author: KUNZIG, Judge.

text:
    John H. YEE v. The UNITED STATES.
    No. 449-73.
    United States Court of Claims.
    March 19, 1975.
    As Amended on Denial of Rehearing May 30, 1975.
    Rehearing En Banc Denied May 30, 1975.
    Norman Lew, San Francisco, Cal., atty. of record, Paul S. Fong, San Francisco, Cal., of counsel, for plaintiff.
    Kenneth J. Ingram, Dept, of Justice, Wash., D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before DAVIS, KASHIWA and KUN-ZIG, Judges.
   KUNZIG, Judge.

The primary question before us in this military pay case is whether the failure of the Air Force Board for the Correction of Military Records (AFBCMR) to remove promotion pass overs from plaintiff’s record was arbitrary and capricious. A secondary question concerns the Air Force Accounting and Finance Center and whether it improperly offset civilian earnings in computing plaintiff’s back pay and allowances after his erroneous discharge in 1965.

As to the primary issue, we hold the action of the AFBCMR to have been arbitrary and capricious. Secondly, we hold the Air Force Accounting and Finance Center to have been correct in offsetting civilian earnings from plaintiff’s award of back pay.

Facts

Plaintiff enlisted in the Air Force on October 9, 1954, and was appointed a Second Lieutenant on April 20, 1960. On April 20, 1964, plaintiff’s automobile-was involved in a head-on collision in which he suffered physical injury. Due to this injury, he was discharged from the Air Force on March 31, 1965 with severance pay in the grade of Captain. Plaintiff appealed his discharge to the AFBCMR which initially denied his appeal, but subsequently recommended that he be reinstated to active duty. On July 6, 1970, over 5 years after his discharge, the Assistant Secretary of the Air Force held plaintiff’s discharge constituted an injustice, directed that his records be corrected in accordance with the AFBCMR recommendation, and ordered plaintiff’s reinstatement to the grade of Captain with appropriate back pay and allowances.

Prior to plaintiff’s reinstatement, the Assistant Secretary of Defense directed the Assistant Secretaries of the military departments to require deduction of interim civilian earnings from amounts found due members or former members of the uniformed services by reason of the correction of their military records. Thus, when the Air Force Accounting and Finance Center computed the amount due plaintiff on September 2, 1970, plaintiff’s civilian earnings of $26,-336.67 were offset from the $44,262.55 he would have received had he not been erroneously and unjustly discharged. Plaintiff did receive a net of $17,925.88.

On December 7, 1970, just four months after his reinstatement, plaintiff was considered by a Selection Board for promotion to the grade of Major, but was not selected. At that time, there was only one Officer Effectiveness Report (OER) concerning plaintiff’s performance at the grade of Captain in his selection folder, and no adequate explanation of the 1965-1970 gap in his career. Fearful that his pass over would prevent him from being promoted in the future, plaintiff again appealed for relief to the AFBCMR. Again the AFBCMR found in plaintiff’s favor. In voiding the December 7 pass over, the AFBCMR stated:

There can be no argument with the selection board’s decision that Captain Yee’s record, as reflected in his selection folder, did not merit his selection under the best qualified method of selection. Nevertheless, we concur with him that his consideration was unjust because of the long period (more than 5 years) in which, through no fault of his, he received no OERs. Accordingly, we recommend that his record be corrected to show that he was not considered for promotion in FY 1971 [December 7, 1970]. [quoting the advisory opinion of the Officer Promotion Branch, USAFMPC, dated 28 July 1971]

On August 23, 1971, the Assistant Secretary of the Air Force issued a directive to remove the pass over from plaintiff’s file. The pass over was thus voided, but without an adequate explanation of the 5-year gap in plaintiff’s selection folder, even though the AFBCMR knew his name would again be placed before a Selection Board in November, 1971.

Plaintiff subsequently was evaluated by the Selection Board on November 8, 1971. This Selection Board had access to only three OERs on plaintiff relating to his performance in the grade of Captain. (August 1, 1970 until October 8, 1971). In each of these OERs, plaintiff received an overall rating of “Exceptionally Fine.” Again plaintiff was not selected for promotion; and again, on June 12, 1972, plaintiff appealed to the AFBCMR. On August 21, 1972, plaintiff once more was considered by a Selection Board for promotion to the grade of Major; but once again, he was passed over. On May 7, 1973, plaintiff amended his June 12, 1972 appeal to the AFBCMR to include this new pass over.

Having now been officially passed over twice by Selection Boards, plaintiff was required by law to be honorably discharged as an officer from the Air Force. This discharge occurred on April 30, 1973. Plaintiff then immediately enlisted in the Regular Air Force on May 1, 1973 in the grade of Sergeant, in which position he still serves.

Plaintiff’s appeal for relief to the AFBCMR asserted in essence that he was not afforded a complete remedy in 1971 when his December 7, 1970 pass over was voided. He maintained that this lack of remedial action directly contributed to his subsequent pass overs in 1971 and 1972 and consequent discharge on April 30, 1973. On August 10, 1973, three months after plaintiff had been discharged as an officer and after a formal hearing had been conducted, the AFBCMR recommended that plaintiff’s application for relief be denied. In reaching its conclusion, the AFBCMR found the failure of the Selection Boards to be adequately briefed or advised of the reasons for the voiding of plaintiff’s December 7, 1970 pass over irrelevant. In addition, the AFBCMR gave little consideration to the gap in OERs in plaintiff’s selection folder for the period 1965-1970.

More importantly, it is difficult to find in the opinion of the AFBCMR how much weight, if indeed any weight, was placed on the fact virtually all plaintiff’s military problems stemmed from an original injustice committed by the Air Force itself. .

Rather, the AFBCMR found that plaintiff’s record of performance “speaks for itself” and does not “place him in a category that one would describe as quote ‘selective material’ unquote.” On August 21, 1973, the Assistant Secretary of the Air Force adopted this recommendation and directed that- plaintiff’s application for relief be denied.

On November 20, 1973, plaintiff, claiming jurisdiction under 28 U.S.C. § 1491, brought suit in this court to recover and receive (1) back pay and allowances and other relief for his allegedly improper discharge in 1973 and (2) $26,-336.67 for the alleged wrongful offset from his back pay and allowances award in 1970. For the reasons stated below, we hold for plaintiff on the discharge issue (while denying his request for promotion), and for defendant with regard to the offset of civilian pay.

I. The 1973 Discharge Issue

Plaintiff argues that the action of the AFBCMR in denying his request for relief was arbitrary and capricious. He therefore seeks back pay and allowances equal to the grade of Major or, in the alternative, the grade of Captain from the date of his allegedly invalid discharge. As collateral relief, he also seeks reinstatement as a commissioned officer with correction of his military records to reflect the same.

Although this is a close case, on the facts presented in these cross-motions for summary judgment we agree that the AFBCMR’s denial was arbitrary and capricious. By defendant’s own admissions, plaintiff had been, on two separate occasions, the victim of injustices caused by the Air Force: first, when plaintiff was erroneously discharged in 1965; and second, when plaintiff’s name was put before a Selection Board a mere four months after returning to active duty. What is not admitted, but is clear from the record, is that plaintiff continued to suffer from these two injustices because inadequate corrective action was taken to prevent recurring problems arising from the original error of the Air Force.

The primary factor which persuades us in plaintiff’s favor is the failure of the Air Force at any time completely to correct the injustice caused by plaintiff’s illegal discharge in 1965. The Air Force failed either to place an adequate explanation in plaintiff’s record of the 5-year gap in OERs (which was admittedly caused by Air Force error) or to withhold plaintiff’s name from submission to Selection Boards until sufficient time had elapsed for plaintiff to accumulate OERs. This failure prolonged the effect of the injustice until it ultimately led to plaintiff’s 1973 discharge.

In essence, plaintiff’s problems, since his 1970 reinstatement, stem mainly from his erroneous discharge in 1965. The AFBCMR, itself, when granting plaintiff’s request in 1971 to void his December 7, 1970 pass over, envisioned the need for one or both of the above corrective measures when it stated, “[plaintiff’s] consideration [for promotion] was unjust because of the long period (more than 5 years) in which, through no fault of his, he received no OERs.”

We believe it would have been virtually impossible for any Selection Board to give proper consideration to plaintiff unless it had access to an adequate explanation of the 5-year gap caused by the Air Force or, in the alternative, sufficient time had elapsed for OERs to accumulate on which it could have made an informed judgment. Yet the AFBCMR, N while recognizing the overall problem, merely voided plaintiff’s December 7, 1970 pass over. The failure of the AFBCMR to take either additional step rendered its decision only a partial correction. And in this case, a partial correction was no correction at all.

Defendant argues that any injustice suffered by plaintiff was corrected when his December 7, 1970 pass over was voided. Defendant points out that plaintiff was granted the specific relief he requested, i. e., the removal of the pass over from his selection folder. While this characterization of plaintiff’s request may be technically correct, we believe defendant, just as the AFBCMR, misses the true intent of plaintiff’s appeal. While plaintiff may have only requested the December 7, 1970 pass over be removed from his selection folder, his implicit request was to have this obstacle removed so that he might be fairly considered for future promotion. And this obstacle could only be removed effectively if corrective action were taken with respect to the 5-year void in OERs caused by his illegal discharge in 1965. Thus, the removal of his December 7, 1&70 pass over merely stayed, but did not correct, the injustice which, at least in part, caused the pass over. This removal was in itself an additional injustice for it not only failed to eliminate the cause of plaintiff’s complaint, but virtually insured continuation of the same problem.

Had the Air Force either put in plaintiff’s files an adequate explanation that his 5-year gap in OERs had been caused by an injustice committed by the Air Force itself, or delay plaintiff’s evalúation by Selection Boards until an appropriate number of OERs could have been accumulated, there can be little doubt this court might well have reached a far different conclusion in the instant case. But without either, we cannot agree with the AFBCMR when it said that plaintiff was given fair and just consideration for promotion by the November 8, 1971 and August 21, 1972 Selection Boards or that the absence of an adequate explanation in his files was irrelevant. For the foregoing reasons, we believe plaintiff could not have been given proper consideration by either Selection Board. As we stated in Weiss v. United States, 408 F.2d 416, 419, 187 Ct.Cl. 1, 7 (1969):

[T]he selection procedure must follow the law. The documents which are sent to a Selection Board for its consideration therefore must be substantially complete, and must fairly portray the officer’s record. If a Service Secretary place [sic] before the Board an alleged officer’s record filled with prejudicial information and omits documents equally pertinent which might have mitigated the adverse impact of the prejudicial information, then the record is not complete, and it is before the Selection Board in a way other than as the statute [10 U.S.C. § 5706] prescribes. [emphasis supplied]

Here it is evident that plaintiff’s record, through no fault of his own, was not complete.

The AFBCMR has the power, and the duty, to remove injustices and correct errors in servicemen’s records. 10 U.S.C. § 1552 (1970) states:

The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.

In this case, it is clear that the AFBCMR in 1971 only partially corrected and in 1973 totally failed to correct the injustice done to plaintiff. As this court has said before and reaffirms today, when a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its mandate. And such a violation, contrary to the evidence, is arbitrary and capricious. See Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. 488 (1973); Duhon v. United States, 461 F.2d 1278, 198 Ct.Cl. 564 (1972).

In Skaradowski, supra, we emphatically stated:

[T]he statutory charter of the boards for correction of military records (10 U.S.C. § 1552) provides for correction of “any military record” when considered necessary “to correct an error or remove an injustice” * * *. The court has absolutely no doubt that under this liberal standard, together with the admitted facts, the board was required to change plaintiff’s records * * * The board’s contrary determination was arbitrary and capricious under the controlling standard as well as unsupported by substantial evidence and legally erroneous. The record compelled the board to correct plaintiff’s records in order to “remove an injustice” against him. [emphasis original] Id. 628, 200 Ct.Cl. at 489.

The same rationale applies in the present case.

Military correction boards “have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief.” Duhon, supra, 461 F.2d at 1281, 198 Ct.Cl. at 570, quoting Caddington v. United States, 178 F.Supp. 604, 607, 147 Ct.Cl. 629, 634 (1959). While it is clear that the AFBCMR saw the injustice of plaintiff’s December 7, 1970 pass over, it is equally clear that, even with two separate reviews, it did not take sufficient steps to grant thorough and fitting relief. The AFBCMR knew in 1971 that plaintiff’s name would again be submitted to a Selection Board on November 8, 1971, yet failed to insure that plaintiff’s fate would not again be prejudiced* by the same 5-year gap in his record. The Board further knew the consequences of its silence when, in 1973, it reviewed plaintiff’s case after two subsequent pass overs and a forced discharge. Yet the AFBCMR still saw no reason to grant relief.

Thus, the abortive actions of two AFBCMRs did not succeed in removing an injustice, but rather in perpetuating one.

It follows that plaintiff, having been passed over twice by the invalid decisions of Selection Boards, was illegally discharged. Consequently, he is entitled to recover, but his recovery is limited to relief at the grade at which he was discharged. Public Law 92-415 allows this court to fashion a complete remedy in cases where appropriate. In pertinent part, it states:

To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate'official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.

If we were merely to award back pay and allowances at the grade of Captain from the date of illegal discharge, plaintiff would not be made whole. But we are empowered to do more and choose to exercise this power. We therefore order the Secretary of the Air Force to remove from plaintiff’s selection folder and from any other pertinent military records (1) plaintiff’s November 8, 1971 pass over; (2) plaintiff’s August 21, 1972 pass over; (3) plaintiff’s April 30, 1973 discharge as an officer; and (4) plaintiff’s May 1, 1973 enlistment. We direct the Secretary to reinstate plaintiff to the grade of Captain, effective April 30, 1973. And we further direct the Secretary to place in plaintiff’s selection folder an adequate explanation of the 5-year gap from 1965-1970 and the 1973 — 1975 gap, making it clear that these gaps were not caused by any fault on the part of plaintiff. We urge the Secretary to consider the scheduling of possible future evaluations of plaintiff by Selection Boards consistent with the spirit reflected above.

A court-ordered promotion to the grade of Major has also been requested by plaintiff. This we reject. Courts generally are not in the “promotion business.” Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Brenner v. United States, 202 Ct.Cl. 678 (1973), cert. denied, 419 U.S. 831, 95 S.Ct. 54, 42 L;Ed.2d 56 (1974); Muldonian v. United States, 432 F.2d 443, 193 Ct.Cl. 99 (1970); Clinton v. United States, 423 F.2d 1367, 191 Ct.Cl. 604 (1970). In the present case, we cannot say that, even if the Selection Boards had been given a complete record, plaintiff would necessarily or even probably have been promoted. We can only say that plaintiff should not have been discharged.

To summarize, we hold the action of the AFBCMR in denying plaintiff’s request for relief to have been arbitrary and capricious. We therefore award plaintiff back pay and allowances at the grade of Captain (while denying his request for promotion) and direct the Secretary of the Air Force to correct his records to reflect reinstatement consistent with the order of this court.

II. .The Offset Issue

In addition to relief from his forced discharge in 1973, plaintiff also seeks recovery of $26,336.67, the amount of civilian earnings offset when he was reinstated for the period from April 1, 1965 to July 5, 1970. Plaintiff alleges this deduction was erroneous since Air Force Regulation 31 — 3, effective October 1970, which authorizes the offsetting of civilian earnings was not in force and effect at the time the active duty pay accrued, nor was it in force and effect when the Air Force Accounting and Finance Center computed plaintiff’s back pay and allowances. In support of this claim, plaintiff relies on our holding in Bates v. United States, 453 F.2d 1382, 197 Ct.Cl. 35 (1972).

In Bates, plaintiff sued to recover his civilian pay for the period June 17, 1968 to April 14, 1969. Bates’ record was corrected on September 25, 1970, prior to revision of Air Force Regulation 31 — 3 permitting the offset of civilian earnings from back pay found due. This court disallowed the civilian pay offset in Bates. However, in reaching its decision, the Bates court was informed neither by plaintiff nor defendant of the March 12, 1969 directive issued by the Assistant Secretary of Defense and the practice within the Air Force prior to 1970 consistent with this directive. Defendant belatedly attempted to bring this directive to the court’s attention in its February 22, 1972 motion for rehearing. However, the motion was denied without explanation on May 12, 1972. Had the Bates court been timely informed of the directive and Air Force practice, the result might well have been different. In any event, in the instant case, this court is fully cognizant of both the directive and Air Force practice prior to plaintiff’s 1970 reinstatement and finds the offset on September 2, 1970 of plaintiff’s civilian earnings for the period from April 1, 1965 to July 5, 1970 to be entirely proper and consistent with other precedents requiring the offset of civilian wages. See Middleton v. United States, 175 Ct.Cl. 786 (1966); Motto v. United States, 360 F.2d 643, 175 Ct.Cl. 862 (1966); Clackum v. United States, 161 Ct.Cl. 34 (1963).

We, therefore, hold that plaintiff’s claim in re the offset issue has no merit.

* * * * * *

As to the 1973 discharge issue, plaintiff’s motion for summary judgment is granted in part and denied in part, and defendant’s cross-motion is granted in part and denied in part. Accordingly, plaintiff is entitled to recover, in part, on his claim, and judgment is entered to that effect with the amount of recovery to be determined pursuant to our Rule 131(c). The Secretary of the Air Force is ordered to reinstate plaintiff to the grade of Captain, effective April 30, 1973, and to correct plaintiff’s applicable records consistent with this opinion, pursuant to Rule 147(c) of the Rules of this court.

As to the offset issue, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion is denied, with the petition, as to this issue, dismissed.

      . A removal of promotion pass overs and appropriate correction of plaintiffs record could reflect an adequate explanation of the unjust 5-year gap in plaintiffs Officer Effectiveness Reports. Alternatively, such a removal could change said record and correct the Air Force’s failure to delay plaintiff’s consideration by a Selection Board until an appropriate number of OERs could be accumulated.

      . He was first appointed to the grade of Captain on October 20, 1964.

      . On March 12, 1969.

      . On October 21, 1970, the Air Force changed AFR 31-3, which had been in effect since January 2, 1962. This regulation established procedures for making application, and consideration of applications, for the correction of military records by the Secretary of the Air Force acting through the Air Force Board for the Correction of Military Records. The new provision, AFR 31-3, specifically stated in paragraph 26a that “earnings received from civilian employment during any period from which active duty pay and allowances are payable may be deducted from the settlement.” This change reflected the policy established by the Assistant Secretary of Defense in his memorandum issued on March 12, 1969, and is similar to policy followed in civilian pay cases.

      . 10 U.S.C. §§ 8303(d) and 8846 (1970).

      . In paragraph 3 of his prayer for relief, plaintiff also sought to recover attorney’s fees, costs, interest, and expenses connected with the correction of errors and injustices relative to his wrongful discharge on March 31, 1965 and to subsequent errors and injustices. However, it is well settled by case law, statute and regulation that such costs are not recoverable. See 28 U.S.C. §§ 2412 and 2516(a). Air Force Regulation 31-3, and Middleton v. United States, 175 Ct.Cl. 786, 795-96 (1966).

      . 10 U.S.C. § 5706 provides that a Selection Board be furnished “the records of all officers whose names are furnished to the board.” As we stated in Weiss v. United States, 408 F.2d 416, 418, 187 Ct.Cl. 1, 5 (1969), “[t]he Congressional purpose would dictate that the ‘record’ required to be furnished under that section be complete and not misleading.”

      . For a detailed discussion of the jurisdiction of this court in cases arising from military correction boards, see Glosser and Rosenberg, Military Correction Boards: Administrative Process and Review by the United States Court of Claims, 23 Am.U.L.Rev. 391 (1973).

      . Pub.L. No. 92-415, § 1, 86 Stat. 652 [codified at 28 U.S.C. § 1491 (Supp. II 1972)].

      . This directive stated, in pertinent part, that “appropriate action should be taken to require deduction of interim civilian earnings” in correction board cases such as the case at bar. [emphasis supplied] For additional discussion, see text accompanying note 4 supra.


source: Caselaw Access Project

author: DAVIS, Judge. NICHOLS, Judge

license: Public Domain

text:
    CHEYENNE-ARAPAHO TRIBES OF INDIANS OF OKLAHOMA et al. v. The UNITED STATES.
    Nos. 342-70, 343-70.
    United States Court of Claims.
    March 19, 1975.

      Pierre J. LaForce, Washington, D. C., for plaintiffs.
    I. S. Weissbrodt, Washington, D. C., attorney of record for the Confederated Tribes of the Colville Reservation, and others; Weissbrodt & Weissbrodt, Ruth Duhl and Howard L. Sribnick, Washington, D. C., of counsel.
    Glen A. Wilkinson, Washington, D. C., attorney of record for Cheyenne-Arapaho Tribes of Indians, and others; Wilkinson, Cragun & Barker, E. Foster De-Reitzes, Angelo A. ladarola, Frances L. Horn, and Charles H. Gibbs, Jr., Washington, D. C., of counsel.
    Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for defendant.
    Before DAVIS, NICHOLS, and KUN-ZIG, Judges.
   ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge.

These consolidated cases, before us on cross-motions for summary judgment as to liability, challenge the Government’s performance of its fiduciary duties as trustee of funds belonging to various Indian tribes. The suits are brought on behalf of a number of tribes either for themselves or as representatives of large or aboriginal groups, but for the purpose of these motions the parties have agreed that two tribes for each suit will be considered representative “test plaintiffs.” No. 342-70 challenges the Government’s management of judgment funds in the Treasury belonging to plaintiffs Southern Ute Tribe and Southern Ute Tribe as representative of the Confederated Bands of Ute Indians. No. 343 — 70 challenges defendant’s conduct with respect to other trust funds of plaintiffs Southern Ute Tribe and Hoopa Valley Tribe.

Both petitions allege that defendant breached its fiduciary duties in the care of plaintiffs’ funds by not making the funds productive (by not investing moneys ready for investment and also by delay in making funds available for investment), by not maximizing the productivity of funds, and by using the funds to its own benefit and to the detriment of the tribes. It is clear from past opinions of this court and of the Supreme Court, and from the actions of both Congress and the Executive Branch, that funds appropriated to Indians to satisfy judgments of the Indian Claims Commission or of this court, as well as funds produced by tribal activities, are, when kept in the Treasury, held in trust for the Indians. See United States v. Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 37 L.Ed.2d 22 (1973); Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942); Menominee Tribe of Indians v. United States, 59 F.Supp. 137, 102 Ct.Cl. 555, 562 (1945); 10 Cong.Rec. 214 (1880) (statement of Senator Edmunds); S.Rep. No.1396, 70th Cong., 2d Sess. 1-2 (1929) (letter from Sec’ty of the Interior West); 34 Op.Atty.Gen. 439, 442 (1925). We have ruled that the United States as trustee has undertaken an obligation “of the highest responsibility and trust,” Seneca Nation of Indians v. United States, 173 Ct.Cl. 917, 925 (1965), an obligation doubly strict when the defendant, by retaining Indian moneys in the Treasury, in effect borrows those funds. Menominee Tribe of Indians v. United States, supra, 59 F.Supp. at 140, 102 Ct.Cl. at 562; see Navajo Tribe of Indians v. United States, 364 F.2d 320, 324, 176 Ct.Cl. 502, 507-08 (1966); Menominee Tribe of Indians v. United States, 101 Ct.Cl. 10, 19-21 (1944). We have also held that because the United States in effect imposes trust status on the Indian funds, our jurisdiction to review discretionary acts of the Secretaries of the Interior and of the Treasury in administering the trust is broad enough to cover the types of claims made here. See United States v. Seminole Nation, 173 F.Supp. 784, 789-90, 146 Ct.Cl. 171, 179 — 80 (1959); § 24 of the Indian Claims Commission Act, 60 Stat. 1049, 1055, 28 U.S.C. § 1505.

Test plaintiff Southern Ute Tribe is (or was during the relevant period) the beneficial owner of two judgment fund accounts, a proceeds of labor account, a fourth principal account and five interest accounts held in the Treasury. The balances in the accounts at times totaled several million dollars. Even larger amounts were held in the accounts of the Consolidated Ute Tribes, represented here by the Southern Utes. The Hoopa Valley Tribe was the owner of a proceeds of labor account, the balance of which never fell below $1,000,000 from July 1964 to early 1970, and which at times held as much as $3,000,000, and an interest account to which interest on the proceeds of labor account was credited.

When Congress, in the exercise of its power over the Indians, determined by statute and by treaty to hold funds due the tribes in trust rather than immediately distributing them to the Indians, it also developed a series of investment policies for those funds. We are not faced here with a claim that Congress breached its trust duties under the Constitution or treaties. See Menominee Tribe of Indians v. United States, 101 Ct.Cl. 10, 21 (1944); compare Navajo Tribe of Indians v. United States, No. 256-69 (Ct.Cl., filed May 28, 1969) (alleged violation of Fifth Amendment in statutory provision for lower rate of interest on Indian funds than on other trust funds). Rather, plaintiffs urge that the Bureau of Indian Affairs has not properly used the tools Congress provided in order to meet the Government’s fiduciary obligation.

The statutory scheme is that Indian trust funds deposited in the Treasury are to earn interest at the rate provided in the appropriate treaty or appropriations bill, and that if no interest rate is specified, the funds are to earn four percent simple interest per year. 25 U.S.C. §§ 161a, 161b (1970). In Menominee Tribe of Indians v. United States, 97 Ct.Cl. 158, 163-65 (1942), the court held that this provision prohibited the Treasury from paying interest on the interest earned by funds on deposit. Cf. Peoria Tribe of Indians v. United States, 390 U.S. 468, 473 n. 6, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968). Accordingly, the various interest funds owned by plaintiffs, when held in the Treasury, are totally unproductive. Defendant has in fact paid four percent simple interest on plaintiffs’ other funds, and if this were the limit of the Government s power, plaintiffs’ claim, which does not attack the statutes, would have to fail.

However, holding the money in the Treasury is only one of defendant’s statutory alternatives. Until 1880, tribal funds, rather than being deposited in the Treasury, were required by law to be invested, usually at a minimum rate of return of 5%. See Act of January 9, 1837, ch. 1, 5 Stat. 135, R.S. § 2096; Act of September 11, 1841, ch. 25, 5 Stat. 465, R.S. § 3659. Because of defaults on some bonds in which the Secretary of Interior had invested and due to declining interest rates, Congress provided by the Act of April 1, 1880, ch. 41, 21 Stat. 70, for the holding of moneys in the Treasury and payment of interest as an alternative to investment when the Secretary of Interior “is of the opinion that the best interests of the Indians will be promoted by such deposits, in lieu of investments.” See 10 Cong.Rec. 213 — 15, 720 (1880); S.Rep.No.186, 46th Cong., 2d Sess. 1 — 2 (1880); F. Cohen, Handbook of Federal Indian Law 105 n. 210 (1942). Interest on Indian trust funds, where no rate was specified by the law or treaty setting up the fund, was set at four percent by the Act of Feb. 12, 1929, ch. 178, 45 Stat. 1164. In 1918, Congress clarified and limited the Secretary’s power to invest rather than hold Indian funds by providing that the Secretary could withdraw Indian funds from the Treasury and place them in banks where such banks paid a higher rate of interest than the Treasury was obligated to give, and he could also invest the funds “for the best interest of the Indians” in “any public-debt obligations of the United States and in any bonds, notes, or other obligations which are unconditionally guaranteed as to both interest and principal by the United States.” Act of May 25, 1918, ch. 86, § 28, 40 Stat. 591, as amended by Act of June 24, 1938, ch. 648, § 1, 52 Stat. 1037, codified at 25 U.S.C. § 162a (1970).

It is therefore legally possible, depending on the state of the market, for the Secretary, by investing rather than holding Indian funds, to provide the Indians with more than 4 percent simple interest. Because the investments are required by statute to be either heavily collateralized (in the case of bank deposits) or guaranteed by the Government, safety is not an issue. Moreover, because of the existence of a secondary market in many of the permitted investments (e. g. Treasury bills, Federal Home Loan Bank Board notes, Federal Intermediate Credit Bank notes, etc.), sudden requirements for cash do not present major obstacles to these types of investments. The four percent attainable by retaining the funds in the Treasury is, as another court has stated, a floor rather than a ceiling. Manchester Band of Pomo Indians, Inc. v. United States, 363 F.Supp. 1238, 1243-44 (N.D.Cal.1973).

The fiduciary duty which the United States undertook with respect to these funds includes the “obligation to maximize the trust income by prudent investment,” and the trustee has the burden of proof to justify less than a maximum return. See Blankenship v. Boyle, 329 F.Supp. 1089, 1096 (D.D.C.1971). See also Restatement of Trusts 2d § 181 (1959). A corollary duty is the responsibility to keep informed so that when a previously proper investment becomes improper, perhaps because of the opportunity for better (and equally safe) investment elsewhere, funds can be reinvested. While the trustee has a reasonable time in which to make the initial investment or to reinvest, he becomes liable for a breach of trust if that reasonable time is exceeded. Restatement of Trusts 2d §§ 231 and comm, b, 181 and comm, c (1959).

This is the general law governing the Government’s duty and responsibility toward the Indian funds involved in this case. The real problem arises when we attempt, on these cross-motions for summary judgment, to decide precisely to what extent there was in these cases a breach of those obligations. The essence of plaintiffs’ assertions is that defendant failed to make their trust funds as productive as legally and practically possible. But the method the parties have chosen to present to the court this complicated question makes it wellnigh impossible to give any definitive answer at this time. The motions for summary judgment are accompanied by great masses of documentary materials which the parties have mechanically collated but which they have not meaningfully correlated to the ultimate issues of breach of fiduciary duty. The court was left to wander and wallow, for itself, in this morass of documentation without helpful guidance, sorting out, agreement of the parties on specified segments of the evidence, or precise findings. Moreover, we were told at the bar that the litigants did not consult the trial judge to determine whether he felt that it was appropriate to dump the entire problem in the court’s lap or whether he could simplify and speed the process of determination by a full or partial trial on liability. In these circumstances and in a matter of this magnitude and complexity, we think that it was inappropriate to use the mechanism of summary judgment, in the gross form in which the parties availed themselves of that procedure, as the primary means of initial determination. Nevertheless, now that the motions are before us and have been argued and considered, we shall not delay the proceedings by simply returning the case to the trial division without any decision. We shall, instead, make use of our Rule 101(e) which permits us to decide that certain material facts are not substantially controverted and to decide those subordinate legal issues we can determine on the present record.

For these reasons, we have concluded that we are in no position at this time and on the present record to give a complete answer, although we can decide several specific points (to be listed infra). There must be further proceedings in the trial division which will refine exactly what the Government should have done. We shall leave to the trial judge the determination of the maximum return available during the period at issue, of the reasonable periods the Government had to consider what to do and then to do it, and of the various defenses and argument defendant may raise (except those we reject in this opinion).

In assessing the return available outside of the Treasury, both in the earlier segment of the period and later, the trial judge should take into account the availability of eligible investments through the secondary markets as well as directly from the issuer. He will, in addition, have to decide the length of time within which it would have been reasonable for defendant to make funds available for investment, to make actual investments, and to reinvest where appropriate. As to funds which were invested, but at rates less than those found by the trial judge to be the maximum available, the trial judge will have to determine whether defendant breached its duties by not making a switch in investments which would have been made by “a man of ordinary prudence * * * in dealing with his own property.” Restatement of Trusts 2d § 174 (1959).

There are, as already indicated, several specific points on which we can now rule definitively. We have already pointed out (note 5, supra) that the Associate Solicitor of the Interior Department has listed the bonds and notes eligible for investment as public-debt obligations of the United States and securities guaranteed by the United States. Since defendant does not contest the correctness of its own attorney’s opinion, we hold that at least twelve of the obligations listed by him must be considered legal ’ alternate investments for trust funds.

Secondly, defendant says that any failure in productivity was due to its policy of consulting the Indians before investing and the plaintiffs’ failure to respond to its requests for advice. Our ruling is that while such consultation may have been a useful part of defendant’s overall policy to make the Indians ready for dissolution of trust status, the Government was duty bound to make the maximum productive investment unless and until specifically told not to do so by a tribe and until defendant also made an independent judgment that the tribe’s request was in its own best interest. We find no evidence in the present record of such requests in the case of any of the test plaintiffs.

Third, defendant argues that more productive investments were not available during the earlier part of the period. Defendant has stipulated to the contrary at least from May 10, 1965 onward, see Joint Stipulation of Facts No. I, paras. 9 — 10, so that the only period for which plaintiffs are claiming about which there may be disagreement on this issue is July 1, 1964 to May 10, 1965. If defendant continues to press this point, the matter of the availability of more productive returns in the earlier segment of the period in suit should be gone into further.

Fourth, on those funds which defendant in effect borrowed from plaintiffs by retaining them in the Treasury, we hold defendant to a strict standard of fiduciary duty — if eligible investments were available at higher yields, defendant will be liable to plaintiffs for the difference between what interest defendant paid for the funds and the maximum the funds could have legally and practically earned if properly invested outside.

Fifth, we find that, except possibly for the earliest period, there were in fact, at all relevant times, proper sources of investment outside the Treasury which would have yielded higher returns than 4%. As already indicated, we do not determine the length of the reasonable periods in which the Government should have acted or the validity of its possible excuses, if any, for failing to act at all or in due time (other than those dealt with in this opinion).

Sixth is the problem of the interest accounts on which no interest was paid at all. Defendant’s own exhibits show that as early as 1963 the unproductive interest funds of both the Chemehuevi and Hoh tribes were withdrawn from the Treasury to earn interest in commercial banks — a policy defendant encouraged. See Defendant’s Exhibit 50. Since defendant had available at all relevant times outside investments which would have yielded some substantial return, we hold that the Government is liable for lost profits on those interest accounts.

Finally, in determining the maximum rates available, the trial judge will disregard the advice the Bureau of Indian Affairs received from the Office of Management and Budget (OMB) that it might not invest in Government-guaranteed securities of certain agencies. That advice was based on internal accounting policies of the OMB, and was in clear derogation of defendant’s statutory right to invest in those securities, a right recognized by the Department of the Interi- or at least since 1966, but disregarded in the face of OMB pressure. See Defendant’s Exhibits 13, 13A, 4, 5; Plaintiff’s Exhibit 1.

On these grounds, we make under Rule 101(e) the orders specified above and return the case to the trial division for further proceedings under and consistent with this opinion, see Rule 101(e) and Rule 131(c)(2).

NICHOLS, Judge

(concurring):

I concur in Judge Davis’ opinion. I would like, however, to stress, even more strongly than he does, the utter inappropriateness of invoking our summary judgment procedure in this case at this juncture, with the hope that no one will copy plaintiffs' measures in future eases.

In my opinion, the procedure in Trans Ocean Van Service v. United States, 426 F.2d 329, 192 Ct.Cl. 75 (1970), after Rule 131(c) proceedings 470 F.2d 604, 200 Ct.Cl. 122 (1972) shows how, within the present Rules, a multiplicity of separate claims can be handled even though they involve a complex cross entangling of numerous legal and factual issues, as I think these claims do.

I went to the oral argument in this case, after spending much time with the briefs and record, in a state of utter perplexity as to what useful action we could possibly be expected to take. I asked plaintiffs for a draft order in hopes of getting light as to this. With his greater wisdom, Judge Davis has managed to salvage something of value out of an exercise I expected to be a total loss.

In general, a judgment is a pronouncement by the court as to the legal consequences of established facts. A roving pronouncement of the law supposedly applicable to a case, independent of the facts, is not a judgment of itself, and a motion for summary judgment is not an appropriate means of eliciting such a pronouncement, supposing it is appropriate for the court to make it. A motion for summary judgment under Rule 101(a) is not an appropriate means to use in good faith for eliciting a partially dis-positive order ünder Rule 101(e) even though, as here, such an order may sometimes be the result. The filing of a motion for summary judgment suspends the jurisdiction of the trial judge per Rule 14(b)(2), whereas this case is, of all others, one where the services of a trial judge are most needed. At present, our clerk has no option to do anything with cross motions for summary judgment except to calendar them for argument before a panel of judges. And finally, our trial division has many important functions besides conducting trials. For one thing, a pre-trial conference under Rule 111 may be an appropriate means of settling on further procedural steps, and perhaps even avoiding a trial. Parties should consider the operational effect of the moves they make.

      . The Confederated Bands of Ute Indians is an aboriginal grouping of Indians which exists for litigation purposes only. The Southern Ute Tribe is a constituíent of the group and eligible to share in awards to the Confederated Bands, see 25 U.S.C. § 676a (1970). Earlier in this litigation, defendant opposed the representation of the Confederated Bands by the Southern Utes. We hold that, by agreeing to accept the Southern Utes as a representative of the Confederated Bands as a test plaintiff, after our earlier refusal to dismiss the representative claim, defendant has waived its initial opposition to this representation. See Trial Judge’s Memorandum of Jan. 24, 1972 and the court’s order of Sept. 29, 1972.

      . A proceeds of labor account holds “All miscellaneous revenues derived from Indian reservations, agencies, and schools * * * and not the result of the labor of any member of such tribe. * * * ” 25 U.S.C. § 155 (1970). Since 1930, money held in the Treasury in proceeds of labor accounts has earned four percent simple interest. 25 U.S.C. § 161b (1970).

      . In one account of one of the test plaintiffs, 5% interest was paid.

      . Funds may be placed in commercial banks only when such banks provide either a bond or collateral in the form of United States public-debt obligations or “other obligations which are unconditionally guaranteed as to both interest and principal by the United States” to the extent funds deposited exceed deposits insured under the Federal Deposit Insurance Act. 25 U.S.C. § 162a (1970).

      . The most complete recent listing of bonds and notes eligible for investment under this provision is found in the opinion of the Associate Solicitor, Indian Affairs, dated May 3, 1968, Defendant’s Exhibit 50.

      . It is unclear whether the Treasury, through which defendant now purchases securities, can or does act as a broker for secondary market purchases. However, we find nothing in the statutes or legislative history to indicate that defendant may not purchase or sell eligible securities in the secondary market when doing so would enhance yield or liquidity. If the Treasury cannot act for defendant in that market, 25 U.S.C. § 160 (giving the Treasury custody over Indian securities), which was enacted solely as a housekeeping measure after an Interior Department fire, 10 Cong.Rec. 720 (1880), does not preclude use of a commercial broker where fees are reasonable. See 4 Cong.Rec. 617, 638, 881, 1394 (1876).

      . Obviously, there will not be one maximum for the entire period, nor for all lengths of investments. The trial judge may wish either to fix a maximum yield for each of several terms of investment for each of several smaller periods of time, or to determine for which periods and for how long funds were available and then find the maximum only for those periods and terms. In the absence of any suggestion by the parties how a maximum is to be determined, either method suggested above, or some other appropriate system, appears proper.

      . While most of the actions complained of in this suit were those of the Bureau of Indian Affairs, defendant cannot escape responsibility merely by showing that another department of the government, e. g. the Treasury or the Office of Management and Budget, caused any needless delay or mismanagement. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (one part of government responsible for promises of another).

      . In fixing damages, it will be necessary for the trial judge to make some determination as to the term for which funds were available for investment. In the absence of a showing by defendant of specific immediate budgetary commitments by the tribes, claimed liquidity needs should be considered in the light of the actual history of the tribes’ funds. See Blankenship v. Boyle, 329 F.Supp. 1089, 1096 (D.D.C.1971).

      . These twelve are as follows:
      1. Export-Import Bank participation certificates.
      2. Federal National Mortgage Association participation certificates issued pursuant to 12 U.S.C. § 1717(c) (1964), as amended (Supp. II, 1965-66).
      3. All other obligations, participations, or other instruments of the Federal National Mortgage Association by authorization in 12 U.S.C. § 1723c (1964).
      4. Debentures of the Federal Housing Administration issued pursuant to 12 U.S.C. § 1710(d).

        5. Farm loan bonds issued by federal land banks, 12 U.S.C. § 941.
      6. Obligations of the Federal Home Loan Banks, 12 U.S.C. § 1435.
      7. Debentures of the Federal Intermediate Credit banks, 12 U.S.C. § 1045.
      8. Debentures of the banks for cooperatives, 12 U.S.C. § 1134m.
      9. Bonds, notes, and other evidences of indebtedness of the Tennessee Valley Authority, by authorization in 16 U.S.C. § 83ln-^.
      10. Notes guaranteed as to principal and interest by the Small Business Administration pursuant to 15 U.S.C. § 683(b).
      11. Bonds issued by local housing authorities secured by annual contributions contracts with the United States.
      12. Bonds or notes of local housing and urban renewal authorities secured by a contract or requisition agreement with the United States.
      The Associate Solicitor’s opinion also mentions several types of commercial paper backed by” United States insurance and loan guarantees, the purchase of which would appear to require participation in the substantive activity underlying the obligation (e. g., shipbuilding) and which may not, therefore, be proper investments. Plaintiffs, on remand, will be free to prove that these or any other securities are proper investments under section 162a, but defendant will be held to have admitted that the twelve types of securities listed above are proper.

      . The legislative history of 25 U.S.C. § 162a plainly shows that the statute was designed to allow investment in precisely those types of agencies, e. g., the Home Owners’ Loan Corporation and the Federal Farm Mortgage Corporation, which the OMB memorandum disallowed, S.Rep.No.531, 75th Cong., 1st Sess. 2 (1937); H.Rep.No.1192, 75th Cong., 1st Sess. 2 (1937); S.Rep.No.1630, 74th Cong., 2d Sess. 2 (1936).


author: NICHOLS, Judge.

text:
    The UNITED STATES of America, Appellant, v. The GOSHUTE TRIBE OR IDENTIFIABLE GROUP, Represented by the Confederated Tribe of the Goshute Reservation, Appellee.
    Appeal No. 6-74.
    United States Court of Claims.
    March 19, 1975.

      Dean K. Dunsmore, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for appellant.
    Robert W. Barker, Washington, D. C., attorney of record for appellee. Wilkinson, Cragun & Barker and Donald C. Gormley, Washington, D. C., John S. White, E. Foster DeReitzes, Washington, D. C., and John S. Boyden, Salt Lake City, Utah, of counsel.
    Before COWEN, Chief Judge, DUR-FEE, Senior Judge and NICHOLS, Judge.
   ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

NICHOLS, Judge.

The United States has appealed from a decision of the Indian Claims Commission, 31 Ind.Cl.Comm. 225 (1973), awarding The Goshute Tribe Or Identifiable Group, Represented By The Confederated Tribe Of The Goshute Reservation (hereinafter The Goshutes), the total sum of $7,253,122, less credits for payments and for offsets, still to be determined, with respect to a tract of 5,952,-000 acres in Utah and Nevada. The Commission determined that the taking or extinguishment date of that tract was January 1, 1875, and valued the premises at $5,980,122 as of then. It also awarded $1,273,000 as compensation for removal of minerals before the taking date. We affirm.

The appellant would support the $5,980,122 award if that were all, but challenges it if the predicated taking date of January 1, 1875, leaves open a further liability for prior removal of minerals. It denies that it is subject to the latter liability, as determined, but would fix taking date earlier than the one used, if necessary for entire compensation. It also claims the benefit of an estoppel, perhaps just as accurately a stipulation, that the mineral removal damages would not be claimed if the Commission selected January 1, 1875, as the taking date. We have given its contentions careful consideration but cannot sustain them.

The Goshutes were in aboriginal times part of the Shoshones, but the Commission has found that, as a distinct tribe or identifiable group, they used and occupied the involved area exclusively. They lacked a political organization larger than the village until continued white contact resulted in a loose tribal organization with a Chief. 11 Ind.Cl.Comm. 387, 407-08, 416 (1962). They now occupy reservations at Deep Creek and Skull Valley, 128,196.35 acres, part of their aboriginal heritage, and have so occupied them since approximately the selected taking date. 31 Ind.Cl.Comm. 225, 227 (1973).

The first non-Indian settlements in the area were established by Mormons in 1849, but there was no real development until the discovery of silver and other minerals there in 1863.

I

' By the Treaty of Tuilla Valley, October 12, 1863, 13 Stat. 681, The Goshutes and the United States agreed to establish peace and friendship. The Goshutes agreed to cease all depredations and that military posts, highways and a railway might be built through their territory.

Article 4 of the Treaty reads as follows:

* * * It is further agreed by the parties hereto that the country of the Goship tribe may be explored and prospected for gold and silver, or other minerals and metals; and when mines are discovered they may be worked, and mining and agricultural settlements formed and ranchos established wherever they may be required. Mills may be erected and timber taken for their use, as also for building and other purposes, in any part of said country.

By Article 6, The Goshutes agreed to abandon their roaming life, live in reservations, and become farmers or herdsmen whenever the President should deem it expedient for them to do so.

By Article 7, the United States agreed to pay The Goshutes $1,000 per annum, in kind, for twenty years, to compensate them for the “inconvenience” of having their game driven away or destroyed, and by the formation of agricultural and mining settlements in their territory.

There is no finding of The Goshutes being driven off their land by force. Numbering 400 to 700, they occupied it but sparsely. Conditions became difficult for them for the reasons specified in the treaty. They became dependent on Government largesse. By the found taking date, January 1, 1875, they were substantially all in the reservations established for them.

Regular shipments out of silver ore began in 1869, when rail transportation became available. The Commission has found that the gross value of the minerals removed from the area before January 1, 1875, mostly silver, was $6,365,000 (at 304). The award for this represents a 20% royalty, the figure the Commission believes an owner could have demanded successfully. It has found that a prudent purchaser would on January 1, 1875, have paid $2,730,122 (at 301 — 02), for full ownership of the minerals not yet removed on that date. The remainder of the taking award, $3,250,000 (at 291), was for the surface values.

II

The Commission says, and its figures substantiate, that the taking award reflects only the value of the minerals remaining on January 1, 1875, and excludes the value of minerals already removed on that date. The theory of Government liability for the pre-taking period is that the 1863 Treaty promising a derisory $1,000 a year (in kind, not money), for unlimited access to the minerals, then already discovered, plus highways, military posts, and the railroad, to ignorant Indians, represented dishonorable dealings under Clause 5, Section 2 of the Act, 25 U.S.C. § 70a(5). We think this is too self-evident to require demonstration. Appellant says, if the Commission thought the $1,000 was inadequate it should have proceeded under Clause 3 (unconscionable consideration), and would have had to take testimony as to the value of the interest conveyed by the Treaty to compare it with the consideration paid. This would require the Commission to do things the hard way since, apparently, it would have had to value the railroad right-of-way, the highway rights-of-way, the military posts, etc., all part of the interest conveyed. It presupposes that the various clauses of the Act are mutually exclusive and the Commission must select the right Clause at its peril. There may, we think, be cases, as here, where two or more clauses covered the same factual situation, and the Commission then enjoys discretion under which to proceed. If it selects the method less onerous as to proof, that does not establish that it has abused its discretion, however reluctant some may be to have these interminable litigations ever end. Our decisions specify that a “special relationship” is necessary for a “fair and honorable dealings” claim to accrue. E. g., Aleut Community of St. Paul Island v. United States, 480 F.2d 831, 202 Ct.Cl. 182 (1973). Such a “special relationship” arises when United States officials tender a Treaty to Indians for adhesion.

The instant Goshute claims were separated off from a 47 page petition originally filed on behalf of a variety of Shoshone tribal claimants. The counts relating to The Goshutes, paragraphs 34 and ff., show that The Goshutes originally claimed that title to their tract was recognized by the Tuilla Valley Treaty, supra. Possibly this position was abandoned at some point in view of Article 8, which says the Treaty is not to be construed as admitting the Indians had any other or greater title than existed in them upon acquisition of the territories from Mexico. At any rate, the petition directs the attention of the United States to the Treaty and to any loss the Indians suffered at the white man’s hands respecting the territory described in the Treaty. The petition expressly alleges want of fair and honorable dealings, and that the United States disposed of the lands to settlers and others. We think the petition was adequate to inform the United States that dishonorable dealings might be asserted against it and that it might be held liable for depredations of miners acting under its authority or pursuant to the Treaty it had exacted. We reject the United States argument to the contrary.

Ill

Appellant also urges an “estoppel” against appellee as regards its pretaking royalty award for minerals. In 1969, when the Commission was considering what taking date to use, appellee’s counsel said that actual mining in the area commenced in the middle ’70’s, that if the Commission selected 1914 as the taking date, as it then considered doing, appellee would claim the minerals removed before that date as a separate item, but that the 1875 taking date would allow award for the minerals as still in the ground. Manifestly appellee’s counsel was ill informed as to what he would later prove. Indian claimants may know they once had a vast domain and now have it not, without being able to supply details as to the steps the expropriation took. Experts must be retained for this and they must be given a taking date to work from. However, this statement was not offered with any accompanying colloquy that would enable us to say it was a stipulation of fact. There is nothing to show it was accepted as such. It is read by appellant as a promissory undertaking: if we can have the 1875 date, we won’t claim for minerals removed before 1875 even if there were some. For counsel to give away part of his client’s claim in that fashion would be most extraordinary, and the words should be read to avoid such a construction, if possible. They easily can be here. It was simply an unsound and fallacious argument such as we lawyers often utter. If appellant’s counsel had been any better informed, he would have exposed the fallacy. The Commission’s finding 27, tells why they selected 1875 as the taking date, and the percentage of minerals then in the ground plays no part in the finding. It is agreed that 1875 was not selected by stipulation of counsel.

IV

The record shows that the appellant had ample notice how much appellee was going to claim for pre-taking removal of minerals. This was given on delivery of appellee’s appraisal report in January 1971. Appellant refused to try the quantum of such recovery because it chose to rely on its denial of entitlement. See the Commission’s order denying motion for rehearing, November 14, 1973, 32 Ind.Cl.Comm. 230.

V

Appellant now says that in the case of the mineral locations, at least, the takings or extinguishments occurred, not January 1, 1875, but on the Treaty date, October 12, 1863, or on the dates of establishment of mining districts, or rather that they so occurred if the taking award of $5,980,122 is not all that is awarded. We assume arguendo that appellant does retain a right to challenge the date in spite of the appearance of having committed itself to it, either in gross or in part as an average or composite date, and further that it can do so in this conditional or contingent manner.

There is one legal problem we fail to find adequately addressed by the Commission or by counsel and that is, what interest in the minerals did the Indians part with by the Treaty of Tuilla Valley? Some expressions in the almost indistinguishable companion case of Western Shoshone Group v. United States, 29 Ind. Cl.Comm. 5, 45, 46 (1972) construe the Ruby Valley Treaty, there involved and containing language like ours, as granting “permanent easements”. If the Indians had parted with a “permanent easement” to mine silver it is hard to see how they still had it to be taken away again on the taking or extinguishment date. The most plausible theory would be that as to minerals, by the Treaty, the Indians granted no more than a license. Otherwise, it would seem the mineral value should have been excluded from the taking award, and instead the 20% royalty for breach of fair and honorable dealing in the Treaty should have applied to all the minerals, whenever removed, until exhaustion. The Commission, of course, in both cases denies that the Treaties extinguished the Indians’ interest in the minerals. The mineral locators thus were not, vis-a-vis the Indians, owners of minerals still in the ground, but only of what they had extracted. Such a license theory would explain what the Commission has done and it is consistent with the usual contra proferentem rule applied to treaties drafted by Government officials for unlettered Indians to sign. There was no reason for an Indian to think he was granting ownership of minerals still in the ground and likely not even discovered.

As long as the Indians observed the Treaty, did not interfere with the mining operations, and accepted the annual $1,000 refresher as adequate consideration, the miners were not acting adversely to them. Having voluntarily parted with the licenses they did part with, the Indians had no cause of action accruing to them as for a taking until more had happened, i. e., the general taking of January 1, 1875. They were therefore entitled to no more than the Commission has given them, an upward adjustment of the $1,000 per annum to a fair and honorable royalty, for minerals extracted before January 1, 1875.

By this analysis, neither the Treaty, nor the miner’s locations, nor the establishment of mining districts, nor the enactment of mining legislation by Congress, can be regarded as anticipating the general taking or extinguishment, and the found date of January 1, 1875, must stand on appellate review for failure of appellant to demonstrate that it is wrong. As in some other cases, an earlier date would no doubt also have been sustainable if found by the Commission. Gila River Pima-Maricopa Indian Community v. United States, 494 F.2d 1386, 204 Ct.Cl. 137 (1974), cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974); United States v. Fort Sill Apache Tribe, 480 F.2d 819, 202 Ct.Cl. 134 (1973).

VI

United States v. Northern Paiute Nation, 490 F.2d 954, 203 Ct.Cl. 468 (1974), is not contrary to the decision we reach today. That case involved no treaty. The Indians were expelled from the mining area by the armed forces of the United States. The miners entered adversely to them, with the retrospective backing of United States law. We held that, in the instances of tracts where earlier takings had obviously occurred, an average or composite taking date, used for valuation purposes, was not res judicata that taking had occurred only later. The Indians thus had no claim for “trespass damages” after their taking claim was settled. Here we have also an average or composite date, but there are no other taking dates to compete with it, and therefore it must stand.

Moreover, in Northern Paiute the record afforded disturbing indications that the Indians were being paid twice for the same thing. In the earlier award, affirmed 393 F.2d 786, 183 Ct.Cl. 321 (1968), the Commission had valued the tract there involved at $15,750,000 as of a January 1, 1863 taking date. It considered evidence of value calculated from the supposed mineral content of the land on that date, but based the award for the mineral portion primarily on a “sales index of value” constructed from actual purchases and sales of mining rights and mining stock, thus on the miners’ speculations. It was undisputed that the speculative fever was high and that values had moved steadily upward since the expulsion of the Indians. The Government claimed credit for values added by the miners since the expulsion. These were considerable: values added by physical structures, by discovery of new ore bodies, and by speculation. We denied this credit on the ground among others, that no computation had been made or offered as to injury to value by the miners’ ravages. The new proceeding, however, in the guise of trespass damages would have assessed liability for the ravages without giving any credit for the values added. There was nothing to show that the removal of ores before the average or composite taking date had reduced the taking award by one dollar. In proportion to the remaining mineral wealth, the pre-taking date removals were relatively small in quantity and wholly secondary to other considerations in the determination of value as found. Where the taker gets no credit for value it has added before the selected taking date it is surely questionable to assess it for what it has taken away.

Here, however, the pre-taking date removal of minerals has been relatively large and has had its full effect in assessing the taking date value. Both the royalty for pre-taking removals and the fair market value for the remaining ones were found on the basis of actual or estimated quantities and the cost of removal and marketing. The speculations of miners has not been used in the same way as in Northern Paiute. Appellant does not urge that the taking award of $5,980,122 is inflated. In the circumstances, it appears to us fair and just that some way be found to compensate the Indians for the pre-taking removals, assuming as we do that in negotiating the Treaty the United States made itself responsible for fair and honorable dealing. Otherwise the Indians are not made whole.

Moreover, the determination of the award at one time on both phases offers assurance that a double payment for the same thing will not be required. Appraisers are aware of this danger when they submit reports on both phases together, and the Commissioners when they hear testimony and make findings on both phases at once. We cannot assume the Commission would knowingly exact payment twice for the same thing, and here it would have been impossible to do so unwittingly.

We cannot demand a theoretically perfect award. These ancient wrongs must be settled for within our lifetimes. It remains true that the artificial postponement of a taking date with values enhanced by the taker’s activities, and with felt concomitant necessity to compensate somehow for things that happened earlier, is a technique bound to produce difficulties. Other techniques no doubt present objections too. We must affirm unless the appellant shows us error we are required to correct under the statute, which it has not done here.

VII

This is not a case of “trespass” damages, as the foregoing we hope makes clear, and we pretermit decision on that issue until we are confronted with a case that presents it.

Affirmed.


author: BARRETT, Circuit Judge.

text:
    CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY, on behalf of its affiliated local unions of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Plaintiff-Appellee, v. BRADY CORPORATION, a Colorado Corporation, Defendant-Appellant.
    No 74-1705.
    United States Court of Appeals, Tenth Circuit.
    March 27, 1975.

      John W. McKendree, Denver, Colo., for appellee.
    Robert G. Good and Kenneth R. Stett-ner, Denver, Colo., for appellant.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Brady Corporation (Brady) appeals from the judgment entered in favor of Carpenters District Council of Denver and Vicinity (Union), involving issuance of a mandatory injunction ordering arbitration.

Brady is a general contractor engaged in the construction industry. During the instant dispute, both parties were signatory to a collective bargaining agreement for the period from May 1, 1972, through April 30, 1975. Article XXI-11(A) of the agreement provides, inter alia:

(A) CONTRACTUAL DISPUTES
Section 1. In the event that a dispute, other than a jurisdictional dispute, arises involving the application or interpretation of the terms of this Agreement, the parties agree that the same shall be determined and settled in the manner and by the procedures [i. e., the contractual grievance and arbitration provisions of the agreement] hereinafter set forth. (Emphasis added).

Further, in establishing the work jurisdiction of Union, Article V(B) of the same agreement provides, inter alia:

It is agreed that the work covered by this agreement shall and does include the use of any instruments or tools on layout work and the shooting of all grades and elevations incidental to the trade; except to the extent that any of the work enumerated is claimed by another labor organization or another trade, craft or class. (Emphasis added).

On January 8, 1973, William Mayres, a Brady “staff engineer” [admittedly a “class” for purposes of Article V(B)], performed “layout” work of the type enumerated in Article V(B). The parties stipulated that Mayres was not a member of a labor organization covered by the collective bargaining agreement; that he had been assigned the layout work as a matter of Brady company policy; and that he had neither requested nor objected to the assigned layout work.

On January 15, 1973, Union grieved the performance of layout work by Mayres [apparently contending that the Staff Engineer had not “claimed” this work as required under Article V(B)], and requested the dispute be processed pursuant to the grievance and arbitration provisions of Article XXIII(A) of the agreement. Brady refused to process the dispute, asserting that it was a “jurisdictional dispute” specifically excluded from binding dispute procedures by Section 1 of Article XXIII(A), supra.

Union subsequently filed the instant suit under § 301(a) of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185, seeking a declaratory judgment that the dispute was subject to the grievance and arbitration provisions of Article XXIII(A) and a mandatory injunction requiring Brady to process such dispute before a Board of Adjustment and, if necessary, before an arbitrator.

In its memorandum opinion, the Trial Court found that the central issue raised by the dispute was whether, under Article V(B) of the contract, the staff engineer had made a “claim” to the layout work. Further, relying upon United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), wherein the Supreme Court held that doubts as to coverage of an arbitration clause must be resolved in favor of coverage, the Trial Court held that the question of whether the staff engineer had, under the circumstances presented, made such a “claim” was not clearly excluded from the arbitration clause; that it was essentially a question of fact and of contract interpretation; and that it was “peculiarly susceptible to arbitration.” The Trial Court concluded that there existed no “jurisdictional dispute” (as contended by Brady), in light of the stipulation of the parties that that term was to be given the same meaning given it under Section 8(b)(4)(D) and 10(K) of the Labor Management Relations Act. Under that meaning, the Trial Court found a “jurisdictional dispute” exists only when there is present “coercion or threat of coercion”, absent here, on the part of the competing claimants to the work, resulting in the employer being placed in the middle ground between two warring groups of employees.

Brady’s primary contention on appeal is that the Court erred in ordering the parties to arbitrate whether .a “claim” under Article V(B) of the agreement had been made since this constitutes a question of law which the Court, and not an arbitrator, must decide in order to fulfill its duty of determining whether the dispute is, in fact, a “jurisdictional dispute” and hence “substantively arbitrable.”

I.

We have no disagreement with Brady’s contention that as a general rule courts, rather than arbitrators, determine issues of “substantive arbitrability.” Johnson Builders, Inc. v. United Brotherhood of Carpenters and Joiners, Local Union No. 1095, AFL—CIO, 422 F.2d 137 (10th Cir. 1970); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) v. Folding Carrier Corporation, 422 F.2d 47 (10th Cir. 1970). We do not believe that in this case the Trial Court renounced that duty.

Brady argues, in effect, that a determination of what constitutes a “claim” under Article V(B) of the agreement is a question inextricably tied to (and/or is a determination which is a necessary condition precedent to) a determination of whether a “substantively arbitrable” dispute has been presented [i. e., whether the dispute is “jurisdictional” and therefore not covered by the arbitration mechanism of Article XXIII(A)]. Hence, it is contended, it is a determination which the trial court, and not an arbitrator, must make. We disagree.

We hold applicable the rule that where an exclusion-from-arbitration clause is vague, and the arbitration clause is broad, only the most forceful evidence of a purpose to exclude the claim from arbitration will deter a court from directing the dispute to arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Brotherhood of Locomotive Firemen and Enginemen, Lodge 844 v. Kennecott Copper Corporation (Utah Copper Division), 338 F.2d 224 (10th Cir. 1964); International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, AFL—CIO v. Cardwell Manufacturing Company, 304 F.2d 801 (10th Cir. 1962). As noted by the Trial Court, the meaning of the term “claimed” under. Article V(B) is at the very heart of the present dispute. That term is not patently clear and the exclusion clause of Article XXIII(A) does not specifically exclude from arbitration the meaning this term is to be given under Article V(B). See, Acme Markets, Inc. v. Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 275 F.Supp. 638 (E.D.Penn.1967). Furthermore, Brady has not presented cogent evidence of a “purpose to exclude” an interpretation of this term from arbitration.

We agree with the reasoning of the Trial Court that while the “jurisdiction” of the union and staff engineers may, as a practical matter, be incidentally affected by a determination of an arbitrator of the meaning of the term “claimed” under Article V(B), the “subject” of the instant dispute is not whether a “jurisdictional dispute” exists under Article XXIII(A) (which would require resolution by the court), but rather the contract interpretation of a term for purposes of the application of Article V(B) itself [i. e., this is an Article V(B) dispute and not one exclusively covered by the exclusion clause of Article XXI-11(A)]. Compare, International Association of Machinists and Aerospace Workers, AFL—CIO v. General Electric Company, 406 F.2d 1046 (2nd Cir. 1969); Desert Coca Cola Bottling Company v. General Sales Drivers, Delivery Drivers and Helpers Local 14, 335 F.2d 198 (9th Cir. 1964); Sidney Wanzer & Sons, Inc. v. Milk Drivers Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 249 F.Supp. 664 (N.D.Ill.1966).

The Trial Court correctly found that it could not be said “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” We hold that the dispute as to the interpretation to be given the term “claimed” under Article V(B) is within the scope of the grievance and arbitration provisions of Article XXIII(A) of the agreement.

II.

Having held that the Trial Court properly ordered the parties to arbitration, we need not reach Brady’s additional contention that the Trial Court’s alternative or supplemental basis in support of its judgment was unwarranted, i. e., the Court’s interpretation of “jurisdictional dispute” under Article XXIII(A).

The Trial Court fulfilled the “narrow function” allotted it under United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), when it determined that the interpretation of the term “claimed” under Article V(B) was a dispute arbitrable under Article XXIII(A) and that such arbitration was not necessarily precluded by the exclusion clause of Article XXIII(A). It was not necessary for the Court to venture further in determining whether a “jurisdictional dispute” would have been presented if it be assumed that there, in fact, existed conflicting claims to the work under the circumstances of this case. This surplusage, even if predicated on an incorrect analysis, cannot prove fatal to the instant decision. If a Trial Court’s decision is correct upon any theory we must uphold that decision. Pound v. Insurance Company of North America, 439 F.2d 1059 (10th Cir. 1971); Potter v. LaMunyon, 389 F.2d 874 (10th Cir. 1968).

III.

Those authorities cited by Brady for the proposition that it is generally accepted that actual performance of work constitutes a “claim” for such work are inapposite to the case at bar. Assuming, arguendo, that Brady is correct in this contention, still grievances do not lose their arbitrability simply because we think they can be correctly decided only one way. United Steelworkers of America v. American Manufacturing Co., supra; Local 1912, International Association of Machinists v. United States Potash Company, Division of United States Borax & Chemical Corporation, 270 F.2d 496 (10th Cir. 1959), cert. denied 363 U.S. 845, 80 S.Ct. 1609, 4 L.Ed.2d 1728 (1960).

We affirm.