Rowe v. U.S., No. 79-4249

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WALLACE, HUG and SCHROEDER; WALLACE
• Citation: 633 F.2d 799
• Parties: Richard ROWE, Jack Fricke, Walter Sczudlo, Denny Breaid, Charles Lafferty, Elkan Morris, Dan Guadianne, Edwin Samay, New State Finance, Inc., First National Bank of Fairbanks, Executor of the Estate of Robert Briggs, deceased, Dan Ramrus, Robert J. Collins, Len Hannaman, Walter Wigger, Winnifred Wigger, Paul Greimann, Jr., E. B. Joiner, G. M. Anderson, J. B. Appling, Saradell Ard, Burton Arrestad, Joseph Babinec, Quinton Christensen, Juana Edwards, G. H. Drumheller, Gayle Fogelson, Kenneth Gain, Otto Green, Mathew Hamann, Ernest Holm, R. C. Kiltz, Frances Machado, Kenneth Rankin, H. G. Schiff, W. A. Tweedy, James Vanderweele, Richard Warren, et al., Merrill Wien, Douglas Millard, W. Zaegel, Tom Thomas, E. G. Schoot, W. M. Shear, F. Zawaki, Paul Greimann, Sr., Flora Greimann, Plaintiffs-Appellants, v. UNITED STATES of America, Thomas S. Kleppe, Secretary of the Interior, and The Arctic Slope Regional Corporation, Defendants-Appellees.
• Decision Date: 28 November 1980
• Docket Number: No. 79-4249

Page 799

633 F.2d 799 Richard ROWE, Jack Fricke, Walter Sczudlo, Denny Breaid,
Charles Lafferty, Elkan Morris, Dan Guadianne, Edwin Samay,
New State Finance, Inc., First National Bank of Fairbanks,
Executor of the Estate of Robert Briggs, deceased, Dan
Ramrus, Robert J. Collins, Len Hannaman, Walter Wigger,
Winnifred Wigger, Paul Greimann, Jr., E. B. Joiner, G. M.
Anderson, J. B. Appling, Saradell Ard, Burton Arrestad,
Joseph Babinec, Quinton Christensen, Juana Edwards, G. H.
Drumheller, Gayle Fogelson, Kenneth Gain, Otto Green, Mathew
Hamann, Ernest Holm, R. C. Kiltz, Frances Machado, Kenneth
Rankin, H. G. Schiff, W. A. Tweedy, James Vanderweele,
Richard Warren, et al., Merrill Wien, Douglas Millard, W.
Zaegel, Tom Thomas, E. G. Schoot, W. M. Shear, F. Zawaki,
Paul Greimann, Sr., Flora Greimann, Plaintiffs-Appellants,
v.
UNITED STATES of America, Thomas S. Kleppe, Secretary of the
Interior, and The Arctic Slope Regional
Corporation, Defendants-Appellees. No. 79-4249. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Sept. 12, 1980.
Decided Nov. 28, 1980.

Page 800

Spencer C. Sneed, Cole, Hartig, Rhodes, Norman & Mahoney, Anchorage, Alaska, for plaintiffs-appellants.

Robert L. Klarquist, Dept. of Justice, Washington, D. C., argued for defendants-appellees; Joshua I. Schwartz, Carl Strass, Washington, D. C., Kevin F. Kelly, Wickwire, Lewis, Goldmark & Schorr, Seattle, Wash., on brief.

Appeal from the United States District Court for the District of Alaska.

Before WALLACE, HUG and SCHROEDER, Circuit Judges.

WALLACE, Circuit Judge:

Several individuals (plaintiffs) appeal from the district court's entry of a summary judgment. The plaintiffs are persons who had won the opportunity to participate in a non-competitive bidding procedure for oil and gas leases on the Alaska North Slope. The defendants are the United States, the Secretary of the Interior (the Secretary), and the Arctic Slope Regional Corporation (ASRC). Despite having selected the plaintiffs as the recipients of the oil and gas leases, the Secretary ultimately awarded the lands that the plaintiffs sought to lease to the ASRC. The plaintiffs challenged the Secretary's award in an administrative proceeding, and, after an adverse ruling, sought federal judicial review.

In the district court, plaintiffs sought to compel the Secretary to award the oil and gas leases to them, rather than to the ASRC, and money damages. The district judge provided a complete recital of the facts. See Rowe v. United States, 464 F.Supp. 1060 (D.Alaska 1979).

The plaintiffs claim that by selecting their offers, the Secretary was bound contractually to issue the leases to them. The Secretary contends, on the other hand, that the selection of the plaintiffs' offers created no contractual commitment to issue leases. Rather, the Secretary contends that he was bound only to give priority to the persons whose offers were selected if he decided to issue the leases to anyone. We affirm in part and reverse and remand in part.

I

We first address the question of jurisdiction. The ASRC is the only party to have addressed the jurisdiction issue, and it has done so only briefly. We may, however, raise jurisdictional questions even if the parties fail to do so. See Continental Ins. Co. v. Cotten, 427 F.2d 48, 51 (9th Cir. 1970); 1 Moore's Federal Practice P 0.60(4), at 628-29 (2d ed. 1980).

The Tucker Act vests exclusive jurisdiction of contract claims against the United States in excess of $10,000 in the Court of Claims. 28 U.S.C. §§ 1346, 1491.

Page 801

Plaintiffs have raised a contract claim and have requested damages in excess of $10,000. The Court of Claims has exclusive jurisdiction over plaintiffs' claim for damages, and therefore, the district court was without jurisdiction to hear that part of the plaintiffs' claim.

Although plaintiffs have argued only their contracts claim on appeal, there is more to the case than a prayer for contract damages. If plaintiffs could have established a contract right, they would, arguably, have established a "valid existing right" within the meaning of § 14(g) of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1613(g). If plaintiffs had a "valid existing right," they would have had rights superior to those of the ASRC, and would, arguably, have had a right to the leases they sought. Therefore, plaintiffs' contract argument on appeal was directed not only to a claim for damages, but to a review of the Secretary's decision not to award the leases. Thus, the remaining jurisdictional question before us is whether the district court had jurisdiction to review agency action under these circumstances.

The district courts have jurisdiction, without regard to amount in controversy, over actions against the United States, its agencies or its officers acting in their official capacities. 28 U.S.C. § 1331(a). ¹ The Administrative Procedures Act (APA) provides for judicial review of agency action and a waiver of sovereign immunity ² in an action for relief other than money damages that states a claim that a...