author: NICHOL, Senior District Judge.

text:
    The YANKTON SIOUX TRIBE OF INDIANS, Plaintiff, and United States of America, Intervenor-Plaintiff Cross-Claimant, v. Kenneth NELSON, Daniel Svotas, and De Wit Harold, Defendants, and The State of South Dakota and Charles Mix County, South Dakota, Intervenor-Defendants.
    No. CIV 76-4066.
    United States District. Court, D. South Dakota, S.D.
    March 21, 1985.

      John W. Keller, Jr., Huron, S.D., Arlinda Locklear, Native American Rights Fund, Washington, D.C., Yvonne Knight, Native American Rights Fund, Boulder, Colo., for plaintiff.
    Tom D. Tobin, Winner, S.D., David Albert Mustone, Tobin Law Offices, Washington, D.C., for Charles Mix County, S.D.
    Ray P. Murley, Asst. U.S. Atty., Sioux Falls, S.D., John E. Lindskold, Atty., U.S. Dept, of Justice, Land & Natural Resources Div., Denver, Colo., for U.S. of America.
    Daniel J. Doyle, Asst. Atty. Gen., Natural Resources Section, Pierre, S.D., for State of S.D.
   MEMORANDUM DECISION AND ORDER

NICHOL, Senior District Judge.

INTRODUCTION

The controversy before the Court involves the ownership of the bed of Lake Andes. Ownership is claimed by the plaintiff, Yankton Sioux Tribe of Indians (Tribe) and by the intervenor-defendant State of South Dakota (State). The intervenor-defendant County of Charles Mix (County) claims a governmental interest, but no direct proprietary interest. The intervenorplaintiff and cross-claimant United States of America (United States) wishes to protect a perpetual easement in the lakebed which the State conveyed to the United States in 1939 for the purpose of maintaining a wildlife refuge.

FACTS

The facts of the case are not complex, and are set out in Yankton Sioux Tribe of Indians v. Nelson, 521 F.Supp. 463 (D.S.D.1981) (hereinafter called the 1981 Decision). It is necessary to add those facts which relate to the claims of the United States, because the United States did not intervene until 1983.

The Lake Andes Migratory Waterfowl Refuge was established in 1936 by executive order.* At that time, the United States acquired about 365 acres of land in Charles Mix County, and the refuge was opened. During the following three years, the refuge was enlarged somewhat by the acquisition of flowage easements from riparian landowners.

On November 25, 1939,, the State conveyed an easement in the entirety of the bed of Lake Andes to the United States. The United States has maintained and improved the refuge since that time.

PROCEDURAL HISTORY

The lawsuit was filed in August of 1976 by the Tribe against the individual defendants, to enjoin them from harvesting kochia (fireweed) from the then-dry lakebed. The State and County promptly intervened, and the individual defendants were dismissed. On September 19, 1981, this Court decided that the Tribe owns the lakebed, and therefore granted the Tribe’s motion for summary judgment.

The decision was appealed to a panel of the Eighth Circuit Court of Appeals, which did not reach the merits, but remanded the case to this Court for a factual determination regarding the navigability of Lake Andes. The issue of navigability was subsequently resolved in the Tribe’s favor, and summary judgment for the Tribe was entered August 5, 1983. Subsequently both the Tribe and the County and State (jointly) moved to amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.

On September 1, 1983, the United States moved to intervene and also for leave to supplement the record. The motion to intervene, which was unopposed, was granted in November of 1983. Thereafter, the United States and the Tribe filed cross motions for summary judgment. The State and County also filed a motion for summary judgment against the Tribe.

The following motions are therefore before the Court: the Tribe’s Rule 59(e) motion to amend the judgment, the Rule 59(e) motion of the State and County to amend the judgment, the Tribe’s motion for summary judgment as against the United States, the United States’ motion for summary judgment as against the Tribe, the joint motion for summary judgment of the State and County as against the Tribe, and the United States’ motion for leave to supplement the record.

CLAIMS OF THE UNITED STATES

The Tribe asserts that the actions of the United States in this matter constitute a serious breach of faith, and are offensive to the most basic tenets of the United States’ trust responsibility toward the Tribe. I agree.

The United States Supreme Court established in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), that the relationship of the United States to an Indian tribe resembles that of a guardian to his ward. The concept of a federal trust responsibility toward Indians has since become a cornerstone of Indian law. F. Cohen, Handbook on Federal Indian Law at 220-21 (1982 ed.). Refining the concept, courts have imposed the fiduciary obligations of a private trustee on the United States when dealing with Indians, Seminole Nation v. United States, 316 U.S. 286, 297, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942), held that the United States, when administering Indian property, is bound by the same principles of law as would be applied to an ordinary fiduciary, Navajo Tribe v. United States, 364 F.2d 320, 322-24, 176 Ct.Cl. 502 (1966), and allowed Indian tribes to sue the United States to enjoin a breach of that fiduciary duty, see, e.g., Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp. 252 (D.D.C.1972). In the instant case, the actions of the United States toward the Tribe must therefore be examined in light of the duty of loyalty owed a beneficiary by its trustee.

The action was commenced in August of 1976. The State and County intervened shortly thereafter. Over the next six years the United States showed no inclination to attempt intervention, even when the Court formally invited such intervention by order dated October 28, 1982. When no response to the Court’s invitation was heard by July 25, 1983, nine months later, the Court entered its Findings of Fact on Remand and denied the motion by the State and County to join the United States as a party. On September 1, 1983, the United States finally moved to intervene. The United States’ motion was made without excuse, apology or explanation for the delay, and none has been offered in the ensuing months. Because the United States threatened a separate lawsuit if its motion to intervene was denied, the Tribe did not oppose the motion. The motion was therefore granted. “[I]t would [have been] a senseless waste of judicial resources to require the parties to begin again merely to arrive at the same place.” Kelly v. Carr, 691 F.2d 800, 806 (6th Cir.1980).

The conduct of the United States, when examined in the harsh light of its fiduciary duty, appears shabby and inexcusable. The duty of loyalty owed the Tribe by the United States has been at best ignored, at worst rejected. Nevertheless, given the United States’ status as an intervenor, the Court has no alternative but to address the merits of the United States’ claims.

The alternative claims made by the United States may be summarized as follows:

1. The Tribe did not have aboriginal title to the lakebed at the time the Treaty of 1858 was executed, and therefore the State acquired title to the bed of Lake Andes in 1889 under the equal footing doctrine.
2. The United States acquired any rights or title in the lakebed which the Tribe may have had by virtue of the Cession Agreement of 1892.
3. Any interest or title which the Tribe may have had was extinguished by the Tribe’s voluntary abandonment of the bed of Lake Andes.

Aboriginal title and the Cession Agreement of 1892

As to the first two claims, the United States takes the position that genuine issues of material fact exist which preclude the Court’s consideration of summary judgment. I find, however, that the United States is barred from litigating the issues of aboriginal title and the Cession Agreement of 1892 before this Court by application of the doctrine of mutual defensive collateral estoppel, and alternatively because of the United States’ status as a post-judgment intervenor in this action.

The purpose of collateral estoppel is to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudications.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). The United States Supreme Court has stated that in disputes involving the private rights of private litigants, “no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and there is no sound reason for burdening the courts with repetitive litigation.” Standefer v. United States, 447 U.S. 10, 24, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980). Recently, the Supreme Court extended the doctrine of mutual defensive collateral estoppel to bar the government, as well as private parties, from raising the same issue already litigated against the same party in another case involving the same facts. United States v. Stauffer Chemical Co., 464 U.S. 165, -, 104 S.Ct. 575, 578, 78 L.Ed.2d 388 (1984).

The United States had a full and fair opportunity to litigate the issue of aboriginal title before the Indian Claims Commission in Yankton Sioux Tribe v. United States, 24 Ind.Cl.Comm. 208 (1970). The Commission found that the Tribe had aboriginal title to the lands described in the Commission’s Finding of Fact 14, which describes an area including Lake Andes. The United States then had a second opportunity to refute the Tribe’s title to the lakebed on appeal to the Court of Claims. That court, however, held that the Commission’s order was “in all respects affirmed.” Sioux Tribe v. United States, 500 F.2d 458, 475, 205 Ct.Cl. 148 (1974).

As to whether the Tribe relinquished its title to Lake Andes in the Cession Agreement of 1892, the United States again had a full and fair opportunity to litigate the issue before the Court of Claims. The case dealt with the compensation paid the Tribe by the United States in 1892; the parties disagreed about the number of acres ceded at that time. The Court of Claims agreed with the trial judge that “the computations of the acreage of the Yankton Sioux Reservation ... by both parties were based upon official plats of surveys which did not include the bed of Lake Andes____” Yankton Sioux Tribe v. United States, 623 F.2d 159, 183, 224 Ct.Cl. 62 (1980). The Tribe, concluded the court, was not entitled to compensation for the lakebed. Id. at 183-84. Therefore, it follows that the lakebed was not ceded to the United States in 1892, and that the United States is collaterally estopped from raising the issue here.

It appears that the United States asks this Court to reach a decision inconsistent with the prior decisions of the Indian Claims Commission and the Court of Claims. This tactic is not new, and has not always been looked upon with favor by other courts. Discussing the government’s practice of attempting to relitigate identical issues in different circuit courts, rather than to seek a petition for writ of certiorari to the Supreme Court, one judge noted, “The practice of fomenting inconsistency among various courts of appeals by government officials is unsettling to the course of justice. It is disrespectful toward the courts and hinders efficient judicial administration.” Goodman’s Furniture Co. v. United States Postal Serv., 561 F.2d 462, 465 (3rd Cir.1977) (Weis, J., concurring). Nor has the practice found a more welcome home in the Eighth Circuit. Chief Judge Lay has stated that asking the Eighth Circuit to relitigate a point lost in the Seventh Circuit is “a government litigation policy which abuses the judicial process.” May Dept. Stores Co. v. Williamson, 549 F.2d 1147, 1149 (8th Cir.1977) (Lay, J., concurring).

The United States’ tactic is no more appropriate between the Court of Claims and this District Court than between two circuit courts of appeals. The policy of consistency remains a reflection of basic equity as well as a reflection of the desire to assure reliability in the judicial process. Levin and Leeson, Issue Preclusion Against the United States Government, 70 Iowa L.Rev. 113, 130 (1984). Accordingly, the United States may relitigate neither the aboriginal title question, nor the issue of the Cession Agreement of 1892.

Alternatively, I find that the United States, as an intervenor, is bound by this Court’s holdings in the 1981 Decision that the Tribe has aboriginal title to Lake Andes, and that the Tribe did not cede the lakebed to the United States in 1892. “[Pjermission to intervene does not carry with it the right to relitigate matters already determined in the case, unless those matters would otherwise be subject to reconsideration.” Arizona v. California, 460 U.S. 605, 614-15, 103 S.Ct. 1382, 1389, 75 L.Ed.2d 318 (1983) (emphasis added).

Extinguishment of title by abandonment

A proper analysis of the United States’ final claim, that the Tribe’s title was extinguished when it voluntarily abandoned the lakebed, requires a comparison of this ease with United States v. Dann, — U.S.-, 105 S.Ct. 1058, 84 L.Ed.2d 28 (1985), a case too recent to have been argued or briefed by the parties here. In United States v. Dann, the government claimed, inter alia, that Indian title had been extinguished as a result of federal administration of Indian lands for nearly 50 years. The Ninth Circuit Court of Appeals disagreed. The Supreme Court found it unnecessary to reach the merits, and reversed the court of appeals on a narrow question of statutory construction.

In 1951, the Western Shoshone Indians filed a claim with the Indian Claims Commission asserting that the United States owed the Western Shoshones certain sums for the taking of aboriginal title land in several western states. The Commission awarded the Indians a sum in excess of $26 million. 40 Ind.Cl.Comm. 318, 452 (1977). Subsequently, the Danns, defendants in United States v. Dann, claimed that the proceedings before the Indian Claims Commission had not decided the question of whether the Indians’ title was extinguished, and sought to raise the issue in further litigation.

In 1978, the Ninth Circuit Court of Appeals held that the issue of title to the land claimed by the Danns (a small portion of the land involved in the 1951 claim) had not been decided by the Indian Claims Commission because the question of extinguishment was not in issue in those proceedings and was therefore never litigated. United States v. Dann, 572 F.2d 222, 226-27 (9th Cir.1978) (Dann I). The court also held in Dann I that neither collateral estoppel nor res judicata applied to bar the Danns from litigating the title question because the judgment of the Commission was not “final,” in that the money awarded the Western Shoshones had not actually been distributed to the Indians. Id.

Following the Ninth Circuit’s decision in Dann I, but before the case was decided by the district court on remand, the Court of Claims affirmed the money award of the Indian Claims Commission. Temoak Band of Western Shoshone Indians v. United States, 593 F.2d 994, 219 Ct.Cl. 346, cert. denied, 444 U.S. 973, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979). The Supreme Court denied certiorari, and the award was therefore subject to no further judicial review. Accordingly, the Clerk of the Court of Claims certified the award to the General Accounting Office. The district court, after considering the mandate of the Ninth Circuit in Dann I, as well as the decision of the Court of Claims, held that the Indians were barred from relitigating the title issue because title was extinguished as of the date the award was certified to the General Accounting Office. United States v. Dann, No. R-74-60 (D.Nev. Apr. 25, 1980).

The case was again appealed to the Ninth Circuit for consideration of two issues:

(1) Whether certification of the award absent actual payment constituted a final determination for purposes of res judicata and collateral estoppel, and
(2) Whether federal administration of the lands in question for nearly 50 years pursuant to the Taylor Grazing Act, 43 U.S.C. section 315 (1976), caused the Indian title to be extinguished.

United States v. Dann, 706 F.2d 919 (9th Cir.1983), rev’d and rem on other grounds, — U.S. —, 105 S.Ct. 1058, 84 L.Ed.2d 28 (1985) (Dann II).

The appellate court found in favor of the Danns on both issues. The court rejected the government’s argument that Indian title was extinguished by federal possession and control of the lands, stating that any actions taken by the executive, and thereafter said to extinguish Indian title, depend for their efficacy on Congress’ acquiescence. Dann II, supra, 706 F.2d at 929, citing United States v. Southern Pacific Transp. Co., 543 F.2d 676, 689 (9th Cir.1976). Moreover, the court also alluded to the fiduciary duty of the United States, observing that “[a]n extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Dann II, supra, 706 F.2d at 929, quoting United States v. Santa Fe Pacific R.R., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941).

The United States Supreme Court granted certiorari solely to resolve the narrow question of whether certification of the award and the subsequent placement of funds by the United States into a Treasury account constitutes final payment, discharging the United States of all claims pursuant to section 22(a) of the Indian Claims Commission Act, 25 U.S.C. section 70u(a) (1976). United States v. Dann, supra, 105 S.Ct. at 1062. The Court held that final payment had been made, and the claim discharged; therefore, it never reached the issue of whether the United States had extinguished Indian title by administering the lands pursuant to the Taylor Grazing Act, the only issue pertinent to the case at bar. Id. Furthermore, the Supreme Court expressly declined to give an opinion as to whether the aboriginal title rights of the individual Indian defendants had been extinguished. Id., 105 S.Ct. at 1065.

The question presented in United States v. Dann, regarding finality of payment, is not at issue in the instant case. The Tribe does not claim compensation for any “taking” of Lake Andes, and no such compensation was ever paid. I conclude that United States v. Dann is clearly distinguishable from the case at bar, and I may therefore proceed to consider the merits of the United States’ claim of abandonment.

All parties agree that no genuine issue of material fact exists, making the question properly before the Court in a motion for summary judgment. The issue presented is whether tribal title to real property can be lost by mere inaction or abandonment, absent a plain and unambiguous expression of intent by Congress to extinguish Indian title. I find that it cannot, and therefore conclude that, even assuming arguendo it is factually correct, the United States’ claim of abandonment is insufficient as a matter of law to extinguish the Tribe’s title to the bed of Lake Andes.

There are two types of Indian title: unrecognized or aboriginal title, and title which has been recognized by treaty or executive order. An Indian tribe holding aboriginal title to land has an exclusive right to use and occupy that land, a right that can be extinguished only by the sovereign. See F. Cohen, Handbook on Federal Indian Law at 487 (1982 ed.), and cases cited therein. Unless the aboriginal title has been expressly extinguished by the United States, any grant or conveyance of the property, whether by the Indian tribe, the United States, or another party under claim of right, is subject to the Indian title and does not extinguish the Indian right of occupancy. United States v. Santa Fe Pacific R.R., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941); Johnson v. McIntosh, 21 U.S. (8 Wheat) 543, 5 L.Ed. 681 (1821).

In the instant case, the Court held in the 1981 Decision that the Tribe holds aboriginal title to the bed of Lake Andes. As discussed above, the United States is barred from relitigating that question. Furthermore, the Court found in the 1981 Decision that the United States did not expressly extinguish the Tribe’s aboriginal title to Lake Andes in the 1858 treaty, and the United States, as an intervenor, is bound by that finding. Arizona v. California, supra, 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318.

The effect of the Treaty of 1858 on the Tribe’s aboriginal title is unmistakable. A treaty is not, as the United States seems to argue here, a grant of rights to the Indians, but is rather a grant of rights from the Indians to the United States. United States v. Wheeler, 435 U.S. 313, 327 n. 24, 98 S.Ct. 1079, 1088 n. 24, 55 L.Ed.2d 303 (1978); United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905); Klamath Indian Tribe v. Oregon Dept. of Fish & Wildlife, 729 F.2d 609, 611 (9th Cir.), cert. granted, — U.S. -, 105 S.Ct. 242, 83 L.Ed.2d 180 (1984). When the United States and an Indian tribe negotiate a treaty, all rights not expressly ceded to the United States are thus retained by the tribe. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 98 S.Ct. 1011, 1020, 55 L.Ed.2d 209 (1978); United States v. Adair, 723 F.2d 1394, 1413 (9th Cir.1984). The Tribe’s aboriginal title to the lakebed, having survived the 1858 treaty, therefore became recognized title. The sole question remaining is whether, as the United States claims, the Tribe’s treaty rights have been abrogated at any time since 1858; if not, a fortiori, the Tribe’s title has not been extinguished.

Congress has the absolute right to abrogate Indian treaty rights. Lone Wolf v. Hitchcock, 187 U.S. 553, 566-68, 23 S.Ct. 216, 221-22, 47 L.Ed. 299 (1903). It is settled that such rights may be abrogated by “treaty, by the sword, by purchase, [or] by the exercise of complete dominion adverse to the right of occupancy____” Santa Fe Pacific, supra, 314 U.S. at 347, 62 S.Ct. at 252, quoting Beecher v. Wetherby, 95 U.S. (5 Otto) 517, 525, 24 L.Ed. 440 (1877). In the instant case, the United States relies entirely on the phrase, “the exercise of complete dominion” to support its position. Courts have emphatically ruled, however, that no matter the method employed to abrogate treaty rights, Indian title cannot be extinguished absent a plain and unambiguous expression by Congress of its intent to do so. Santa Fe Pacific, supra, 314 U.S. at 353-54. This circuit has adamantly followed that rule. See United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002, 1005 (8th Cir.1976).

To determine whether Congress has manifested such an intent, courts customarily look first to determine whether treaty rights have been abrogated by statute. The case at bar, however, is not a question of statutory abrogation of treaty rights. The United States does not allege any statutory abrogation. The government argues only that the Tribe’s title was extinguished through the establishment, enlargement and administration of the Lake Andes Wildlife Refuge, pursuant to an executive order, and by virtue of the government’s continuous, exclusive possession and control of the bed of Lake Andes. See Memorandum of the United States In Support of Its Motion for Summary Judgment at 7.

In the instant case, the United States relies on United States v. Gemmill, 535 F.2d 1145 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976), which established that the inclusion of aboriginal lands within a national forest may extinguish aboriginal title. In Dann II the Ninth Circuit distinguished its earlier decision in Gemmill, however, noting that in Gemmill the Indians had been forcibly removed from the lands in question over 100 years before the decision, and that the forcible removal was a critical factor in the court’s decision. Dann II, supra, 706 F.2d at 932-33.

In the instant case, the United States alleges neither a forcible removal of the Tribe, nor any act of Congress which would indicate intent to abrogate the Tribe’s treaty rights. This Court must therefore look for some other clear and unambiguous expression of congressional intent to abrogate Indian title, particularly in light of the United States’ trust responsibility toward the Tribe. There simply is no such clear and unambiguous expression of intent in this case.

The authority is clear. Abandonment, even if it can be shown, does not extinguish Indian title absent the express intent of Congress. The Tribe holds aboriginal title to Lake Andes, and its aboriginal title was recognized by the Treaty of 1858. Since 1858, Congress has not clearly and unambiguously manifested an intent to abrogate the Tribe’s treaty rights, and it follows that the Tribe’s recognized title to the bed of Lake Andes has not been extinguished. The United States’ abandonment argument must fail, and the Tribe must prevail on its motion for summary judgment.

United States’ motion for leave to supplement the record

In view of the Court’s finding that the United States is barred from relitigating the issues of aboriginal title and the Cession Agreement of 1892 by the doctrine of mutual defensive collateral estoppel, and alternatively because the United States, as an intervenor, has no right to relitigate matters already determined in the case, no purpose would be served by allowing the United States to supplement the record as to those issues. To allow the introduction of further evidence in the face of an absolute legal bar would be an unconscionable waste of judicial time and resources.

As to the abandonment issue, the United States wishes to introduce evidence pertaining to whether the Tribe voluntarily abandoned the lake either subsequent to the 1892 Cession Agreement, or when the wildlife refuge was established in the 1930’s. The Court has found, however, that even assuming arguendo the United States can establish the factual basis, its claim fails as a matter of law, because abandonment does not extinguish Indian title absent the express intent of Congress to abrogate the Tribe’s treaty rights. Ergo, permitting the United States to supplement the record as requested would be an empty and futile gesture, and further extend this seemingly interminable litigation. There is absolutely no legal basis for the Court to do so.

CLAIMS OF THE STATE AND COUNTY

The State and County move for summary judgment for the purpose of seeking reconsideration of the Court’s earlier disposition of the equal footing doctrine and 1892 Cession Agreement issues. See Memorandum of the State of South Dakota and Charles Mix County for Support of Cross Motion For Summary Judgment at 2. The Tribe argues that the State and County are bound by the 1981 Decision against them, and that absent a timely motion to amend, the State and County cannot seek to relitigate any issues.

The State and County concede the absence of such a timely motion, but contend that this lawsuit was reopened for further litigation by all the parties when the Court established a schedule for the filing of summary judgment motions by the Tribe and the United States. The United States, they argue, was bound by the August 5, 1983 judgment when it intervened in the case, just as were the other parties; therefore, permitting the United States and the Tribe to litigate issues raised in the complaint in intervention could only mean that the Court intended the prior judgment to be set aside. I. find, however, that the August 5, 1983 judgment binds the State and County, and that the judgment has not been set aside.

The arguments of the State and County are made ipse dixit, except for the proposition that an intervenor is bound by all prior orders and adjudications in the lawsuit. See Galbreath v. Metropolitan Trust Co. of Calif., 134 F.2d 569 (10th Cir.1943). The Court accepts that general principle of law, as restated by the Supreme Court in Arizona v. California, supra, 103 S.Ct. at 1389. But as noted above, Justice Rehnquist, writing for the Court in Arizona v. California, was very specific that the bar on relitigation applies only to matters already determined in the case, and on that basis I have already found that the United States is barred from relitigating two such issues.

The United States’ claim of abandonment subsequent to 1858, however, had not been previously litigated in this action, and an intervenor is certainly not barred from raising new issues in a complaint in intervention. If that were the case, an interested party would never seek to intervene after a judgment, nor, for that matter, would post-judgment intervention ever be permitted. Therefore, because it is well settled that intervention after entry of judgment is proper in some situations, Nevilles v. Equal Employment Opportunity Com’n., 511 F.2d 303, 305 (8th Cir.1975), it follows that an intervenor is not bound by a prior judgment in the literal sense of res judicata. This interpretation also comports with the 1966 Amendment to Federal Rule of Civil Procedure 24. See also Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 541 (8th Cir.1970).

I conclude that the post-judgment intervention of the United States and the Court’s subsequent actions in scheduling motions for summary judgment to be filed by the Tribe and the United States did not have the effect of setting aside the August 5, 1983 judgment and reopening the case for further litigation.

Moreover, even if I were to find that the judgment had been set aside (which I expressly decline to do), I would find that the law of the case doctrine serves to bar the State and County from relitigating issues previously decided in the case. A prior decision in a case is the “law of the case” in all subsequent proceedings unless:

(1) The evidence sought to be introduced in the subsequent proceeding is substantially different from that first considered by the court, or
(2) The prior decision is clearly erroneous and works manifest injustice.

Continental Bank & Trust Co. v. American Bonding, 630 F.2d 606, 608 (8th Cir.1980). While this rule of practice is not a limit of power, it is nevertheless a salutary one, and must be followed in both district and appellate courts. Id.

The State and County claim to be seeking reconsideration of the equal footing doctrine and 1892 Cession Agreement issues on the basis of “new matters”, thereby satisfying the first prong of the Continental Bank & Trust Co. test. In fact, however, they cite no significantly new or different legal authority, and make no new legal arguments. Neither do they seek to introduce any “substantially different” evidence. In short, they present the Court with no compelling reason to depart from the law of the case.

Furthermore, the State and County do not contend, nor does the Court find, that the prior decision in this case is clearly erroneous and works manifest injustice. On the contrary, to needlessly protract this litigation beyond the nearly nine years it has already consumed would be to work manifest injustice. Accordingly, I find that while the case has not been reopened for further litigation, the • State and County would in any event be precluded from relitigating the equal footing doctrine and 1892 Cession Agreement issues because the Court’s earlier ruling on those issues is the law of the case.

RULE 59(e) MOTIONS TO AMEND THE JUDGMENT

The motion of the Tribe and the joint motion of the State and County to amend the judgment may be considered together. The language in the August 5, 1983 judgment which the parties contend requires clarification is found in the second paragraph, where the Court finds the Tribe to be the owner “of the Lake Andes bed.” The issue is the precise location of the lakebed boundary.

The Tribe wishes to define the area of ownership to be “the Lake Andes bed, as meandered by government survey in 1875.” The State and County would have the Tribe described as the owner “of that portion of the bed of Lake Andes over which the State of South Dakota has exercised ownership under claim of right.”

This disagreement arises late in the litigation, to say the least. From the outset, both sides have referred to the meander line surveyed in 1875 in pleadings and briefs, and both have relied upon its accuracy. In the usual quiet title action, of course, the boundaries of the property in question are determined by the description in the complaint. This lawsuit, however, began as a trespass action, and the property was only generally described until the Tribe filed its motion for summary judgment, in which the lakebed was described as having dimensions of eight miles by one and one-half miles, determined by the official government survey. In addition, the Tribe attached to its motion a plat map showing the 1875 meander line.

The Tribe argues that establishing the meander line as the boundary is the proper resolution of the question both as a matter of law, and as a practical matter. It is the Tribe’s position that reliance on the meander line provides a clear and ascertainable boundary which will not implicate the property rights of non-parties. I agree.

The language proposed by the State and County is so obscure that it would almost certainly engender further litigation if it were incorporated into the judgment. Neither the parties nor the adjoining landowners have any way to determine with certainty which portion of the lakebed was historically subject to the State’s claim of right. To adopt it would therefore result in the exact situation the State and County seek to avoid — riparian landowners could point to no definite boundary separating their property from the Tribe’s property.

The Tribe’s proposed amendment, on the other hand, does nothing more than incorporate the language of the pleadings into the express language of the judgment, yielding a result similar to that of a more routine quiet title action. Furthermore, establishing the meander line as a boundary has the advantage of certainty for parties and non-parties alike.

However, the Court is mindful of the argument made by the United States, that the meander line is merely a representation of the ordinary high water mark at the time of the survey, and not a fixed boundary. The United States cites Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973), for the “usual rule” of riparian ownership, that the boundary of the property riparian to a navigable body of water is subject to loss or gain as the water boundary changes. The Court rejects this authority, however, in view of the fact that Bonelli was expressly overruled by the Supreme Court in Oregon v. Corvallis Sand. & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977).

Moreover, there is nothing “usual” about the instant case. Allowing riparian landowners to exercise ownership of all the land to the water’s edge would effectively destroy the Tribe’s ownership of the bed in dry years. This case is therefore analogous to those cases in which a substantial amount of land is formed by accretion between the meander line and the water. Faced with such facts, courts have not hesitated to fix the meander line as the boundary, which is the only equitable solution. See DeBoer v. United States, 653 F.2d 1313, 1315 (9th Cir.1981), and cases cited therein. Also analogous is the equitable principle that land is equally subject to loss by erosion as it is to gain. See Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967).

In the instant case, consideration of the equities compels the same result as in those cases where land is formed by accretion below the meander line. It would unjustly enrich the landowners adjoining Lake Andes to hold that their property, in dry years, extends to the water’s edge. The result would be that in years when the lakebed was completely dry, as it was when this litigation began, the Tribe would own nothing. I refuse to accept such an inequitable outcome. The meander line is the logical, natural and equitable boundary of the lakebed.

The Tribe’s proposed amendment is accepted, the State and County’s is rejected. The phrase “the Lake Andes bed, as meandered by government survey in 1875” will be substituted for the phrase “of the Lake Andes bed” in the August 5, 1983 judgment.

SUMMARY

This case is now nearly nine years old. Although remanded for a simple factual determination only, the State, the County and the United States would have this Court discard its prior rulings and reopen every issue for further litigation. Such a sweeping reconsideration of the issues, however, would serve neither the law nor justice. This Court and others have furnished the parties every opportunity to argue and reargue the case. The lawsuit must now, finally, be brought to an end.

The Yankton Sioux Tribe of Indians owns the bed of Lake Andes.

IT IS THEREFORE ORDERED that the United States’ Motion for Summary Judgment, the United States’ Motion For Leave to Supplement the Record, the State and County’s Rule 59(e) Motion to Amend the Judgment, and the State and County’s Motion for Summary Judgment are DENIED, and

IT IS FURTHER ORDERED that the Tribe’s Motion for Summary Judgment and the Tribe’s Rule 59(e) Motion to Amend the Judgment are GRANTED.

This memorandum decision constitutes the Court’s findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. Counsel for the plaintiff Yankton Sioux Tribe of Indians may prepare an appropriate judgment in accordance with this decision.

      . Executive Order No. 7292, February 14, 1936.

      . Yankton Sioux Tribe of Indians v. Nelson, 521 F.Supp. 463 (D.S.D.1981).

      . Yankton Sioux Tribe of Indians v. Nelson, 683 F.2d 1160 (8th Cir.1982).

      . Yankton Sioux Tribe of Indians v. Nelson, 566 F.Supp. 1507 (D.S.D.1983).

      . The Tribe’s motion for summary judgment was filed December 1, 1983; the United States’ motion was filed February 22, 1984.

      . Filed January 5, 1984.

      . While the United States intervened as a party plaintiff, its interests are clearly aligned with those of the State. The United States has advised the Court that any dispute between the United States and the State can be resolved by stipulation and therefore need not be decided by the Court.

      . Yankton Sioux Tribe of Indians v. Nelson, 566 F.Supp. 1507 (D.S.D.1983).

      . This is not, of course, to elevate the quality of recognized title above that of aboriginal title except in one respect: a taking of recognized title is compensable, while a taking of aboriginal title is not. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955); United States v. Creek Nation, 295 U.S. 103, 55 S.Ct. 681, 79 L.Ed. 1331 (1935).

      . See United States v. Dion, 752 F.2d 1261 (8th Cir.1985).

      . The only issue raised by the Rule 59(e) motion of the State and County presently before the Court is the location of the lakebed boundary.


source: Caselaw Access Project

author: MENCER, District Judge.

license: Public Domain

text:
    Charles W. FERGUSON, Plaintiff, v. FREEDOM FORGE CORPORATION, t/d/b/a Standard Steel, A Corporation, Titanium Metals Corporation of America, A Delaware Corporation, David D. Borland, an individual, and Joseph W. Wapner, an individual, Defendants.
    Civ. A. No. 84-0759.
    United States District Court, W.D. Pennsylvania.
    April 2, 1985.

      J. Craig Kuhn, Kuhn Engle & Stein, Pittsburgh, Pa., for plaintiff.
    Anthony J. Polito, Corcoran Hardesty Ewart Whyte & Polito, P.C., Pittsburgh, Pa., for defendants.
   OPINION

MENCER, District Judge.

The plaintiff, Charles W. Ferguson, brings this action against the defendants, Freedom Forge Corporation (hereinafter referred to as Standard Steel), Titanium Metals Corporation of America, David D. Borland and Joseph E. Wapner, to contest the termination of his employment and to recover certain benefits allegedly owed to him. This action was removed from the Court of Common Pleas of Westmoreland County. We have jurisdiction pursuant to the Employee Retirement Income Security Act (hereinafter referred to as ERISA), 29 U.S.C. § 1001 et seq. and pendent jurisdiction.

The plaintiff alleges four separate causes of action. Count I alleges a claim under Pennsylvania law for wrongful discharge; Count II alleges a claim in assumpsit under Pennsylvania law for breach of an implied contract of employment; Count III alleges a claim under ERISA for violations of pension plan rights; and Count IV alleges a claim in quasi contract for appropriation of the plaintiff’s intellectual property. Standard Steel is a defendant with respect to all four counts. Defendants Borland and Wapner, however, are named only with respect to Counts I and III. Defendant Titanium Metals Corporation of America is named only in Count III.

The Court has before it defendants’ Motion for Summary Judgment. The plaintiff opposes the motion, contending that there are substantial issues of material fact which prevent the entry of summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) provides that summary judgment is proper if “the pleadings, depositions, answers to ■ interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Whether or not disputed issues of material fact exist should be ascertained by resolving “all inferences, doubts and issues of credibility against the moving party.” Ely v. Hall’s Motor Transit Company, 590 F.2d 62 (3d Cir.1978).

This action arose out of the termination of the plaintiff’s employment on November 2, 1983. The plaintiff had been employed with the defendant, Standard Steel, since 1948, except for a brief period of lay off and military service. At the time of his termination, the plaintiff was employed as a General-Foreman in the Internal Transportation Department of the defendant Standard Steel’s Burnham, Pennsylvania plant. The plaintiff was not a member of any bargaining unit. The plaintiff alleges that his termination was a result of his continuing association with the former president of that company, Mr. Fogerty, who had been discharged previously. The plaintiff also alleges that in a meeting with three supervisors on November 2, 1983, he was accused of stealing two five gallon cans of gasoline. At this meeting, it is alleged that the plaintiff was required to choose between resigning and receiving six months severance pay, or being discharged for misconduct. The plaintiff chose to resign.

In order to facilitate discussion of the defendant’s Motion, we will discuss defendants’ Motion, with respect to each count, in separate sections below.

I. Wrongful Discharge

In order to preclude summary judgment, there must be a disputed issue as to a material fact. Even though a dispute may exist relative to a certain fact, the court is not prevented from entering summary judgment unless that fact is material. Fed. R.Civ.P. 56(c). The defendants in this case concede that there is a factual dispute as to the reason for the plaintiff’s termination. However, the defendants contend that the reason is not a material fact because even if the plaintiff’s reason for his termination is assumed to be correct, the plaintiff has failed to state a claim under Pennsylvania law for wrongful discharge.

The plaintiff was an employee-at-will of defendant Standard Steel. The law in Pennsylvania for many years has been that an employer “may discharge an employee with or without cause, at pleasure, unless restrained by some contract.” Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 297, 21 A. 157 (1891). It is still true today that “[i]n general, there is no non-statutory cause of action for an employer’s termination of an at-will employment relationship.” Reuther v. Fowl er & Williams, Inc., 255 Pa.Super. 28, 31, 386 A.2d 119, 120 (1978). An exception to that general principle was recognized by the Pennsylvania Supreme Court in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), which held that, when the discharge of an employee-at-will threatens public policy, the employee may have a cause of action against the employer for wrongful discharge. The court stated: “there are areas of an employee’s life in which his employer has no legitimate interest.” The court went on to add that an employer’s intrusion into one of those areas may give rise to a cause of action, particularly where “some recognized facet of public policy is threatened.” Id. at 184, 319 A.2d at 180. The Third Circuit has interpreted Geary as signaling a narrow rather than an expansive interpretation of the public policy exception. Bruffett v. Warner Communications, Inc., 692 F.2d 910, 918 (3d Cir.1982).

In Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir.1983), the Third Circuit held that Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy. The question we must decide is whether an averment of discharge for associating with a particular individual, which we take as true for purposes of this motion, is sufficiently violative of public policy as to state a cause of action. We hold that it does not violate a clear mandate of public policy sufficient to fall within the exception to the employee-at-will doctrine and grant defendants’ Motion for Summary Judgment for Count I.

In Novosel, the court held an employee’s discharge fell within the public policy exception since the employee’s freedom of political expression was violated. The court stated that the employee’s freedom of political expression involved “no less compelling a societal interest than the fulfillment of jury service or the filing of a workers’ compensation claim,” two situations which were held by the Pennsylvania Superior Court to fall within the public policy exception. Novosel, at 899. The interest of the employee in this case, to be free to associate with Mr. Fogerty, does not rise to the same public policy level as the interest of the employee in Novosel to be free to express his political views.

The plaintiff, in his brief, relies on Roberts v. United States Jaycees, — U.S. -, -, 104 S.Ct. 3244, 3249, 82 L.Ed.2d 462, 471 (1984), for the proposition that the Bill of Rights affords “the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” However, the Supreme Court in Roberts discussed, in two distinct senses, the constitutionally protected freedom of association. One line of its decisions, the Court noted, protects an individual’s choice to enter into and maintain certain intimate human relationships. In that regard, freedom of association receives protection as a fundamental aspect of personal liberty. Another set of decisions recognizes “a right to associate for the purpose of engaging in those activities protected by the 1st Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” This type of freedom of association is guaranteed by the constitution as a means of preserving other individual liberties. The Supreme Court noted that “the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case.” Id. at -, 104 S.Ct. at 3249, 82 L.Ed.2d at 471. The Court went on to state that the personal affiliations that exemplify the associational relationships, and that also suggest limitations on the relationships entitled to the constitutional protection, are those that attend the creation and sustenance of a family.

The interest of a person to associate with a particular individual who is not a family member, does not rise to the same public policy level. The plaintiff has not stated a claim under the limited public policy exception to the employment-at-will doctrine in Pennsylvania.

The same analysis may be used to determine whether the individual defendants wrongfully discharged the plaintiff. We hold that as the plaintiff failed to state a claim under the public policy exception, the defendants, Standard Steel, David Borland and Joseph Wapner, are entitled to summary judgment on Count I.

II. Implied Contract of Employment

Plaintiffs second count rests on the theory of an implied contract of employment with the defendant, which allegedly was to last as long as the performance of the plaintiffs duties was satisfactory. The plaintiff alleges that, on the basis of his expectation of continued employment, he made no effort to obtain other employment.

In Pennsylvania, it is presumed that an employee serves at the pleasure of an employer and that the relationship may be terminated for any or no reason by either party at any time, absent a specific duration. Jackman v. Military Publications, Inc., 350 F.2d 383, 385 (3d Cir.1965); Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 297, 21 A. 157 (1891). This presumption may be overcome by a showing that the parties intended that the contract last for some definite period of time or for a reasonable time or by showing that the plaintiff-employee gave the defendant consideration in addition to the employee’s normal services. McNulty v. Borden, Inc., 474 F.Supp. 1111 (E.D.Pa.1979). In McNulty, the plaintiff-employee had rejected many other offers of employment, both within and outside the food industry, in reliance on representations made to him by his superiors that he would eventually be promoted. Id. at 1119. The court held that it would not be unreasonable for a trier of fact to conclude that the parties intended the plaintiff's employment contract to extend for a reasonable time if those allegations were established at trial.

The Pennsylvania Supreme Court has noted, “[i]f the plaintiff had been forced to forego other employment, that may amount to additional consideration.” Cummings v. Kelling Nut Co., 368 Pa. 448, 84 A.2d 323 (1951). In our case, the plaintiff simply alleges that he refrained from seeking other employment. We cannot say that abstaining from looking for another job is consideration in addition to an employee’s normal services sufficient to overcome the presumption of employment-at-will. If such a representation by the plaintiff was to create an implied reciprocal promise by the employer of continuous employment, practically no employment would be terminable at will.

The plaintiff has not alleged a written contract for his services nor an oral or written promise of a job for a definite period of time. The evidence fails to establish a contract for any definite term or duration. In his own deposition, Mr. Ferguson acknowledged that he had no oral or written agreement with the defendant that led him to believe he had a job as long as he performed his work in a satisfactory manner. Mr. Ferguson stated in his deposition that he understood that he could be terminated with or without cause. Therefore, defendant Standard Steel is entitled to summary judgment on Count II.

III. ERISA Claims

The third count of the plaintiff’s complaint is based on his claim under ERISA for an amount equal to the difference between the amount of his pension if he were to have continued employment, and the amount of his pension based on his earnings to the date fixed by his termination, as well as a claim for a retirement bonus. Titanium Metals Corporation of America was joined in this count by reason of its being the Plan Administrator and Named Fiduciary of the Plan. Wapner and Borland were joined because of their alleged membership on the Retirement Board.

A. Against Standard Steel

The complaint alleges that as a result of the plaintiff’s unjust discharge by defendant Standard Steel, his right to receive a pension based on his service benefits continuing to age 65 has been improperly terminated, in violation of his rights under the Pension Plan and under the provisions of ERISA. The applicable enforcement provision of ERISA for interference with protected rights is set forth at 29 U.S.C. § 1140, Section 510 of ERISA, as follows:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan,; this subchapter, or the Welfare and Pension Plans Disclosure Act. (Emphasis added.)

An employee can recover under this provision if it can be shown that the reasons given by the employer for the plaintiff-employee’s termination were pretextual and if the true purpose of the discharge was to deprive the employee of his pension rights. Ursic v. Bethlehem Mines, 556 F.Supp. 571 (W.D.Pa.), aff'd in pertinent part, 719 F.2d 670, 671 (3d Cir.1983). The court in Ursic held that the employer’s reasons for discharging the plaintiff were pretextual. However, the employee in that case had alleged in his complaint wrongful deprivation of his pension rights by a contrived pretextual firing prior to the vesting of his rights.

There has been no allegation in this case that the plaintiff’s employer discharged him with the intent to interfere with his pension rights. The complaint regarding the ERISA count merely alleges that, as a result of his unjust discharge, the plaintiff’s right to receive a pension has been improperly terminated. (Emphasis added.) Paragraph 24 of the complaint incorporates by reference paragraphs 1 through 23 into Count III. In paragraph 13, the plaintiff alleges that the sole reason for his termination was his ongoing association with Mr. Fogerty. According to the court in Titsch v. Reliance Group, Inc., 548 F.Supp. 983 (S.D.N.Y.1982), aff'd 742 F.2d 1441 (2d Cir.1983), “[n]o cause of action lies where the loss of pension benefits was a mere consequence of, but not a motivating factor behind, a termination of employment.” Id. at 985. After full discovery in that case, no evidence was found that would have indicated that the defendants sought to interfere with the employee’s pension benefits. Therefore, the court granted summary judgment on behalf of the employer and individual defendants. Similarly, after full discovery in this case, no evidence has been presented to the court that would indicate the motivation behind the plaintiff’s termination was to interfere with his pension benefits. As to the third cause of action, therefore, defendant Standard Steel’s motion for summary judgment is granted.

B. Against David Borland

Count III against David Borland proceeds under the assumption that he was a member of the Retirement Board of the Plan. According to his deposition, and that of Joseph Wapner, David Borland was never a member of the Retirement Board. Therefore, summary judgment will be entered in his favor.

C. Against Joseph Wapner

Count III is based on an allegation that Mr. Wapner, who was a member of the Retirement Board, participated in the decision to seek the plaintiff’s discharge or resignation. Mr. Wapner did not participate in the meeting or in the decision to ask for the plaintiff’s resignation on November 2, 1983, but he did participate in discussions regarding the situation on the previous day.

The plaintiff in paragraph 27d of his amended complaint alleges that because of Mr. Wapner’s participation in and responsibility for the plaintiff’s unjust termination, Mr. Wapner knew of the effect such termination would have on the plaintiff’s rights and benefits under the Plan and, thus, his actions were a breach of his fiduciary duty. It is not alleged, however, that Mr. Wapner acted during those discussions with the purpose of interfering with the attainment of pension benefits by the plaintiff. Accordingly, summary judgment will be granted as to defendant Wapner.

D. Against Titanium Metals Corporation of America

There is no genuine issue of material fact as to Titanium Metals Corporation of America (TMCA). Although TMCA is the Named Fiduciary and Plan Administrator, there is no evidence that it participated in the decision to ask for the plaintiffs resignation. Therefore, summary judgment will be entered in favor of TMCA.

IV. Cost Reduction Proposal

The plaintiff alleges that he submitted a cost reduction proposal to the defendant which was implemented on September 13, 1983, at an annual savings to the Company of $264,047.00. The plaintiff further alleges that the defendant appropriated his intellectual property (the proposal) by realizing its monetary value without compensating the plaintiff, and the defendant has consequently been unjustly enriched. In his deposition, the plaintiff acknowledges that because of his employment with the defendant, he was only entitled to “the chance to win an award [at a dinner for salaried employees who have submitted cost reduction proposals], possibly the chance to win a $500 sum of money, or any portion thereof” for his proposal. The plaintiff stated also that the proposal would have become part of his performance appraisal.

The affidavit of David D. Borland states that “it has been the custom and practice at Standard Steel not to invite to the dinner for salaried employees who have submitted cost reduction proposals, any salaried employee who had resigned prior to the dinner.” The affidavit of R.L. Ingram states that at this dinner, a raffle ticket was placed in the drawing for prizes on behalf of Charles Ferguson. It also states that:

[S]alaried employees submitting proposals resulting in a total cash savings to the Company in the calendar year of $100,000 or more also qualify for a special $200 cash award. The proposal submitted by Mr. Ferguson in 1983 did not result in a total savings to the Company of $100,000 in that calendar year and he did not therefore qualify for the special $200 cash award.

Whether summary judgment is appropriate on Count IV can be determined by applying Rule 56(e) of the Federal Rules of Civil Procedure which states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The plaintiff has not submitted affidavits setting forth specific facts showing that there is a genuine issue for trial. Consequently, summary judgment will be entered for defendant Standard Steel.

An appropriate order will issue.

ORDER

AND NOW, this 2nd day of April, 1985, IT IS ORDERED that:

(1) Defendant Standard Steel’s Motion for Summary Judgment is GRANTED as to Counts I, II, III and IV;
(2) Defendant David D. Borland’s Motion for Summary Judgment is GRANTED as to Counts I and III;
(3) Defendant Joseph E. Wapner’s Motion for Summary Judgment is GRANTED as to Counts I and III; and
(4) Defendant Titanium Metals Corporation of America’s Motion for Summary Judgment is GRANTED as to Count III.

Judgment is entered in favor of the defendants, Standard Steel, David D. Borland, Joseph E. Wapner, and Titanium Metals Corporation of America, and against the plaintiff, Charles W. Ferguson.


author: LONGOBARDI, District Judge.

text:
    Frederic G. KRAPF, Jr., et ux., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-82 LON.
    United States District Court, D. Delaware.
    March 21, 1985.
    Robert E. Schlusser, Steven J. Stirparo, Schlusser & Reiver, Wilmington, Del., for plaintiffs.
    Richard G. Andrews, U.S. Atty’s Office, Wilmington, Del., Michael J. Salem, U.S. Dept, of Justice, Washington, D.C., for defendant.
   OPINION

LONGOBARDI, District Judge.

In this action, Plaintiffs, Frederick G. Krapf, Jr. and June B. Krapf, seek a refund of certain federal income taxes paid to the United States between 1976 and 1979. Presently before the Court is the United' States’ motion to dismiss because of improper venue.

The dispute in this case concerns the value of 26,000 shares of common stock of Mechtron Industries, Inc. which the Plaintiffs donated to the University of Delaware in 1976. The Plaintiffs claim that the Mechtron stock should be valued at $10.00 per share or $260,000 and that they are entitled to a charitable deduction in that amount. The United States contends that the stock is worth much less than the value attributed to it by the Plaintiffs.

Under the provisions of 28 U.S.C. § 1402(a)(1), the proper venue for a suit for a federal tax refund lies only in the judicial district in which the plaintiff resides. Since this claim is premised upon a federal tax refund, it is apparent that venue is proper only in a district where Plaintiffs reside. Although Plaintiffs at one time did reside within the District of Delaware, they have since moved outside the District. In fact, the Plaintiffs are not residents of any judicial district since they currently reside in the Bahamas.

Despite the fact that the venue provisions of 28 U.S.C. § 1402(a)(1) preclude litigation of Plaintiffs’ claim in any district court, Plaintiffs are not deprived of a forum. Under 28 U.S.C. § 1346(a)(1), the United States Claims Court exercises concurrent jurisdiction with the district courts to hear federal tax refund suits.

The Plaintiffs argue that despite the ability of the Court of Claims to hear their suit, they should be able to avail themselves of the same rights as resident citizens and have their case heard by a district court. At oral argument, however, Plaintiffs withdrew their constitutional objections to the different treatment the venue statute afforded resident and non-resident citizens. Thus, the only remaining issue is the plain meaning of the federal venue statutes.

There is no reason to presume that the plain meaning of the venue statutes does not dispose of this issue. In Shaw v. United States, 422 F.Supp. 339 (S.D.N.Y.1976), when faced with an identical fact situation, the Southern District of New York ruled that non-resident citizens are not residents for the purposes of 28 U.S.C. § 1402(a)(1) and are thereby precluded from bringing suit in any United States District Court. Id. at 341. Contrary to Plaintiffs’ assertions, such preclusion does not create a “venue gap” since the Plaintiffs are provided an adequate forum in the Court of Claims. Thus, this situation is not analogous to the cases cited by Defendant which allowed non-resident aliens to bring suit in any federal district on the grounds that otherwise those plaintiffs would be completely deprived of a forum. See, Malajalian v. United States, 504 F.2d 842, 844 (1st Cir.1974).

For the foregoing reasons, the Court finds venue to be improper in this district. Improper venue, however, does not require this Court to dismiss the case. Title 28, section 1406(a) of the United States Code provides: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” (emphasis added.) The Defendant argues that transfer to the Claims Court would be improper since it is not a “district or division within the meaning of 1406(a).” Defendant’s argument is contrary to a recent Third Circuit decision which explicitly states that under 28 U.S.C. § 1406(a) a district court may transfer a case to the Claims Court “if it be in the interest of justice.” Hondros v. United States Civil Service Com’n, 720 F.2d 278, 299 (3d Cir.1983). In Hondros, the court stated that it is impossible to “conclude ... that Congress intended to handcuff the federal courts by prohibiting them from transferring a case improperly filed in the district courts to the Claims Court when the interests of justice so require.” Id. at 299 n. 41.

In the present situation, the Defendant has not advanced, and the Court cannot foresee, any prejudice to the parties if this action is transferred to the Court of Claims rather than dismissed. Indeed, given the time that has expired since this action was instituted and the discovery which has been completed, it is in the interests of both the parties and the Court for this case to be transferred to the Court of Claims. The Government’s motion to dismiss is denied.

      . The statute states in pertinent part:
      § 1402. United States as Defendant

      (a) Any civil action in a district court against the United States under subsection (a) of section 1346 of this title may be prosecuted only:

        (1) Except as provided in paragraph (2), in the judicial district where the plaintiff resides;
      (2) In the case of a civil action ... by a corporation____


author: OWENS, Chief Judge.

text:
    Julie GRIMES, Muriel Pritchett and Deborah Dance, Plaintiffs, v. ATHENS NEWSPAPER, INC., Defendant.
    Civ. A. No. 83-127-ATH.
    United States District Court, M.D. Georgia, Athens Division.
    March 21, 1985.
    David R. Sweat, Jeanne M.L. Player, Athens, Ga., for plaintiffs.
    John E. Donovan, Donald B. Harden, Atlanta, Ga., for defendant.
   ORDER

OWENS, Chief Judge.

Plaintiff copy editor employees of defendant Athens, Georgia newspaper sued the defendant pursuant to the Equal Pay Act, 29 U.S.C. § 206(d), to wit:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

contending that the defendant discriminated against them by paying them less than the defendant paid male sports reporters for equal work.

Defendant newspaper, a wholly owned subsidiary of Morris Communications Corporation, “stipulated that for purposes of this lawsuit the work of the sports reporters and the copy editors may be considered equal ... [and] also waived the merit, seniority and.other defenses available to it under the' Equal Pay Act ... [Defendant also] stipulated that a three-year statute of limitations may be applied, and that any back pay found owing to plaintiffs may be doubled.” (Defendants Post-Trial Brief p. 3). Having done so the parties submitted the issue of damages to the court to be decided non-jury from the exhibits and evidence presented during a November 28, 1984, hearing, as well as the entire file and the oral and written contentions of the attorneys for the parties.

Plaintiffs and defendants urge the court if at all possible to utilize the individualized or comparator approach set forth in EEOC v. Liggett & Myers, Inc., 690 F.2d 1072 (4th Cir.1982). There the Fourth Circuit Court of Appeals stated at page 1076:

With respect to individualized back pay awards, there is no indication that the district court even considered their possibility. EEOC argues that the possibility was ruled out by the district court’s findings that consideration by the company of legitimate factors could not explain the spreread between female salaries and male salaries. For individualized back pay awards to be feasible, however, it is only necessary that consideration by the company of legitimate factors tends to explain the spread among various male salaries. Proof that female workers were paid less than male workers doing comparable work, even though the female workers had more education and seniority, simply does not establish that individualized back pay awards are not feasible. It is true that EEOC has cited examples where even the spread among various male salaries does not seem explainable on the basis of education or seniority, but the district court also gave examples where it does. More importantly, counsel for EEOC conceded at oral argument that for many of the twenty-two injured female employees, a male employee doing comparable work and possessing comparable seniority and education could be identified. Where that can be done and where as here we are dealing with only twenty-two injured employees, we conclude that the female employee should be awarded the difference between what she was paid and what the comparable male employee was paid.
We, of course, do not rule that individualized back pay awards are required in all cases or for all employees. In many situations, a district court may properly conclude that the approach would be unworkable — to name a few, where the number of affected employees is so large as to render individualized back pay awards unduly burdensome on the judicial process, where there is an absence of comparables, etc. Given the facts in the present case, however, we think that the case must be remanded so that the district court may fully consider the possibility of applying an individualized approach. While the approach may prove unworkable, for the injured female employees in the smaller departments, we are included to think that the approach will prove workable for the bulk of the injured female employees.
In those instances, if any, where the individualized approach is shown not to be feasible, it will be necessary for the district court to choose between using the highest male salary or the average male salary as- the basis for comparison____(emphasis added).

Impressed by and concerned over both plaintiffs and defendant suggesting application of the individualized or comparator approach, the court has carefully considered the entire record and, having done so, regrettably concludes that the individual or comparator approach is not feasible because:

(a) The defendant, in general, and defendant’s hiring official, in particular, offer nothing other than the defendant’s operating budget to objectively explain the spread among the salaries of male sports writers.

(2) The only discernible basis for paying males the varying amounts they were paid seems to be the subjective judgment of defendant’s hiring official and the willingness of the male employee to accept the amount offered.

(3) The spread among male workers does not seem explainable on the basis of education, experience or seniority.

For the individualized, comparator approach to be feasible — to be usable, there must be some apparent rational basis for the spread among male employees. That is totally lacking in this case. The individualized or comparator approach having been found not to be feasible, the Fourth Circuit suggests it is “necessary ... to choose between using the highest male salary or the average male salary as the basis for comparison.”

In making a choice, it is appropriate to bear in mind that the focus of the Equal Pay Act is on the job rather than on what skill the employee performing the job has. The act prohibits any wage differential between the sexes for performance of equal jobs, no matter how much — small or large — that differential may be. “Any difference in the wages paid to the respective sexes is prohibited by the Act unless justified under one of the statutory exceptions.” Hodgson v. American Bank of Commerce, 447 F.2d 416, 420 (5th Cir.1971)(emphasis added). And, of course, here the defendant has stipulated that these wage differences between men and women are not justified by any statutory exception. Therefore, any difference between the wages paid to the plaintiff females and the male sports writers is prohibited by the Act. That being the purpose of the Act, this court chooses to compare each plaintiff’s wages to the highest male salary being paid for the job at the time of performance. To do otherwise would be to depart from the equal pay for equal job purpose of the Act.

While EEOC v. Liggett & Myers, Inc., supra, is more specific than the decisions of the Fifth and Eleventh Circuits, it’s application to this case is consistent with decisions of this circuit. As the Fifth Circuit Court of Appeals said in 1973:

While the mechanics of computing back pay are difficult and alternative figures might have been used by the trial court in fashioning a remedy, whatever difficulty of ascertainment exists was due to the discriminatory wage structure maintained by the defendant. In such cases, it suffices for the trial court to determine the amount of back wages ‘as a matter of just and reasonable inference.’ Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-688, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946). ‘Difficulty of ascertainment is no longer confused with right of recovery.’ Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721 at 725-726 (5th Cir.1961) and Hodgson v. Ricky Fashions, Inc., 434 F.2d 1261 at 1262-1263 (5th Cir., 1970). Since no single wage scale could be ascertained for women or men ..., and because the formula used by the trial court was reasonably calculated to compensate the discriminatees for their losses, we decline to require a more precise calculation in this case.

Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir.1973) (emphasis added).

Accordingly, the defendant is required by the Equal Pay Act to pay each plaintiff female during the time she was performing the job or duties of copy editor the same amount as was then being paid to the highest paid male sports writer. To the extent such amounts were not paid, the plaintiffs are entitled to damages as provided by law and the agreement of the parties.

The attorneys for the parties are invited to confer and present within fifteen days a proposed judgment setting forth the specific monetary amounts to be awarded plaintiffs pursuant to these findings. Presentation of the same, of course, will be without prejudice to the right of eách party to appeal this order at such time as a judgment has been entered.


author: MENTZ, District Judge.

text:
    UNITED STATES of America and Peter P. Hearty, Revenue Agent of the Internal Revenue Service v. Don S. LEWIS.
    Civ. A. No. 84-3587.
    United States District Court, E.D. Louisiana.
    March 22, 1985.

      Eneid A. Francis, Asst. U.S. Atty., New Orleans, La., for petitioner.
    Steven I. Klein, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for respondent.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

MENTZ, District Judge.

FINDINGS OF FACT

I.

This litigation involves a petition to enforce a summons issued by the Internal Revenue Service (“IRS” or “service”) on June 12, 1984. The summons ordered Mr. Don Lewis to appear before Revenue Agent Hearty on June 28, 1984 and to produce various papers and books relating to the income and allowable tax deductions for Don S. and Urilda T. Lewis for the taxable years 1981 and 1982. On June 28, 1984, Mr. Lewis appeared in response to the summons, but failed to produce any of the summoned material. Revenue Agent Hearty did not question Mr. Lewis and stated that if he had known Mr. Lewis would resist the summons he would not have required Mr. Lewis to appear.

II.

In early 1980, .Special Agent Daigle commenced a criminal tax investigation of Ted Lewis, Don Lewis’ brother. On August 18, 1980, Mr. Daigle ordered Don Lewis’ tax returns and turned them over to Revenue Agent Landry with instructions to analyze them for audit potential. Subsequent to the analysis, Revenue Agent Landry ordered an audit of Don Lewis’ returns. Special Agent Daigle stated that he summoned Don Lewis’ tax returns in order to see how Mr. Lewis handled his share of the Don and Ted Lewis partnership arrangement. Special Agent Daigle previously had been given all of the partnership records maintained by the partnership on March 28, 1980.

III.

Revenue Agent Landry admitted that Don Lewis’ tax returns were not necessary or relevant in analyzing Ted Lewis’ treatment of his income from the partnership.

IV.

Ted Lewis actively resisted any summons issued by the Internal Revenue Service resulting in protracted litigation and delay in completing the audit on his returns.

CONCLUSIONS OF LAW

I.

The respondent, Mr. Lewis, asserts that the IRS summons is illegal and therefore unenforceable. Respondent’s first argument is that the summons was issued to harass the Lewis family. The respondent asserts that Mr. Daigle was so frustrated with his inability “to get” Ted Lewis that he decided to get even with the Lewis family through a series of audits.

The Supreme Court in United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), set out the prerequisites to a valid summons: (1) The government must make a preliminary showing that the investigation is pursuant to a legitimate purpose; (2) the inquiry is relevant for that purpose; (3) the information is not already in the possession of the IRS; and (4) the requisite administrative steps required by the Internal Revenue Code have been followed. 379 U.S. at 57, 85 S.Ct. at 254. Examples of an improper purpose include harassing the taxpayer, or putting “pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the investigation”. 379 U.S. at 58, 85 S.Ct. at 255.

The preliminary showing of good faith and proper purpose may be made by the declaration of the agent who issued the summons. United States v. Southeast First National Bank of Miami Springs, 655 F.2d 661, 664 (5th Cir.1981). Once this preliminary showing is made, the burden shifts to the taxpayer to prove that the issuance of the summons was not made in good faith. United States v. LaSalle National Bank, 437 U.S. 298, 316, 98 S.Ct. 2357, 2367, 57 L.Ed.2d 221 (1978).

Revenue Agent Hearty has filed a declaration that the summons issued complies with the requirements outlined in Powell, therefore, a preliminary showing of good faith has been made. Southeast First National Bank, 655 F.2d at 664. The respondent now bears the burden, a heavy burden, of proving that the summons was issued for an improper purpose. LaSalle National Bank, 437 U.S. at 316, 98 S.Ct. at 2367.

In the case at bar, Revenue Agent Landry issued the summons. The respondent does not assert that Mr. Landry had any kind of improper motive or intent to harass the Lewis family. The respondent would impute Special Agent Daigle’s alleged improper motives to Mr. Landry based on the fact that Mr. Daigle gave Mr. Landry the respondent’s tax returns to evaluate for audit potential.

The Court rejects this argument. Although examination of the issuing agent’s notice may be necessary to evaluate good faith, it is not necessary to evaluate the motive of each agent who comes in contact with a particular taxpayer’s case. This “would unnecessarily frustrate the enforcement of the tax laws by restricting the use of the summons according to the motivation of a single agent”. LaSalle National Bank, 437 U.S. at 316, 98 S.Ct. at 2367. As Mr. Landry made an independent evaluation of the two returns in good faith, the respondent has not met his burden of proving that the summons was issued for an improper purpose.

II.

The respondent also asserts the IRS has violated the third prerequisite of the Powell case. Lewis suggests the information sought is already in the hands of the IRS. Powell, 379 U.S. at 57, 85 S.Ct. at 254. The Fifth Circuit has held that the “ ‘already possessed’ exception to the enforcement of Internal Revenue summons” shall be narrowly construed. United States v. Linsteadt, 724 F.2d 480, 483 (5th Cir.1984). It is a “prohibition of unnecessary summons rather than an absolute prohibition against the enforcement of any summons to the extent that it requests the production of information already in the possession of the IRS”. United States v. Davis, 636 F.2d 1028, 1037 (5th Cir.1981). The Davis court limited the “already possessed” rule to cases similar to United States v. Pritchard, 438 F.2d 969 (5th Cir.1971) “where a revenue agent had informally examined the taxpayer’s records at length and later sought to force their production without any explanation of why the opportunity for informal examination had been insufficient”. Davis, 636 F.2d at 1038.

The Court finds that the abuses present in Pritchard do not exist in the present case. Mr. Lewis has not proved that the summoned data is in the IRS’ possession. The issuance of third party summonses is not, by itself, proof that the summons has been complied with. Further, the Court finds that the “marginal burden of supplying the information which may already be in the IRS’ hands is small”. 636 F.2d at 1038. Therefore, the Court will enforce the summons.

III.

The respondent’s third argument is that the records requested by the IRS are privileged under the Fifth Amendment. The Fifth Amendment states in pertinent part that “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V.

It is well settled that “blanket assertions of privilege before a district court are usually unacceptable”. Davis, 636 F.2d at 1044 n. 20, citing, United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir.1974); United States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969). In order to validly raise the Fifth Amendment privilege the respondent must assert the defense with respect to each record. Roundtree, 420 F.2d at 852. Only then, will the District Court be able to evaluate whether the claim of privilege is justified. Id. Because Mr. Lewis has not pleaded the Fifth Amendment with respect to each specific document, he has not met his burden of showing that the documents are privileged.

IV.

Mr. Lewis raised an alternative constitutional impediment to enforcement of the summons. He argues that the summons does not conform to the Fourth Amendment prohibition of unreasonable searches or seizures in that the summoned documents are not described with reasonable certainty. The summons issued to the respondent provides in pertinent part:

2. All information which would be necessary to enable a representative of the Internal Revenue Service to properly determine total income earned or sources of funds received for the period January 1, 1981, through December 31, 1982.

The Court in United States v. Klir, 47 AFTR 2d 81-1399, (E.D.Tex.1979), aff'd by unpublished order, 644 F.2d 33 (5th Cir.1981), addressed the validity of a similar provision. The Court held that the second item listed in the summons, in effect, requested all relevant documents and therefore, the request was overbroad. Id. at 81-1400. The Court reasoned that because the respondents were forced to determine whether documents were relevant, it would be impossible to enforce the summons by a contempt proceeding. Id. Further, the IRS would not be able to establish that a document is relevant by simply requesting all relevant information. Id. Accordingly, this Court holds that the second section of the summons is unenforceable in that it does not describe the documents summoned with reasonable certainty.

V.

The respondent’s last argument is that the IRS has waived its right to enforce the summons. On June 28,1984 Mr. Lewis appeared before Revenue Agent Hearty, but through his counsel stated that he would not comply with the summons because it was not issued for a proper purpose and because it violated Mr. Lewis’ rights under the Fourth, Fifth, Sixth, Ninth and Tenth Amendments of the United States Constitution. Mr. Hearty then stated that he would not have required Mr. Lewis to appear had he known Mr. Lewis would resist the summons. Mr. Lewis asserts that this statement constitutes a waiver citing United States v. Malnik, 489 F.2d 682 (5th Cir.1974).

Malnik involved a situation where the IRS and the taxpayer agreed that taxpayer would not appear, then seven months later, the IRS asked the District Court to compel him to comply with the summons. Id. at 688. The Court held that, “based solely on the government’s agreement that Malnik need not comply with the summons,” the IRS had waived its right to enforce the summons. Id. In the present case, there has been no such agreement. Therefore, Mr. Hearty’s statement does not constitute a waiver of the IRS summons.

For these reasons, the Court concludes that the first and third parts of the summons shall be enforced. Section two shall not be enforced because it violates the Fourth Amendment. Accordingly, IT IS SO ORDERED.