the payment of costs and taxable attorney fees. Counsel for defense did not argue against this proposal of plaintiff's counsel at the former hearing and mentioned only briefly in his memorandum filed in connection therewith that the law required that all moneys withdrawn from the unemployment trust fund must be used exclusively for the payment of benefits and refunds, so in effect the question here involved is now before the Court for the first time.

Rehearing was granted and on the argument counsel for plaintiff pointed out that Sec. 762 of the Employment Security Act of the Extraordinary Session Laws of Alaska 1955, c. 5, authorizes the Court to designate attorney fees. It should be pointed out that the provisions of the Act as amended in 1955 are applicable on the question of attorney fees, notwithstanding the fact that the substantive rights of the parties were governed by the law as it existed when the controversy arose. See Hogan v. Ingold, 1952, 38 Cal.2d 802, 243 P.2d 1, 32 A.L. R.2d 834; Igoe Bros. v. National Surety Co., 112 N.J.L. 243, 169 A. 841, 96 A.L.R. 1428.

Section 762 provides in part as follows:

"Limitation of Fees. No individual claiming benefits shall be charged fees of any kind in any proceeding under this Act by the Commission or its representatives, or by any court or any officer thereof. Any individual claiming benefits in any proceeding before the Commission or its representatives or a court may be represented by counsel or other duly authorized agent; but no such counsel or agent shall either charge or receive for such services more than an amount approved by the Commission or the Court. * * *"

It would surely seem that the authorization of attorney fees by the Court as well as the Commission is contemplated in appeals by individual claimants from decisions of the Commission, but in the present case, the Fidalgo Island Packing Co. cannot be considered as a claimant within the meaning of the statute, since it merely sought an injunction forbidding the enforcement of amended regulation 10.

This Court, in the Opinion filed herein on January 21, 1957, and to which reference is hereby made, held that provisions for interest or costs in a case against the sovereign must be provided for specifically in a statute; that there is no provision for anything in addition to unemployment benefits in Alaska's Employment Security Act in effect at the time this action arose and that the Director and the Commission were clothed with the sovereignty of the Territory of Alaska and that no interest could be awarded nor could attorney fees as costs be allowed.

The Court then went on in that Opinion to hold on the basis of plaintiff's brief and arguments at the hearing that under the "salvage" doctrine, attorney fees should be awarded from the funds which were recovered for each claimant and although it is well settled that in class suits attorneys would be entitled to receive their compensation in that manner, the Court is compelled to change its holding on this particular matter because Section 763 of the Alaska Employment Security Act, supra, provides as follows:

"Exemption of Benefits. Any assignment, pledge, or encumbrance of any rights to benefits which are or may become due or payable under this Act shall be void; and such rights to benefits shall be exempt from levy, execution, attachment, or

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