National Indian Youth Council v. Morton, Civ. No. 71-805.

• Decision Date: 15 June 1973
• Docket Number: Civ. No. 71-805.
• Citation: 363 F. Supp. 475
• Parties: NATIONAL INDIAN YOUTH COUNCIL, a nonprofit corporation, et al., Plaintiffs, v. Rogers MORTON et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

363 F. Supp. 475

NATIONAL INDIAN YOUTH COUNCIL, a nonprofit corporation, et al., Plaintiffs, v. Rogers MORTON et al., Defendants.

Civ. No. 71-805.

United States District Court, W. D. Oklahoma, Civil Division.

June 15, 1973.

COPYRIGHT MATERIAL OMITTED

Stephen Jones, Enid, Okla., Richard L. Young, Albuquerque, N. M., for plaintiffs.

William R. Burkett, Jerry Cord Wilson, Oklahoma City, Okla., for defendants.

ORDER

DAUGHERTY, Chief Judge.

Plaintiffs bring this action to redress alleged deprivations of rights which they say are secured to them under the United States Constitution. They claim jurisdiction of this action exists under 28 U.S.C.A. § 1331 (federal question) and 5 U.S.C.A. §§ 701-706 (review of administrative action). They seek declaratory, injunctive and compensatory (now withdrawn) relief from the Defendants. Defendants have moved to dismiss Plaintiffs' Complaint on the grounds that this is, (1) an action against the United States to which it has not consented and, (2) that Plaintiffs have failed to exhaust their administrative remedies.

Plaintiffs allege that the Defendants have acted in their official capacities but beyond their lawful authority or have acted within their lawful authority in an unconstitutional manner in causing Indian students to be expelled from the Chilocco Indian School and other Indian schools. The thrust of Plaintiffs' Complaint is that Defendants expel students from Indian schools under their supervision without affording them procedural due process. Plaintiffs claim they represent a class composed of Indian students expelled from Indian schools operated by the federal government throughout the United States. Plaintiffs also assert that they need not seek administrative settlement of their claims for various reasons. Without specifying any amount, Plaintiffs claim that they and each member of their class have been damaged in an amount exceeding $10,000.

With respect to sovereign immunity, Defendants argue that Plaintiffs' suit seeks redress for actions taken in the performance of their official duties with requested relief that would either interfere with governmental administration or compel the government to act and is therefore an unconsented suit against the United States. Plaintiffs respond that their suit is against the Defendants in their individual capacities for acts either beyond their statutory authority or if within their statutory authority their exercise thereof is constitutionally void. Accepting Plaintiffs' characterization of their action as one to redress unconstitutional acts of the Defendants or an unconstitutional exercise of lawfully delegated authority of the Defendants, as this Court must do on a motion to dismiss, Defendants' Motion must be overruled at this time as to this ground. Acts of government officials beyond their statutory authority or their wrongful exercise of statutory authority are exceptions to the rule of sovereign immunity plead by Defendants. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963).

However, Plaintiffs have failed to show that they have exhausted available administrative remedies with reference to their Complaint and have failed to show that they should not exhaust the same before resorting to the Courts.

In their Motion To Dismiss the Defendants cite 25 C.F.R. § 2.2 which provides in part as follows:

". . . where the action or decision is protested as a violation of a right or privilege of the appellant. Such rights or privileges must be based upon fundamental constitutional law, applicable Federal statutes, treaties, or upon Departmental regulations.",

and 25 C.F.R. § 2.3 which provides in part as follows:

". . . any interested party adversely affected by a decision of an official under the supervision of an Area Director of the Bureau of Indian Affairs may appeal to the Area Director; an appeal may be taken to the Commissioner of Indian Affairs from a decision of the Area Director; and an appeal may be taken to the Secretary of the Interior from a decision of the Commissioner.",

as the prescribed administrative remedy or procedure available to any aggrieved plaintiff with reference to a student expulsion action by the Defendants. Defendants assert that the Plaintiffs have not availed themselves of or exhausted this administrative remedy. Plaintiffs do not controvert this assertion and as heretofore stated have failed in their Complaint to show an exhaustion of this administrative remedy without obtaining desired relief or even an attempt to use the same.

Plaintiffs' claim, however, that they need not avail themselves of this prescribed administrative appeals remedy because (1) they seek money damages herein and this relief is not available in said administrative procedure, (2) the administrative remedy does not provide procedural safeguards, (3) too much time would be involved pursuing such administrative remedy thereby making the same inadequate and (4) Commissioner Bruce has said, ". . . stated and practiced Bureau policy relating to student expulsion, do not adequately protect the rights of students." None of these contentions has any merit.

The United States Supreme Court has announced in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947) that:

"The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken . . . the courts have no lawful function to anticipate the administrative decision with their own . . . To do this . . . would nullify the congressional objects in providing the administrative determination."

It is thus clear that judicial review of administrative action is improper prior to exhaustion of available or prescribed administrative remedies. See McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); F. C. C. v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965); Macauley v. Watterman S. S. Corp., 327 U.S. 540, 66 S. Ct. 712, 90 L.Ed. 839 (1946).

Plaintiffs' assertion that they need not pursue available administrative remedies because they seek money damages against the Defendants is without merit. In the first place Plaintiffs do not proceed herein under 28 U.S.C. § 1332, on diversity of citizenship. Plaintiffs claim jurisdiction by reason of 28 U.S.C. § 1331, a federal question and 5 U.S.C. §§ 701-706, review of administrative action. It is clear that the mere fact that a suit is against a federal officer does not support original jurisdiction thereof in the United States District Courts on the grounds of a federal question within the meaning of 28 United States Code § 1331. Johnston v. Earle, 245 F.2d 793 (Ninth Cir. 1957). Plaint...