Fletcher v. United States , 160 F. App'x 792 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 29, 2005
TENTH CIRCUIT
Clerk of Court
WILLIAM S. FLETCHER, CHARLES
A. PRATT, JUANITA W. WEST,
CORA JEAN JECH, BETTY WOODY
and JOHN BERREY, Individually, and
as members of the OSAGE
DEVELOPMENT COUNCIL,
Plaintiffs-Appellants,
v. No. 04-5112
UNITED STATES OF AMERICA; (N. D. Oklahoma)
UNITED STATES DEPARTMENT
OF THE INTERIOR; GAIL NORTON, (District Court No. 02-CV-427-E)
Secretary of the Interior; BUREAU OF
INDIAN AFFAIRS; and NEAL A.
McCALEB, Assistant Secretary of the
Interior-Indian Affairs,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, MCWILLIAMS, and MURPHY, Circuit Judges.
The plaintiffs William S. Fletcher, Charles A. Pratt, Juanita W. West, Cora
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
Jean Jech, Betty Woody, and John Berrey appeal the district court’s dismissal of
their complaint for failure to join the Osage Tribal Council as a necessary and
indispensable party. Because of the unique posture of this case, the district court
did not address two of the plaintiffs’ claims for relief. We therefore vacate the
order of dismissal as to those claims and remand for further proceedings.
I. BACKGROUND
The plaintiffs are descendants of Osage Indians listed on the tribal rolls at
the time of the Osage Allotment Act of 1906, Pub. L. No. 59-321, 34 Stat. 539.
As the district court explained, the 1906 act directed the preparation of a final
membership roll of the Osage Tribe. Each individual on the final roll received an
interest in the tribal mineral estate. The Osage Allotment Act further provided
that the mineral estate would be managed by a tribal council selected at periodic
tribal elections in the manner prescribed by the Commissioner of Indian Affairs.
The Bureau of Indian Affairs then promulgated regulations limiting voting and
holding office to those adult members of the tribe who possessed mineral
interests. See 90 C.F.R. pt. 90 (2005). The regulations provided that each ballot
cast had exactly the same proportional value as the voter’s mineral interest. See
90 C.F.R. § 90.21 (2005).
The plaintiffs filed this action in federal district court in March 2002.
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Their complaint asserts four causes of action: (1) a claim that the defendants
violated their right to political association and participation in the Osage
government; (2) a claim that the defendants breached their trust responsibilities
by (a) eliminating the plaintiffs’ right to participate or vote in Osage tribal
elections, and (b) allowing mineral royalties to be alienated to non-members of
the Osage Tribe; (3) a Fifth Amendment takings claim; and (4) a claim that the
federal regulations regarding the Osage Tribe violated their right to participate in
their government and the defendants’ trust responsibilities. See Aplts’ App. at
65-78 (Complaint filed May 31, 2002). 1
In their request for relief, the plaintiffs sought: (a) an order holding that the
federal regulations pertaining to Osage tribal elections violated their
constitutional rights; (b) an order holding that the defendants breached their trust
responsibilities by restricting the plaintiffs’ right to participate in tribal elections
and by allowing Osage mineral interests to be alienated to non-Osages; (c) an
order holding that, by allowing the alienation of mineral interest to non-Osages,
the defendants effected an unconstitutional taking of a protected property interest.
The defendants moved to dismiss the complaint for failure to join the
1
The plaintiffs’ voting rights challenges had been unsuccessfully prosecuted in
two prior federal cases. See Fletcher v. United States, 116 F.3d 1315 (10th Cir.
1997); Logan v. Andrus, 640 F.2d 269 (10th Cir. 1981).
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principal governing body of the Osage Tribe, the Osage Tribal Council, as a
necessary and indispensable party under Fed. R. Civ. P. 19. The district court
granted the motion and dismissed the complaint.
The court first concluded that the Tribal Council was a necessary party
under Fed. R. Civ. P. 19(a), reasoning that “it is clear that granting the remedy
requested by the Plaintiffs would require a significant change in voting
procedures and result in a significant change in the government and membership
of the tribe, even if there is no specific proposal to accomplish either of those
things in the Complaint.” Aplts’ App. doc. C, at 4-5 (Order, filed July 6, 2004).
Thus, the court stated, “[w]hat Plaintiffs are asking for affects a substantial
interest of the Tribal Council, and granting such relief could directly compromise
those interests.” Id. at 5 (internal quotation marks omitted).
The district court then concluded that the Council was an indispensable
party under Fed. R. Civ. P. 19(b). It considered: (1) the plaintiffs’ interest in
having a forum; (2) the defendants’ interest in avoiding inconsistent relief; (3) the
interests of the party alleged to be indispensable; and (4) the interests of the
courts and the public in complete and efficient settlement of controversies. See
id. at 6 (citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S.
102, 109-111 (1968)). The court found that “a judgment rendered in the Tribal
Council’s absence has the potential of being prejudicial to both the Tribal Council
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and the Defendants” and noted that it was not convinced that the defendants
would adequately represent the Council’s interests. Id.Significantly, in applying Fed. R. Civ. P. 19 to the plaintiffs’ complaint, the
district court discussed only the plaintiffs’ allegations regarding the denial of
their voting rights. Thus, the dismissal order does not explain why the Council is
a necessary and indispensable party as to the plaintiffs’ other claims.
II. DISCUSSION
On appeal, the plaintiffs do not challenge the district court’s dismissal of
those parts of their claims that concern their voting rights. They note that on
December 3, 2004, after the district court dismissed their complaint, Congress
passed the Reaffirmation of Certain Rights of the Osage Tribe, Public Law 108-
431, 118 Stat. 2609. That statute maintains the system for assigning mineral
interests but grants the Osage Tribe the right to determine membership for other
purposes. Pub. L No. 108-431, § 1(b)(1). According to the plaintiffs, “[their]
first request–that they obtain the right to participate in the affairs of the Osage
Nation as members–appears to have been obtained.” Aplts’ Br. at 4 n.1.
However, the plaintiffs do challenge the district court’s dismissal of their
breach of trust and Fifth Amendment takings claims insofar as those claims
concern the alleged wrongful transfer of mineral interests to non-Osages. They
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note that the district court did not discuss that part of those claims at all: its
discussion of why the Osage Tribal Council was a necessary and indispensable
party was based entirely on the Tribal Council’s authority over determinations of
membership and governmental structure. See Aplts’ App. doc. C, at 4-5.
However, the plaintiffs argue, as to the breach of trust and takings claims,
the Tribal Council is not a necessary or indispensable party. The plaintiffs
maintain that the Council does not hold the royalties of the Osage mineral estate
for members of the Tribe and that it does not distribute those royalties. Further,
the plaintiffs reason, the Tribal Council is not the beneficiary of the royalties
resulting from the oil and gas development. Instead, the royalties are held by the
federal officials and are paid directly to individual Osages, as mandated by the
1906 act. Aplts’ Br. at 11-12 (discussing The Osage Allotment Act of 1906, Pub.
L. No. 59-321, 34 Stat 539, § 4) “At most,” the plaintiffs state, “the Tribal
Council could assert that it is ‘interested’ in seeing that members of the Tribe are
paid what they are due, or perhaps that the Osage Nation holds the headrights and
desires payment of royalties to itself.” Aplts’ Br. at 12. However, the plaintiffs
assert, any such interests of the Tribal Council are aligned with the plaintiffs’
own interests. In any event, the plaintiffs conclude, the district court made no
findings about the Tribal Council’s interest in the payment of royalties. Thus, a
remand for further findings is warranted.
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The defendants respond that the district court properly dismissed the breach
of trust and takings claims for a reason not discussed in the order—because the
district court lacks jurisdiction over claims against the United States. Here, the
defendants note, the plaintiffs asserted jurisdiction under section 702 of the
federal Administrative Procedures Act, 5 U.S.C. § 702, which provides:
An action in a court of the United States seeking relief
other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the
United States is an indispensable party.
5 U.S.C. § 702 (emphasis added).
The defendants argue that the plaintiffs’ breach of trust and takings claims
are for money damages, and that, as a result the United States has not waived its
sovereign immunity through § 702. In the alternative, the defendants argue that
even if the district court had jurisdiction, the Osage Tribal Council is still a
necessary and indispensable party under Fed. R. Civ. P. 19 such that the court’s
dismissal of those claims is warranted.
We will first address the jurisdictional issue regarding 5 U.S.C. § 702.
Then, we turn to the question of whether the Osage Tribal Council is a necessary
and indispensable party under Fed. R. Civ. P. 19. We consider the first issue de
novo. See Shaw v. United States, 213 F.3d 545, 548 (10th Cir. 2000). We review
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the district court’s determinations under Fed. R. Civ. P. 19 for an abuse of
discretion. Davis ex rel. Davis v. United States, 343 F.3d 1282, 1289 (10th Cir.
2003). However, we consider de novo any legal conclusions underlying those
rulings. Id.A. Waiver of Immunity under 5 U.S.C. § 702The defendants’ jurisdictional challenge requires us to construe § 702.
In Bowen v. Massachusetts, 487 U.S. 879 (1988), the Supreme Court held that a
district court had jurisdiction under § 702 to review a Health and Human Services
order refusing to reimburse a state for a category of Medicaid expenditures. The
Court distinguished between (a) “money damages” and (b) judicial remedies that
may require one party to pay money to another party but are nevertheless not
“money damages.” Id. at 894. As examples of the latter category, the Court
listed “an equitable action for specific relief--which may include an order for the
reinstatement of an employee with backpay, or for the recovery of specific
property or monies, ejectment from land, or injunction either directing or
restraining the defendant officer’s actions.” Id. at 893 (internal quotation marks
and emphasis omitted). The Court cited Judge Bork’s explanation in a D.C.
Circuit opinion:
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The term ‘money damages,’ 5 U.S.C. § 702, we think,
normally refers to a sum of money used as compensatory
relief. Damages are given to the plaintiff to substitute for
a suffered loss, whereas specific remedies ‘are not
substitute remedies at all, but attempt to give the plaintiff
the very thing to which he was entitled. Thus, while in
many instances an award of money is an award of
damages, occasionally a money award is also a specie
remedy.
Id. at 895 (quoting Maryland Dep’t of Human Res. v. Dep’t of Health
and Human Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985) (internal quotation
marks and citations omitted)).
The Supreme Court concluded that the state’s suit to enforce a provision of
the Medical Act, which provided that the Secretary of Health and Human Services
“shall pay” certain amounts for services, see 42 U.S.C. § 1396b(a), was “not a
suit seeking money in compensation for the damage sustained by the failure of the
Federal Government to pay as mandated.” Bowen, 487 U.S. at 900. Rather, the
Court stated, the state had sought “to enforce the statutory mandate itself, which
happens to be one for the payment of money.” Id.Here, the plaintiffs argue, their breach of trust and takings claims resemble
the state’s claim in Bowen: they allege that the federal defendants have violated a
statutory duty under the 1906 act to pay royalties only to tribal members, and they
seek an order declaring that the statute has been violated. In contrast, the
defendants do not address Bowen. Instead, they cite Tenth Circuit decisions
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holding that, “when the prime objective or essential purpose of the complaining
party is to obtain money from the federal government, (in an amount of in excess
of $10,000), the Court of Claims exclusive jurisdiction is triggered.” Aples’ Br.
at 9-10 (citing Eagle-Picher Indus. v. United States, 901 F.2d 1530, 1532-33 (10th
Cir. 1990); New Mexico v. Regan, 745 F.2d 1318, 1320-22 (10th Cir. 1984);
Alamo Navajo Sch. Bd., Inc. v. Andrus, 664 F.2d 229, 233 (10th Cir. 1981)). The
defendants contend that the plaintiffs’ “primary purpose” is obtaining money from
the federal government and that they are therefore seeking “money damages.” Id.
at 11.
We are not persuaded by the defendants’ contention. Notably, two of the
cases applying the “prime objective test” (Regan and Alamo Navajo School
Board) predate Bowen. Moreover, the one post-Bowen case cited by the
defendants acknowledges that the Tenth Circuit’s “prime objective” test may be
inconsistent with Bowen. Eagle-Picher, 901 F.2d at 1532 n.1. However, that
decision proceeds to distinguish Bowen on the grounds that the Supreme Court
case did not involve a government contract. See id. (stating that “[u]nlike the
cases discussed above and the present action, however, the claim in Bowen did
not relate to a government contract” and that “[s]uch cases must be filed in the
Claims Court”).
Here, unlike the claims in Eagle-Picher, the plaintiffs’ breach of trust and
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takings claims do not relate to a government contract. Moreover, like the state
plaintiff in Bowen, the plaintiffs here contend that the defendants have failed to
perform a statutory duty to pay them money, specifically royalties from oil and
gas production to which they are entitled pursuant to the 1906 statute. Cf. Cobell
v. Norton, 240 F.3d 1081, 1094-95 (D.C. Cir. 2001) (noting that (a) “section 702
of the Administrative Procedure Act waives federal officials’ sovereign immunity
for actions ‘seeking relief other than money damages’ involving a federal
official’s action or failure to act[;]” (b) “[i]nsofar as the plaintiffs seek specific
injunctive and declaratory relief--and, in particular, seek the accounting to which
they are entitled--the government has waived its sovereign immunity under this
provision[;]” (c) “plaintiffs[’] rel[iance] upon common law trust principles in
pursuit of their claim is immaterial, as here they seek specific relief other than
money damages[;] and [d] federal courts have jurisdiction to hear such claims
under the APA”); Southeast Kansas Cmty. Action Program Inc. v. Sec’y of Agric.,
967 F.2d 1452, 1456 (10th Cir. 1992) (concluding that the plaintiffs’ claims,
which sought, in part, an order requiring funding of child nutrition program until
a hearing could be held, did not seek “money damages” under § 702).
Additionally, we note that at oral argument, the plaintiffs’ counsel
explained that his clients did not seek the payment of royalties that had been
withheld in the past. Instead, he explained, the plaintiffs sought an order
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directing the defendants to comply with the requirements of the 1906 act from the
date of the filing of the complaint in this case. The prospective nature of the
relief sought by the plaintiffs further supports their argument that they have not
sought “money damages.” See United States v. Testan, 424 U.S. 392, 403 (1976)
(distinguishing “between prospective reclassification [of a government employee],
on the one hand, and retroactive reclassification resulting in money damages, on
the other”).
Accordingly, we conclude that the breach of trust and takings claims at
issue here do not seek “money damages” under § 702. As a result, the district
court has jurisdiction over these claims.
B. Necessary and Indispensable Party Under Rule 19
In the alternative, the defendants argue that, even if the district court has
jurisdiction, dismissal of the plaintiffs’ breach of trust and takings claims is still
proper. According to the defendants, the Osage Tribe’s ownership of mineral
interests establishes that the Tribal Council is a necessary and indispensable party
with regard to those claims.
We decline the defendants’ invitation to apply Fed. R. Civ. P. 19 to the
plaintiffs’ breach of trust and takings claims without the benefit of the district
court’s analysis. The Rule 19 inquiry is case-specific. See United States ex rel.
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Hall v. Tribal Development Corp., 100 F.3d 476, 481 (7th Cir. 1996). Thus,
“[w]ithout factual findings this court cannot determine whether an analysis of the
. . . Rule 19(b) factors compels dismissal as a matter of law.” Davis v. United
States, 192 F.3d 951, 961 (10th Cir. 1999). Because the district court did not
apply Rule 19 to the plaintiffs’ breach of trust and takings claims, we must
remand the case to the district court to undertake the Rule 19 analysis in the first
instance. See id.III. CONCLUSION
Accordingly, we conclude that the district court has jurisdiction over the
plaintiffs’ breach of trust and takings claims at issue here, and that, as to those
claims, the district court should determine in the first instance whether the Osage
Tribal Council is a necessary and indispensable party under Fed. R. Civ. P. 19.
We therefore VACATE the district court’s order of dismissal and REMAND the
case for further proceedings consistent with this order and judgment.
Entered for the Court
Robert H. Henry
Circuit Judge
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