McKenna v. Udall, 21915.

• Decision Date: 10 July 1969
• Docket Number: No. 21915.,21915.
• Citation: 418 F.2d 1171
• Parties: Elgin A. McKENNA, as Executrix of the Estate of Patrick A. McKenna, Deceased, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

418 F.2d 1171 (1969)

Elgin A. McKENNA, as Executrix of the Estate of Patrick A. McKenna, Deceased, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

No. 21915.

United States Court of Appeals District of Columbia Circuit.

Argued January 21, 1969.

Decided July 10, 1969.

Mr. Milo G. Coerper, Washington, D. C., for appellant.

Mr. William M. Cohen, Atty., Department of Justice, with whom Asst. Atty. Gen. Clyde O. Martz, Messrs. Roger P. Marquis and Herbert Pittle, Attys., Department of Justice, were on the brief, for appellee. Mr. S. Billingsley Hill, Atty., Department of Justice, also entered an appearance for appellee.

Mr. Stanley D. Robinson, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for Texaco, Inc., as amicus curiae. Mr. William C. Weitzel, Jr., New York City, was on the brief for Texaco, Inc., as amicus curiae, urging affirmance. Mr. William E. Rollow, Washington D. C., also entered an appearance for Texaco, Inc., as amicus curiae.

Before BAZELON, Chief Judge, BURGER^* and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

The parties being in agreement in the District Court that there were no disputed issues of fact, the case was disposed of on cross-motions for summary judgment, and the complaint dismissed. In support of this judgment here, appellee urges not only that the result so reached reflects an accute appraisal of the merits of the controversy but also that it is warranted by the absence in this litigation of indispensable parties. Since we think the latter is clearly true, we affirm on that ground and do not reach the merits.

I

Beginning in 1942, the Department of the Army acquired many thousands of acres of land in Kentucky for Camp Breckenridge. At that time Congress had made no provision for the leasing of mineral deposits in acquired lands, as distinct from the public lands not taken from private ownership. The Attorney General had, however, in 1941 given an opinion that any department or agency acquiring lands which were vulnerable to oil drainage from adjacent areas could, in the exercise of inherent power to protect federal property, enter into protective oil leases directly, or could authorize another agency to handle such leasing for it. 40 Op.Atty. Gen. 41. The Camp Breckenridge lands proved to be exposed to this danger of loss, and the Army sought the expert services of the Department of the Interior. Public Land Order No. 729, 16 Fed.Reg. 6132 (1951), was issued which authorized Interior, subject always to the Army's prior approval, to issue leases necessary to protect the Camp Breckenridge oil deposits from drainage.

On December 5, 1962, the Army reported Camp Breckenridge to the General Services Administration as excess to its needs, and, on February 7, 1963, GSA declared the property to be surplus. It moved to sell the mineral interests by competitive bids receivable on April 15, 1965, and in due course asked the Interior Department formally to revoke Public Land Order No. 729 because of the possibly adverse effect it might have on the bidding. Interior agreed to do so, and Public Land Order No. 3706, 30 Fed. Reg. 7754 (1965), was issued to this end.

Appellant's predecessor in interest saw, in December, 1964, GSA's advertised invitation for bids. The following March he filed several lease offers with Interior under the noncompetitive leasing provisions of the Mineral Leasing Act for Acquired Lands.¹ These offers were declined by Interior for lack of jurisdiction, coincidental with the announcement by GSA of the names of the successful bidders, to whom GSA gave appropriate title deeds. Successive appeals within the Interior Department against the rejection of appellant's offers culminated in a decision by appellee upholding the rejection. This suit was then filed in the District Court against appellee alone, seeking relief which would have the effect of placing in irreconcilable conflict the deeds given by GSA to the successful bidders, on the one hand, and the leases from appellee which appellant asserts he is entitled to get, on the other.

II

We need not stop long to consider why it is that GSA, and especially its grantees, are necessary parties. The claim is that the former wrongfully sold federal property; if that claim is sound, the deeds given by GSA to the successful bidders are invalid. Failure to cancel the deeds would put appellee in the position of leasing property which the title records show as owned by someone else. Appellant's grievance is not solely directed against appellee for rejecting his lease offers but it is also aimed at GSA's action in selling the property to the highest bidders. By any meaningful measure of the concept of indispensability, this lawsuit did not in its inception have the breadth of reach that its allegations required. Our question is not whether indispensable parties, within the contemplation of Rule 19(a), Fed.R.Civ.P.,² were omitted, but what should be done about it. We turn to the express provision made on this score in the Federal Rules of Civil Procedure. Rule 19(b),³ set out in the margin, enumerates the factors which a court should consider in deciding whether to dismiss an action because an absent person is indispensable to the just resolution of the controversy. The Supreme Court, in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), recently held that Rule 19(b) is a proper statement of the law of indispensability as it has developed over the years. That history, rooted in Shields v. Barrow, 17 How. 130, 15 L.Ed. 158 (1854), has recognized equitable considerations as paramount in determining the question of indispensability.⁴ Here, where it would seem that another forum was available in which all the interested parties could be found and joined, this action should be dismissed.

If only the first three factors contained in Rule 19(b) were balanced in attempting to decide whether the purchasers of the land are indispensable parties, this court would be inclined to rest upon its own precedent in Barash v. Seaton, 103 U.S.App.D.C. 159, 256 F.2d 714 (1958). As to these three factors, the court sees no significant distinction from Barash. The fact that in Barash the absent parties were leaseholders, whereas here they putatively have acquired title, has no bearing on the issue of indispensability.⁵

This, however, still leaves to be considered the fourth factor listed in Rule 19(b), i.e., "whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." Although Barash did not deal with the issue of indispensability in depth it is obvious from the facts of that case that the court's determination was based primarily on its knowledge that, if plaintiff could not prevail in this jurisdiction, there was no other court to which he could turn. In the interim between the Barash case and this one, however, Congress has passed a statute, the Mandamus and Venue Act of 1962,⁶ which has opened up to appellant other tribunals than those in the District of Columbia.

In order to bring an action in a federal district court in Kentucky in which both the corporate purchasers from GSA and the relevant Government officials could be joined, it is necessary to establish that (1) all defendants could be served there, (2) the court will have jurisdiction over the subject matter of the suit, (3) effective relief would be available in that court, and (4) the venue of the court would be proper.⁷

In his argument to the District Court, counsel for appellant stated that he "didn't know if we could get service on the purchasers in Kentucky." Then, he continued: "They have sub-contracted the drilling on the land and I don't know that they have any permanent office or anything of that nature in Kentucky. I have not been able to find it if that is the case. I think it would be very difficult to attempt to proceed in Kentucky." Finally, and most significantly, he candidly admitted: "In any event, we preferred to proceed as we have." But, especially since Congress has acted to make Government officials amenable to suit outside the District of Columbia, it is not enough simply to assure a D.C. court that one prefers to litigate here.

It is, in any event, scarcely to be thought that appellant would not be able to effect personal service in Kentucky upon the corporate purchasers of the property. Field Enterprises Educ. Corp. v. Hopkins, 378 S.W.2d 797 (Ky. 1964), is authority for the proposition that Kentucky adheres to the broad conception of the scope of personal service enunciated by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).⁸ Here, not only are the purchasers plainly "doing business" within the State of Kentucky in that they are engaging through agents in drilling operations upon their own property, but also appellant's cause of action arises out of that same property. Accordingly, under the liberal provisions for service of process on a foreign corporation, whether it is registered or not, see Ky. R.Civ.P. 4.04(5); Ky.Rev.Stat. §§ 271.385, 271.610(2), appellant appears to have had inadequate cause to assume that personal jurisdiction over the purchasers in a Kentucky court poses a serious problem.

Little need be said about subject matter jurisdiction. The case clearly presents a "federal question" under 28 U.S.C. § 1331 (1964). A more complex issue is whether a District Court, sitting in Kentucky, could give appellant adequate relief if it viewed her claim as meritorious. It is the recent statute⁹ passed by Congress since Barash for the express purpose of broadening the remedial powers of federal district courts which distinguishes that case from the present one. Prior to 1962, no federal district court in the nation other than the District Court for the District of Columbia possessed the power to grant a writ of mandamus against...