Pueblo of Santo Domingo v. United States , 647 F.2d 1087 ( 1981 )

KUNZIG, Judge,

delivered the opinion of the court:

This is a petition originally filed with the Indian Claims Commission (ICC) in 1951 pursuant to the Indian Claims Commission Act, 25 U.S.C. §§ 70 et seq. (1976). The petition alleged various trespasses by the federal Government on petitioner’s alleged tribal lands.¹ On October 29, 1969, attorneys for both sides filed a stipulation with ICC that the lands had in fact been taken and that the Government was liable for just compensation. This represented a significant change in the theory of the case. ICC thereafter determined the extent of the lands taken and the taking dates in a decision of May 9, 1973. 30 Ind. Cl. Comm. 234 (1973). This court then affirmed the holdings of ICC on this part of the case in an interlocutory appeal decided April 16, 1975. United States v. Pueblo of San Ildefonso, 206 Ct.Cl. 649, 513 F.2d 1383 (1975). The case, along with many others, was transferred to this court in an incomplete state upon the expiration of ICC’s statutory life in 1978. See 25 U.S.C. § 70v (1976). No determination of the proper amount of compensation has yet been made.

This cause now comes before the court upon various motions and objections all of which center upon petitioner’s request to withdraw from the stipulation of October 29, 1969. Petitioner contends that its then attorneys were not authorized to enter the stipulation and that, consequently, the stipulation should not be deemed to have binding effect. Our single response is that it is far too late in the day to make a motion of this nature.

The governing rules and principles are of the type we refer to as "hornbook law.”

"An attorney employed for purposes of litigation has the general implied or apparent authority to enter into such stipulations or agreements, in connection with the conduct of the litigation, as appears to be necessary or expedient for the advancement of his client’s interest or to accomplishment of the purpose for which the attorney was employed.” 7A C.J.S. Attorney and Client § 205, at 341 (1980). "Such stipulations or agreements are binding on the client, without regard to the client’s actual knowledge or consent.” Id. at 341-342. "However, an attorney has no power to bind his client by an agreement or stipulation which he has not been expressly, impliedly, or apparently authorized to make.” Id. at 342. "[U]nless he has been specifically authorized to do so [i.e., not merely impliedly or apparently], an attorney may not by stipulation or agreement, surrender any substantial rights of his client. ...” Id.; see, e.g., Whitebird v. Eagle-Picher Company, 258 F.Supp. 308, 311 (N.D. Okla. 1966) (emphasis supplied). ”[TJhere is a strong rebuttable presumption that the acts of an attorney are within the scope of his employment, in the absence of a showing of the knowledge of the adverse party of restrictions thereon.” Id., § 172, at 258 (emphasis supplied). "There is a rebuttable presumption that an attorney has authority from his client to enter into a stipulation which may amount to a surrender of [his] client’s rights, unless [the] adverse party as well as [the] court is aware that the attorney is acting in direct opposition to his client’s instructions.” Id. at 259 n.84; accord, Pacific Tel. and Tel. Co. v. Fink, 296 P.2d 843, 847, 141 Cal. App. 2d 332 (1956). See also Navajo Tribe of Indians v. United States, 220 Ct.Cl. 360, 366, 601 F.2d 536, 539 (1979), cert. denied, 444 U.S. 1072 (1980).

Notwithstanding the foregoing limitations, "a client may be bound by a stipulation or agreement made by his attorney without express authority” where the client "fails to apply, seasonably, for relief from the stipulation.” Id., § 205, at 343 (emphasis supplied); accord, In re Estate of Moss, 248 N.E.2d 513, 516, 109 Ill. App. 2d 185 (1969) (unseasonable to attempt to withdraw from stipulation seven months after entry). The rationale presumably lies in the rule of agency that, "An affirmance of an unauthorized transaction can be inferred from a failure to repudiate it.” REST. (SECOND) OF AGENCY § 94 (1958). Petitioner’s attempt herein to withdraw from a stipulation entered nearly twelve years ago falls egregiously outside the permissible range of delay.

It has been said that, "Stipulations are looked upon with favor by the courts, since they tend to promote disposition of cases, simplification of issues and the saving of expense to litigants. The ends of justice are furthered by stipulations of settlement and the reluctance of courts to vitiate such agreements is founded in fundamental logic.” Moss’ Estate, 248 N.E.2d at 516.

Procedurally, the pending motions are governed by Rule 152(b) of this court’s rules of procedure. See also FED. R. CIV. P. 60(b). Rule 152(b) commands that the motion shall be made within a "reasonable time”. We have stated that the Rule requires "diligence” upon the part of the moving party. Andrade v. United States, 202 Ct.Cl. 988, 996, 485 F.2d 660, 664 (1973), cert. denied sub nom. Pitt River Tribe v. United States, 419 U.S. 831 (1974). Again, the conclusion is unavoidable that petitioner has tarried far too long. Time is now especially of the essence since Congress has expressed its desire that the special Indian claims litigation be wound up by having terminated the operations of the ICC in 1978.

All other arguments raised by petitioner, although not directly addressed in this opinion, have been considered and found to be without merit.

Accordingly, after consideration of the submissions of the parties, without oral argument of counsel, all of petitioner’s interrelated motions and objections are denied. Defendant’s objections are sustained. The case will go forward in the trial division in accordance with the stipulation of October 29, 1969, the ICC decision of May 9, 1973, and this court’s affirming opinion of April 16, 1975.

1 Under the Indian Claims Commission Act, the ICC had jurisdiction over "claims in law or equity arising under the Constitution, laws, [and] treaties of the United States”, “all other claims in law or equity, including those sounding in tort”, and “claims arising from the taking by the United States . . .of lands owned or occupied by the claimant”. 25 U.S.C. § 70a (1976). The original petition herein sounded in tort. No taking had yot been alleged.