Littell v. Udall

• Citation: 242 F. Supp. 635
• Decision Date: 26 May 1965
• Docket Number: No. C. A. 2779-63.,C. A. 2779-63.
• Parties: Norman M. LITTELL, Plaintiff, v. Stewart L. UDALL, Secretary of the Interior, Defendant.
• Court: U.S. District Court — District of Columbia

242 F. Supp. 635

Norman M. LITTELL, Plaintiff, v. Stewart L. UDALL, Secretary of the Interior, Defendant.

No. C. A. 2779-63.

United States District Court District of Columbia.

May 26, 1965.

Frederick Bernays Wiener, John F. Doyle, Washington, D. C., for plaintiff.

Herbert Pittle and Thomas L. McKevitt, Attys., Dept. of Justice, Washington, D. C., for defendant.

SIRICA, District Judge.

The plaintiff in this action is General Counsel and Claims Attorney for the Navajo Tribe. The Tribe has a population of approximately 100,000 members and occupies a reservation in Arizona, New Mexico, Utah and Colorado of approximately 24,000 square miles. It has extensive resources, including approximately $80,000,000 on deposit in the United States Treasury, and has a monthly income from mineral leases of approximately $1,000,000.

The defendant Secretary and his subordinates are restrained, by a preliminary injunction issued by Judge McGarraghy of this Court on November 29, 1963, from terminating plaintiff's contract with the Navajo Tribe; from suspending or otherwise improperly interfering with plaintiff's performance of said contract; or from withholding payments due thereunder. Defendant appealed from Judge McGarraghy's ruling; the Court of Appeals for this Circuit affirmed, 338 F.2d 537 (Aug. 13, 1964, petition for rehearing denied, Oct. 16, 1964). This Court is now asked to decide whether a permanent injunction should be issued.

As background, the following facts are relevant:

Mr. Littell has been General Counsel and Claims Attorney for the Navajo Tribe since August of 1947. Since that time, the Tribe's economic status has risen from a position of poverty to that of prosperity, largely due to discovery of vast mineral resources on the reservation. Plaintiff's duties have materially increased as the complexity of the Tribe's legal problems have multiplied with its increasing wealth. Correspondingly, his annual retainer as General Counsel has been raised from $5,000 beginning in 1947, to a present figure of $35,000. He has as yet received no fee for claims work during this period.

Plaintiff negotiated a ten-year contract in 1947 with the Navajo Tribal Council, the governing body of the Tribe, and renewed it for another ten years in 1957 after a short interim agreement. Pursuant to 25 U.S.C. ? 81, the Secretary of the Interior, or his authorized representatives, have approved these contracts and the several amendments thereto.

Until early 1963, relations between attorney and client were cordial. Then, in a hotly-contested campaign for the office of Navajo Tribal Chairman, which is the Chief Executive position of the Tribe, this relationship became subject to considerable stress and strain. The successful candidate, Raymond Nakai, had promised during the campaign to remove plaintiff from his position. Mr. Nakai campaigned for the office of Navajo Tribal Chairman primarily on a platform "to get rid of Mr. Littell." He advocated less interference by the plaintiff in tribal affairs and also charged that the plaintiff had misrepresented to the Tribe the result in the Navajo-Hopi boundary dispute involved in Healing v. Jones. The nature of the dispute is discussed infra.

Nakai was elected Chairman in March of 1963 and was inaugurated the next month. Even before his inauguration, Nakai visited the Secretary and sought his help in eliminating Littell.

Subsequent meetings were held in the next two months. With the cooperation of several collaborators, some of whom were attorneys with an obvious self-interest to pursue in securing lucrative legal positions with the Tribe, Nakai succeeded in gaining the confidence of the Secretary and his subordinates.

An old friend of the Secretary, one Barry DeRose, an Arizona attorney, was one of the collaborators. On June 14, 1963, he boasted that he could contact the Secretary "at any time." On June 18, DeRose phoned the Secretary's office for an appointment. Just one day later, he was in the Secretary's office. Several other persons opposed to Littell were present. At this meeting, the Secretary could have guided the dispute back to the limits of propriety by urging airing of it before the Tribal Council. Instead, he unwisely counseled that the charges against Littell should be expressed in a resolution passed by the nine-man Advisory Committee, a group appointed by Nakai, beholden to him, and quite prepared to rubberstamp anything he wanted. The result was an attempt to cloak this whole plan to eliminate Littell with the guise of legitimacy by getting a resolution passed by Nakai's hand-picked puppet committee.

Apparently, the Secretary preferred to accept the word of the Advisory Committee, which he himself described as a "stacked body," rather than submit the dispute to the duly-elected Tribal Council, representing all 100,000 Navajos on the reservation. He followed this course despite a written protest to him by several members of the Council concerning the circumvention of the Council.

The resolution was adopted by the Advisory Committee on June 25, 1963. There followed a concerted effort to "get rid of Littell" as General Counsel and Claims Attorney.

There was, however, a major obstacle to removal of the plaintiff. The 1957 contract provided that the termination of that contract could be accomplished only by the 74-member Tribal Council. It is clear that the majority of the Council membership was opposed to termination.

To detour this legal roadblock, the Secretary decided in November of 1963 that he himself should remove Littell. By a letter dated November 1, the Secretary transmitted to the plaintiff copies of two memoranda prepared by Frank J. Barry, the Secretary's Solicitor (the nature of the charges of alleged misconduct contained in the two memoranda are discussed infra in the section dealing with the defendant's assertion that the plaintiff has sought equitable relief with unclean hands). In the Secretary's letter of November 1 to plaintiff, he said:

"The conclusions which arise from the findings and conclusions in the memoranda mentioned above leave me no recourse but to take the following action:

"(a) Your personal performance under the Attorney Contract of the Navajo Tribe dated October 8, 1957, as amended, is hereby suspended;

"(b) Your contract will be terminated as of December 1, 1963, unless, in the interim, you can adduce convincing evidence that the conclusions justifying suspension and termination are unwarranted; and

"(c) Approval of said contract and all amendments thereto, insofar as such approval relates to your personal performance and right to compensation, is hereby rescinded and withdrawn. Furthermore, I have directed that no payments be made to you under said contract until further notice."

Plaintiff then filed this action. Judge McGarraghy's preliminary injunction followed on November 29, 1963. It prohibited the Secretary or his subordinates from terminating or suspending or improperly interfering with the plaintiff's performance under said contract, and further enjoined the Secretary's withholding of voucher approvals for monthly salary payments.

Within a few weeks, the regular quarterly meeting of the Navajo Tribal Council was held in Window Rock, Arizona. A further interference with the plaintiff's duties occurred when he was ejected from the meeting by Chairman Nakai with the tacit approval of several of the people present, including employees of the Bureau of Indian Affairs, an arm of the Interior Department, and one Stanley Zimmerman, the personal representative of the Secretary and Barry. The plaintiff moved to cite the Secretary and Zimmerman for contempt, alleging that the Secretary and his officers, agents, and employees, including Zimmerman, violated the terms of the injunction in that they confederated and conspired with divers others persons to prevent plaintiff from acting as General Counsel for the Navajo Tribe. The evidence available to this Court at the time of the hearing (March 1964) of that motion failed to prove such a conspiracy in a manner that was "clear and convincing," and the Court denied the motion. The Court's oral opinion, rendered at the conclusion of the contempt hearing, is included as Appendix I. At this point, it might be noted that if all of the evidence that was introduced by both parties in the present action had been available for the Court's consideration at the contempt proceeding, the conclusion reached by the Court in that case undoubtedly would have been different.

Following the affirmance of Judge McGarraghy's preliminary injunction by our Court of Appeals, Udall v. Littell, supra, the defendant filed an answer and the hearing on the merits for a permanent injunction was held.

Attached hereto as Appendix II are the Court's findings of fact and conclusions of law.

The Court will now comment upon the principal legal issues raised in this case, namely:

(1) Did the Secretary have the legal authority to terminate the contract?

(2) Did the plaintiff exhaust his administrative remedies?

(3) Does the plaintiff seek equitable relief with unclean hands?

I. DID THE SECRETARY HAVE THE LEGAL AUTHORITY TO TERMINATE THE CONTRACT?

The crucial question to be determined, if it has not already been decided by the Court of Appeals, Udall v. Littell, supra, is whether or not under the circumstances of this dispute, with the language of plaintiff's contract providing for termination only by the Tribal Council, the Secretary had the power to himself terminate the plaintiff's contract. Paragraph 12 of the current contract reads as follows:

"12. Termination: (a) The Tribal Council may terminate this contract for good cause shown in respect to any one or all of second parties' services as General Counsel after giving sixty days' notice to any of second parties in respect to which termination is sought, the said termination to become effective upon approval of the Commissioner of Indian Affairs, PROVIDED,

...