United States v. Preston

• Decision Date: 02 December 1965
• Docket Number: No. 19361-19363.,19361-19363.
• Citation: 352 F.2d 352
• Parties: UNITED STATES of America, Eugene Segundo, Appellants, v. John W. PRESTON, Jr., etc., et al., Appellees. UNITED STATES of America, Carrie Pierce McCoy, Appellants, v. John W. PRESTON, Jr., etc., et al., Appellees. UNITED STATES of America, Ruth Elaine Patencio, Appellants, v. John W. PRESTON, Jr., etc., et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

352 F.2d 352 (1965)

UNITED STATES of America, Eugene Segundo, Appellants, v. John W. PRESTON, Jr., etc., et al., Appellees.

UNITED STATES of America, Carrie Pierce McCoy, Appellants, v. John W. PRESTON, Jr., etc., et al., Appellees.

UNITED STATES of America, Ruth Elaine Patencio, Appellants, v. John W. PRESTON, Jr., etc., et al., Appellees.

Nos. 19361-19363.

United States Court of Appeals Ninth Circuit.

October 28, 1965.

Rehearing Denied December 2, 1965.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Herbert Pittle, Attys., Dept. of Justice, Washington, D. C., Manuel L. Real, U. S. Atty., James S. Okazaki, Asst. U. S. Atty., Los Angeles, Cal., for appellant.

Oliver O. Clark, La Canada, Cal., Elmer H. V. Hoffman, Morris Lavine, Los Angeles, Cal., for appellees.

Before POPE, MERRILL and BROWNING, Circuit Judges.

POPE, Circuit Judge.

These are appeals from orders in three actions denying appellants' motions to dismiss on the grounds that the district court lacked jurisdiction and that the claims failed to state claims warranting relief. In each case the trial judge made the certificate provided for in Title 28 § 1292(b) so as to authorize an immediate appeal. This court permitted the appeals as provided in that section.

At the oral argument appellees asserted for the first time that the appeal was not taken in time. Following that, counsel for appellants filed affidavits and documents for the purpose of showing that the appeal was perfected within time. We find that the appeal was timely taken and perfected.¹

Each of these actions was brought against the United States and an individual defendant. Except for the fact that the individual defendants differ, the complaints in the three cases are identical. For convenience we state the allegations in No. 19,361 in which Eugene Segundo was named as an individual defendant along with the United States.²

The complaint sets out the following allegations. The defendant Segundo is and was a native American of Indian birth and a regularly enrolled member of the Agua Caliente Band of Mission Indians of California. This band of Indians had been in possession of the Agua Caliente reservation embracing 30,000 acres of land in Riverside County, California. Title to the land was vested in the United States as trustee for the Indians. The Act of Congress commanded that land within the reservation be allotted to the members of the band, but the Secretary of the Interior refused to allot lands to the individual Indians. An action was brought by several of the adult members of the band to compel the allotment but that action was unsuccessful in the district court. The denial of relief was affirmed by the Court of Appeals and certiorari was denied by the United States Supreme Court.³

The complaint further alleges that thereafter the adult members of the band of Indians consulted two of the plaintiffs, Clark and Sallee, and orally requested them to commence an action in the United States District Court for the benefit of the band in the name of Lee Arenas to seek an adjudication which would compel the Secretary to make such allotments. Said plaintiffs agreed to institute that action as attorneys for said Indians and prosecute it to final judgment and do everything necessary to procure such allotments in severalty charging their fees upon a contingent basis. Pursuant to this agreement an action was instituted by such attorneys on December 24, 1940 in the name of Lee Arenas only, as plaintiff, against the United States to compel the allotment under the statute. "That said action was brought in the name of said Lee Arenas for the reason that he had not been a party to such former action, and therefore was not bound thereby." Thereafter summary judgment was entered in that action in favor of the defendant the United States and the judgment was affirmed by the Court of Appeals on June 30, 1943.⁴ Certiorari was granted by the Supreme Court and on May 22, 1944, the judgment of the Court of Appeals was reversed and the cause was remanded for a trial on its merits.⁵ On retrial of the cause judgment was entered directing allotment to Arenas of the lands claimed by him, and this judgment was affirmed on appeal.⁶ Certiorari was denied. Ultimately the Secretary's refusal to allot lands to Arenas as directed in the judgment was compelled by mandamus and about the month of May, 1948, the writ directed that the allotment be made.

The complaint continues that during this period of time, while the aforesaid matters were proceeding, defendant Segundo pursuant to his former oral agreement of employment executed a contract in writing with attorneys Clark and Sallee, and John W. Preston, which contract is alleged to have been attached to the complaint.⁷ The services of these attorneys was completed on June 30, 1963 "by the consent of all the members of said band properly given to abandon any further proceedings in respect of said allotments, and to accept said allotments as theretofore made." Plaintiffs allege that due to services rendered by them as attorneys employed by the defendant Segundo he has received an allotment of land which has a value in excess of $400,000; that reasonable compensation for the services rendered to Segundo is at least 25 percent of the value of the allotment made to him no part of which has been paid or satisfied, and that all of the services rendered and everything done by the said attorneys was for the benefit of all the members of the band of Indians and was so understood by them.

Judgment was prayed for the reasonable value of the services rendered by Preston, Sallee and Clark under their contract of employment; that payment of the judgment be secured by the imposition of a lien upon the land allotted to the defendant Segundo, and that plaintiffs recover from him his proportionate share of the expenses incurred in the performance of such services.

Reduced to its essentials the plaintiffs' alleged cause of action is laid in contract. The essence of the contract was that Segundo, among others, made an agreement in writing with plaintiff attorneys. They would commence an action in the name of Lee Arenas to seek an adjudication that the Secretary was obliged to allot land to the members of the band of Indians. The plaintiffs would in that connection prosecute the action to judgment and do everything required to protect the interests of the members of the band in respect to the allotments, all upon a contingent basis whereby they would receive nothing for their services unless successful, but if successful, they would receive a reasonable compensation for their services in addition to their expenses incurred; that since the action on behalf of Lee Arenas was successful and plaintiffs' services under the said employment were completed on June 30, 1963, at which time allotments had been made, including an allotment to Segundo, which is worth in excess of $400,000, the plaintiffs' compensation is due and no part of it has been paid, and judgment is sought accordingly. In short it is alleged that Segundo entered into a contract in writing with the plaintiffs; that plaintiffs have performed their part of it and are entitled to pay for their services and accordingly they seek judgment. Although the United States is named as a defendant, no claim is stated against it. It is not alleged that the United States entered into any contract to pay plaintiffs anything.

Plaintiffs undertake to invoke jurisdiction of the district court under Title 28 U.S.C. §§ 1360 and 2201 and Title 25 § 345. We are unable to perceive how any of these sections have any application here. § 1360 provides in substance that the State of California shall have jurisdiction over civil causes of action to which Indians are parties which arise in the areas of Indian country to the same extent that such State has jurisdiction over other civil causes of action. The most that this could mean is that the plaintiffs might have sued Segundo in a court of the State of California. § 2201 authorizes action seeking declaratory relief. That section in itself adds nothing to the jurisdiction of the federal courts. As has been noted the section provided an additional remedy in the federal courts but did not extend their jurisdiction. "But the requirements of jurisdiction — the limited subject matters which alone Congress had authorized the District Courts to adjudicate — were not impliedly repealed or modified." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 70 S.Ct. 876, 879, 94 L.Ed. 1194.

Section 345, Title 25, the main text of which is set out in the margin,⁸ has no relation whatever to the actions brought here. It permits action to be brought by persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land and the action is one to determine the right of such person of Indian blood to an allotment of land under any law or treaty. There is no claim that the plaintiffs in this case are persons of Indian blood nor is this action one to claim an allotment of land. So far as the United States is concerned, even if a claim against it had been asserted here, if cannot be sued without its consent. Section 345 gives no general consent of the United States to be sued even in connection with its administration of allotments, much less for the recovery of attorneys' fees of this kind. United States v. Eastman, 9 Cir., 118 F.2d 421, 423. It is elementary that the United States cannot be sued without its consent. Nothing called to our attention here points to any such consent. The suit against Segundo is not claimed to be predicated upon any diversity of citizenship and hence that portion of the action falls to the ground.

The appellees undertake to argue that the case of Arenas v. Preston, 9 Cir., 181 F.2d 62, supports their claim that § 345 permits recovery of attorneys' fees here since attorneys' fees were allowed and recovered in that case. Plaintiffs...