Quinault Allottee Ass'n & Ind. Allot. v. United States

• Decision Date: 21 January 1972
• Docket Number: No. 102-71.,102-71.
• Citation: 197 Ct. Cl. 134,453 F.2d 1272
• Parties: The QUINAULT ALLOTTEE ASSOCIATION AND INDIVIDUAL ALLOTTEES Jennie Boome, et al. v. The UNITED STATES
• Court: U.S. Claims Court

197 Ct. Cl. 134, 453 F.2d 1272 (1972)

The QUINAULT ALLOTTEE ASSOCIATION AND INDIVIDUAL ALLOTTEES Jennie Boome, et al. v. The UNITED STATES

No. 102-71.

United States Court of Claims.

January 21, 1972.

Charles A. Hobbs, Washington, D.C., attorney of record for plaintiffs. Wilkinson, Cragun & Barker, and Charles H. Gibbs, Jr., Washington, D.C., of counsel.

Herbert Pittle, Washington, D.C., with whom was Asst. Atty. Gen. Shiro Kashiwa, for defendant.

Before COWEN, Chief Judge, LARAMORE, Judge, DURFEE, Senior Judge, and DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON PLAINTIFFS' MOTION FOR ORDER PROVIDING FOR GIVING OF NOTICE OF CLASS ACTION

DAVIS, Judge:

The claim made in this petition is for administrative charges which the Government has deducted from the proceeds of sales of timber from individual Indian allotments on the Quinault Reservation in the State of Washington. Under the General Allotment Act of 1887, as amended, 25 U.S.C. §§ 331, et seq., parcels within the Reservation, mainly forest lands, were allotted in trust to individual Indians, the great mass of whom are "noncompetent" (in the Indian sense). The Bureau of Indian Affairs has managed these tracts essentially as a single unit (known as the Quinault Forest), selling timber regularly to logging companies. From the proceeds credited to the allottees' trust accounts, the Bureau has, for many years, deducted an "administrative charge" of 10%. Plaintiffs' position is that this charge is being unlawfully collected, contrary to the General Allotment Act, the Fifth Amendment, and the trust patents, and the affected Indians are entitled to recover (with interest) the total of the deductions within the limitations period.

The petition was filed (on March 15, 1971) in the name of The Quinault Allottee Association and of three individual allottees "on their own behalf and on behalf of all individual allottees of the Quinault Reservation." After answer but before any other significant proceedings, plaintiffs moved for an order making provision for the giving of appropriate notice of the pendency and nature of this action to the allottees of the Quinault Reservation (or their successors) shown on a list supplied by the movants. Characterizing this as a "class action", plaintiffs ask us to invoke procedures parallel to those of Rule 23 of the Federal Rules of Civil Procedure.

We are told (and defendant does not deny) that there are over one thousand Quinault Reservation allottees in the same position as the three individual plaintiffs, the interest of these allottees vary from full ownership of one or more allotments to fractional interests in a single allotment, the legal question raised by the petition as to the Government's liability is common to the entire group, the claims and defenses of the named individual plaintiffs are typical of the claims and defenses of the group, and the separate claims of many of the individual allottees are very small in amount. The Quinault Allottees Association is an organization of these allottees, numbering now over 530 members. Both the Association and the individual plaintiffs assert that they can and will fairly and adequately protect the interests of the entire group, and they deem all the prerequisites of Rule 23, F.R.C.P., for designation as a class action to have been met. The defendant opposes the motion and sees no power, as well as no need, to characterize or treat this as a class action.

I

We reject, at the outset, the Government's broadside challenge to the power of this court to entertain class actions (apparently of any type or character). Under 28 U.S.C. § 2071 we can prescribe rules for the conduct of our business, just as 28 U.S.C. § 2072 authorizes the promulgation of rules of civil procedure for the district courts. Obviously, Rule 23, F.R.C.P., was within the Supreme Court's mandate to adopt rules of "practice and procedure" for the district courts; the class suit is basically a procedural technique for resolving the claims of many individuals at one time (Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 560 (C.A.2, 1968)), comparable to joinder of multiple parties and intervention. There is no reason why this court cannot use the same device, if it is appropriate. So long as relief is confined to a money judgment (United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); Glidden Co. v. Zdanok, 370 U.S. 530, 557, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), there is nothing in the type of jurisdiction we have, or the fact that claims in this court are normally against the United States, to deprive us of this modern aid to speedier and less repetitious litigation. Congress has limited us to monetary judgments but it has not said or implied that we cannot use new procedural techniques, if we consider them advisable, in deciding whether or not to make monetary awards in fair and efficient fashion. The directive that waiver of sovereign immunity not be read expansively (e.g., United States v. King, 395 U.S. 1, 4, 5, 89 S.Ct. 1501, 23 L.Ed. 2d 52 (1969)) goes to the relief we can award, the subjects we can consider, and the timing of claims, not the intermediate procedural steps we take in cases plainly within our jurisdiction. Long ago, the Supreme Court said that in hearing and determining the causes that come before this court for adjudication "we see no reason why it the Court of Claims may not use such machinery as courts of more general jurisdiction are accustomed to employ under similar circumstances to aid in their investigations." United States v. Raymond, 92 U.S. 651, 654, 23 L.Ed. 756 (1875).¹

Rule 23 F.R.C.P. is applicable to all civil litigation in the district courts even though they have Tucker Act jurisdiction up to $10,000 and unlimited Tort Claims Act jurisdiction. The only decision on the point holds that those courts can entertain class actions pursuant to Rule 23 against the United States under both of those statutes. Northern Natural Gas Co. v. Grounds, 292 F.Supp. 619, 641-644 (D.Kans.1968). Since the district courts' Tucker Act jurisdiction is "concurrent with the Court of Claims" (28 U.S.C. § 1346(a)) and the Tort Claims Act is comparable to the Tucker Act in all respects pertinent to this case (both involve claims against the United States for money only), we can see no distinction between the power of the district courts and of this court to accept class suits against the United States. Indeed, if there were, an unfair inconsistency would be created between claimants asking more than $10,000 and those demanding less.

Though we have not adopted a rule akin to Rule 23 nor have we gone as far as that provision permits in binding absent members of a class, this court has acknowledged both that groups of claimants can join together in "class" suits, and that special procedures may be applicable to that category of litigation. Our Rule 221 provides for a smaller filing fee in a case involving less than $500 if "it is not a class case." We have at times envisaged class and representative suits here. Lucking v. United States, 102 Ct.Cl. 233, 239, 243, 245 (1944). In fact, Indian cases have several times been denominated or treated as class actions. An old one is United States v. Old Settlers, 148 U.S. 427, 479-480, 13 S.Ct. 650, 37 L.Ed. 509 (1893). More recent examples are Menominee Tribe of Indians v. United States, 388 F.2d 998, 1000, 179 Ct.Cl. 496, 499 (1967), aff'd, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Klamath and Modoc Tribes v. United States, 174 Ct.Cl. 483, and Anderson v. United States, 174 Ct.Cl. 483 order of April 24, 1964; Short v. United States, No. 102-63, order of April 15, 1966. See, also, McGhee v. Creek Nation, 122 Ct.Cl. 380, 394, cert. denied, 344 U.S. 856, 73 S.Ct. 91, 97 L.Ed. 665 (1952). Despite the defendant's argument, we have no sufficient reason to question the legality of this practice.²

II

Of course, the existence of power in this court to adopt a rule equivalent to Rule 23, F.R.C.P., or without such a rule to borrow those district court provisions in a particular case of our own, does not mean that we must or should do so. We often follow the practice and procedure of the district courts (Love v. United States, 104 F.Supp. 102, 122 Ct. Cl. 144, 149 (1952)), but there is no compulsion; we have departed from the Federal Rules in other aspects, such as discovery. The fact is that, even though present Rule 23 has been in effect since 1966, we have not adopted an analogue or parallel. The practice in class suits (including the prescription of standards for giving actions that characterization) is still flexible and open in this forum.

We have now decided that, for the time being, we will not adopt or promulgate any general rule on the subject, though we shall continue to consider that possibility for the future. Rule 23, particularly the part which contemplates binding absent members of the class, has evoked controversy, and "the jury is not yet in." Wright, Class Actions, 47 F.R. D. 169, 170-71 (1970); see, also, Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 43-47, 52; Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 560-561 (C.A.2, 1968). The former Rule 23, replaced in 1966, is no longer considered an acceptable model. Id. Above all, the "class suit" is a rainbow concept, merging many shades and forms of multiple claim litigation into one summary phrase. Some of these forms may fit our cases, others not. It may possibly be that not all of the current Rule 23 mechanisms may be needed or apt for this court, or will work efficiently here. Time, experience, and perhaps experiment should precede the jelling of an over-all formula.

We could, of course, refuse to take any steps at all until a general rule is prescribed, but we think the better road to follow, until we are clearer as to the shape of the class-suit needs in this court and the functioning of various class-suit devices, is to proceed...