author: PETTINE, Senior District Judge.

text:
    UNITED STATES of America v. RHODE ISLAND DEPARTMENT OF EMPLOYMENT SECURITY, et al. Martha C. BARONE, et al. v. Mary C. HACKETT, Director of Rhode Island Department of Employment Security.
    Civ. A. Nos. 83-0541 P, 81-0090 P.
    United States District Court, D. Rhode Island.
    Sept. 6, 1985.

      Lincoln C. Almond, U.S. Atty., Providence, R.I., Burton Craige, Katherine A. Baldwin, U.S. Dept, of Justice, Washington, D.C., for plaintiffs in No. 83-0541.
    Ernest Barone, Providence, R.I., for plaintiffs in No. 81-0090.
    Donald Elbert, R.I. Atty. Gen.’s Dept., Charles H. McLaughlin, David Tammelleo, Providence, R.I., for defendants.
   OPINION AND ORDER

PETTINE, Senior District Judge.

On September 4, 1984, I entered judgment in these cases finding defendants liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k), for limiting the benefits available to women disabled by pregnancy to a fixed lump sum, rather than computing them in the usual manner provided for in the Rhode Island Temporary Disability Act, R.I.G.L. § 28-41-8. Barone v. Hackett, 602 F.Supp. 481 (D.R.I.1984). The background of this action, as well as the details of the state’s benefits program for women disabled by pregnancy during the relevant time period of April 29, 1979 to July 5, 1981, and the ways in which the program impermissibly treated pregnancy-related disabilities differently than other disabilities, are all set forth fully in that opinion.

Shortly after entry of that judgment, I entered an order setting forth the procedures to be followed in the remedial phase of this litigation. The order provided that an Agreed Statement of Facts would be submitted by the parties. The order also permitted all parties to submit, subject to defendants’ right to appeal the finding of liability, a proposed final decree, and permitted plaintiff Patricia DePalma to move to certify a class on the issue of relief. I had previously certified a class in this action, but had limited that certification, pursuant to Fed.R.Civ.P. 23(c)(4)(A), to the issue of liability. Barone v. Hackett, No. 81-0090-P (D.R.I. June 23, 1983) (hereafter, “Opinion and Order of June 23, 1983”). Having carefully reviewed the materials submitted on the issue of relief, I now conclude as follows:

1. Whether Back Pay Should Be Awarded Here

The United States Supreme Court has made clear that, once a party has been found liable under Title VII, “back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle v. Moody, 422 U.S. 405, 412, 95 S.Ct. 2362, 2369, 45 L.Ed.2d 280 (1975). Accordingly, although back pay is a discretionary remedy under Title VII, there is a “strong presumption,” in favor of its award, Arizona Governing Committee v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 3502, 77 L.Ed.2d 1236 (1983), which may be overcome only in “special circumstances,” id. 103 S.Ct. at 3503; City of Los Angeles v. Manhart, 435 U.S. 702, 718, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1980).

Here, I find an award of back pay (in the form of retroactive benefits) amply justified. Women who contributed their own wages to partially finance a state disability plan and were denied benefits that would have been owing to them, but for the defendants' decision to give disfavored treatment to disabilities due to pregnancy, will not be made whole absent such an award. I cannot accept defendants’ argument that the administrative costs of providing such relief, and the overall cost of retroactive benefits to the state’s Temporary Disability Insurance (“TDI”) fund, should bar an award here. Were state and local governments (to whom defendants are fairly analogized) who are found to have violated Title VII permitted to wrap themselves in the mantle of the public treasury, rather than to pay monies owing to the victims of their illegal conduct, Congress’ purpose in subjecting such parties to the strictures of Title VII, see 42 U.S.C. § 2000e(a); see generally Fitzpatrick v. Bitzer, 427 U.S. 445, 449, n. 2, 96 S.Ct. 2666, 2668, n. 2, 49 L.Ed.2d 614 (1976) (discussing 1972 amendment of Title VII to bring state employers within purview of Act), would be wholly thwarted. See Li-beries v. County of Cook, 709 F.2d 1122, 1135-36 (7th Cir.1983); Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 631-32 (5th Cir.1983). To be sure, there are limited circumstances in which the costs of back pay may militate against its award, but I can find no exception here to the general principle that the potential cost to the discriminating party is not a proper basis upon which to deny such relief.

2. Class Certification on the Issue of Relief

In my June 1983 opinion, I discussed at length why I found this case appropriate for certification, pursuant to Fed.R.Civ.P. 23(b)(2), on the issue of liability. Most of the reasons relied upon there are equally applicable to certification pursuant to Rule 23(b)(2), on the issue of relief, and I accordingly incorporate that opinion by reference herein.

In that opinion, I did decline at that time to certify the class, as represented by Patricia DePalma, on the issue of relief. I so declined because I was not certain then that the requirements of Fed.R.Civ.P. 23(a) could be satisfied where the amount of any monetary relief owing to class' members would vary among individuals, according to the length of their period of disability, and the amount of benefits to which they were entitled during the relevant time period under the standard statutory formula used for non-pregnancy-related disabilities.

I do not now find, however, that the fact of individual differences in back pay should bar certification on the issue of relief, nor bar class representation by De-Palma in particular. “In almost every class action, factual determinations like [those pertaining to the restitution due] individual class members must be made,” Samuel v. University of Pittsburgh, 538 F.2d 991, 995 (5th Cir.1976) (citations omitted), yet this fact alone cannot properly “prevent [] a court from aiding the class [certified on liability] to obtain its just restitution,” id. at 995 (footnote omitted). This is so because, where the class members have “suffered discrimination as a result of a uniform, centrally administered policy,” Resnick v. American Dental Ass’n, 90 F.R.D. 530, 539 (N.D.Ill.1981), the requirements of commonality, Fed.R.Civ.P. 23(a)(2) and typicality, Fed.R.Civ.P. 23(a)(3), are adequately met even without complete identity of damage sustained. See Newberg on Class Actions (Second Edition) (1985), § 10.-02, at 360; § 24.28, at 274-299; Cf. Berman v. Narragansett Racing Ass’n, 414 F.2d 311, 316 (1st Cir.1969), cert. den. 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681 (1970). To read Rule 23 to require complete identity would “unduly confine class actions to the narrowest circumstances.” Resnick v. American Dental Ass’n, supra, 90 F.R.D. at 539.

Likewise, the fact that the class representative may be entitled to back pay in an amount different from that owed other class members does not automatically destroy the adequacy of her representation, nor create any conflict among class members going to the “very subject matter of the litigation.” Lamphere v. Brown University, 71 F.R.D. 641, 650 (D.R.I.1976), app. dismissed 553 F.2d 714 (1st Cir.1977), (quoting 7 Wright & Miller, Federal Practice & Procedure, § 1768, at 639). Where as here, each class member may recover for her own reasonably ascertainable loss of benefits, the amount awarded to any single class member will neither diminish nor enhance the sum due any other class member. There simply is no risk of conflict where class members are entitled to recover only the sum personally lost — irrespective of total size of the class or the sum lost by any particular individual.

Accordingly, for these reasons, and the reasons set forth in my Opinion and Order of June 23, 1983, I hold that the class certified for liability may be likewise certified for relief.

3. How the Back Pay Should Be Computed

Because a finding of the defendant’s liability has been made, it is now incumbent upon individual class members to show that they lost benefits to which they were properly entitled by virtue of defendants’ use of the lump sum benefit during the period of their disability. See Teamsters v. United States, 431 U.S. 324, 361-62, 97 S.Ct. 1843, 1867-68, 52 L.Ed.2d 396 (1977). Any claimant who would have received additional benefits had the applicable general statutory formula been used, is entitled to recover the difference between what she received as a lump sum and what she would have received at the general rate.

Of course, any woman who suffered no loss as a result of the lump sum award, or who, because of the length of the period of her disability, actually recovered more through the lump sum than she would have under the general statutory formula, is not entitled to any relief in this action.

The requisite showing by each class member may be made based largely upon information currently in the defendants’ records. As the Agreed Statement of Facts reflects, the defendants possess, as to the approximately 9000 women who received pregnancy-related disability benefits during the relevant time period, information sufficient to establish: the rate of weekly benefits to which each claimant was entitled under the general statutory formula; the last day each woman worked before the onset of her disability; and the date on which her childbirth occurred. The only relevant piece of information not known to defendants is the length of the period of disability for each woman. This fact is missing because the defendants did not record the length of disability for pregnancy, as they did (and do) for all other disabilities — nor did they require physicians to certify the same, as they did (and do) for all other disabilities.

How should this critical link be established? In their proposed final decree, plaintiffs suggest two alternative approaches. First, plaintiffs propose to use as the period of each individual’s disability a time period equal to the mean length of disability of all claimants who received TDI benefits for a pregnancy-related disability in 1982 and 1983 (years in which the defendants did record the length of each claimant’s pregnancy disability). This mean period is equal to 6.95 weeks. Second, plaintiffs propose to require the defendants to attempt to ascertain from each claimant’s physician the estimated period of disability, using the same procedures employed by defendants during the relevant time period for all other disabilities. If, under this approach, defendants could not acquire the needed information for a claimant, her benefits would be computed by utilizing the mean length of disability described above.

In the final decree, I have adopted a version of the second alternative. Conceding that “unrealistic exactitude is not required” in fashioning individual relief for classwide discrimination, Stewart v. General Motors Corp., 542 F.2d 445, 452 (7th Cir.1976), cert. den. 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977), and that “ambiguities ... should be resolved against the discriminating employer,” id. at 452, it is nonetheless axiomatic that “where possible an individualized remedy should be utilized because it will best compensate victims of discrimination without unfairly penalizing the employer,” id. at 453. While classwide calculations, involving averaging, use of comparability statistics or other approximations, are surely required in some employment discrimination cases in order to provide relief, e.g. Stewart v. General Motors Co., supra, 542 F.2d at 452, they should not be employed where unnecessary because their use may well “generate a windfall for some employees ... and undercompensate the genuine victims of discrimination by forcing them to share the award with their undeserving brethren,” id. at 452-53.

Here, the sole impediment to individualized relief is an administrative financial one. It is true that defendants will be required to expend additional funds to contact physicians, and that such efforts may be unavailing in some cases, as where the physician cannot be located or is without the relevant information. But I do not believe that this burden alone is the kind of burden that should ban the use of an individualized approach. This is not a scenario where the prospect of making individual awards to class members will inevitably enmesh the court and the parties in a “quagmire of hypothetical judgments,” Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir.1974), cert. den. 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979), as to which class members were unfairly denied a promotion, or not hired in the first instance, in years past. Rather, the amounts involved here are fixed and reasonably ascertainable. Indeed, defendants themselves, while arguing that no back pay at all should be awarded here, take particular exception to any method that depends primarily upon averaging because they believe such an approach is inherently “arbitrary.”

Accordingly, pursuant to the procedures set forth in the final decree, reasonable measures should be undertaken by defendants to acquire the needed information from the physicians identified on each individual’s TDI-1 form. If those efforts are unavailing, the defendants should use the mean disability period for 1982 and 1983 (i.e., 6.95 weeks), subject, however, to the right of any woman to establish that her disability period was longer and the right of the defendants to establish that the period was shorter, and/or to rebut any class member’s claim that the period was longer. Such a procedure will appropriately direct relief to the true victims and is not, in my judgment, based on the facts in the record before me, unduly burdensome or costly to defendants.

Finally, plaintiffs request an award of prejudgment interest. Whether to add such interest to a back pay award is in my discretion as the fact-finder. Earnhardt v. Commonwealth of Puerto Rico, 744 F.2d 1, 3 (1st Cir.1984). Because the amount of each class member’s lost benefits is a reasonably ascertainable, fixed sum, see Robinson v. Watts Detective Agency, Inc., 685 F.2d 729 (1st Cir.1982), cert. den. 459 U.S. 1204, 103 S.Ct. 1191, 75 L.Ed.2d 436 (1983), the use value of which the defendants have had and the class members have been denied for up to six years, I find that an interest award is necessary in this case to effectuate fully the make whole remedy envisioned by Congress in Title VII, Albemarle Paper Co. v. Moody, supra. See, e.g., Whiting v. Jackson State University, 616 F.2d 116, 120, 127, n. 8 (5th Cir.1980) (awarding prejudgment interest on back pay against state governmental employer); Howard v. Ward County, 418 F.Supp. 494 (D.N.D.1976) (awarding prejudgment interest against local governmental employer); E.E.O.C. v. Wooster Brush Co., 727 F.2d 566, 578-79 (6th Cir.1984) (pregnancy discrimination); Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 263; Chastang v. Flynn & Emrich Co., 381 F.Supp. 1348, 1352 (D.Md.1974), affd 541 F.2d 1040 (4th Cir. 1976). As set forth in the final decree, the rate of interest shall be the adjusted prime rates used by the Internal Revenue Service during the relevant time period. See Davis v. Const. Materials, et al., 558 F.Supp. 697 (N.D.Ala.), aff'd, 720 F.2d 1293 (11th Cir. 1983); E.E.O.C. v. Wooster Brush, 523 F.Supp. 1256, 1268 (N.D.Ohio 1981), aff'd 727 F.2d 566 (6th Cir.1984).

Based upon the judgment of liability previously entered in this case, and all of the foregoing findings, it is hereby ORDERED, ADJUDGED, AND DECREED:

Monetary Relief

1. Rhode Island will compensate individuals who were disabled due to pregnancy, childbirth and related medical conditions during the period from April 29, 1979, until August 1, 1981, and who are entitled to relief under the procedures set forth in paragraphs 2 through 9 of this Decree.

2. Within four months of the date of entry of this Decree Rhode Island will identify from its files all women who received a lump sum maternity benefit pursuant to R.I.G.L. 28-41-8, for any period of pregnancy-related disability from April 29, 1979 (including April 29, 1979), until August 1, 1981.

3. Within four months of the date of entry of this decree, Rhode Island will also identify from its files any of the women identified pursuant to paragraph 2 who were subsequently denied waiting period credit for a second period of unemployment due to sickness in the same benefit year, pursuant to R.I.G.L. 28-41-8(2).

4. Rhode Island will then recompute the benefits due to each woman identified pursuant to paragraph 2 by using the statutory formula prescribed for all persons entitled to benefits for non-maternity reasons, pursuant to chapters 39 through 41 of title 28 of R.I.G.L. In recomputing these benefits, Rhode Island will apply the statutory formula that was in force at the time the applicant was unemployed due to pregnancy-related disability.

5. In recomputing benefits pursuant to paragraph 4, Rhode Island shall:

(a) ascertain the name and address of the attending physician from every TDI-1 claim form filed for a pregnancy-related disability during the period from April 29, 1979, until August 1,1981 for which a lump sum payment was made;

(b) within sixty (60) days of entry of this decree, send to each physician identified pursuant to subparagraph 5(a) the letter contained in Appendix AA-1 hereto together with a “TDI-3” form, a copy of which is contained in Appendix AA-2 hereto. In the lower left hand corner of each envelope shall prominently appear the notation “Please Forward — Address Correction Requested”;

(c) if within thirty (30) days of mailing the letter and TDI-3 form to each woman’s attending physician as set forth in subpara-graph 5(b), a completed TDI-3 form is not received for a woman, copy of the letter set forth in Appendix AA-1 together with a second TDI-3 form shall be sent to the woman’s attending physician;

(d) if, within thirty days of mailing a copy of the letter and second TDI-3 form pursuant to subparagraph 5(c), a completed TDI-3 form is not received for a woman, the Medical Claims Examiner shall attempt to make telephone contact with the attending physician to request return of a completed TDI-3 form and if the physician indicates that he/she has not received the letter set forth in Appendix AA-1 or a TDI-3 form, another copy of each shall be sent immediately;

(e) upon receipt of a completed TDI-3 form for a woman, Rhode Island will recompute her benefits pursuant to paragraph 4 using for that purpose the time period during which her attending physician has estimated that she was disabled from work; and

(f) if, for any reason, no completed TDI-3 form is received for a woman within 120 days of the date of the entry of the decree estimating the period during which she was disabled by work, the State shall tentatively recompute her benefits pursuant to paragraph 4 using for that purpose a time period equal to the mean length of disability of all claimants who received benefits from Rhode Island for unemployment due to pregnancy, childbirth or a related medical condition during 1982 and 1983. Pursuant to the procedures set forth in Paragraph 11, however, any woman shall have the opportunity to establish by appropriate means that her period of disability was longer than the mean period, and Rhode Island shall likewise have the opportunity to establish by appropriate means that the period of disability was shorter than the mean period, and/or to rebut by appropriate means any claim made by a woman that her period of disability exceeded in length the mean period.

6. After recomputing the benefits as set forth in paragraphs 4 and 5, Rhode Island will subtract from the total arrived at for each woman an amount equal to the lump sum payment she actually received for that period of disability.

7. Rhode Island will then add to the resulting total for each woman an amount equal to the interest on that total, to be computed from the date the lump sum amount was paid to the woman until the notice is mailed to each woman, pursuant to paragraphs 10 and 14. The interest rate shall be the adjusted prime interest rate as it is utilized by the Internal Revenue Service pursuant to 26 U.S.C. 6621, for the effective period of each rate used by the Internal Revenue Service since April 29, 1979.

8. Rhode Island will recompute the benefits for the second period of unemployment due to sickness for each woman identified pursuant to paragraph 3 by granting such women the appropriate waiting period credit employees disabled for other reasons would have received. Any additional amount of money which each such woman is entitled to as a result of the new computation will also be credited with interest earnings, computed by the same rate and method set forth in paragraph 7.

9. The amount arrived at pursuant to paragraph 7 shall be added to the amount computed pursuant to paragraph 8, if any, for one total for each woman identified in response to paragraph 2.

10. Rhode Island shall be responsible for withholding all applicable federal and state income taxes from the award to each woman.

11. Within thirty (30) days of receipt of the completed TDI-3 form from the woman’s attending physician, Rhode Island will mail by certified mail, return receipt requested, the letter, release and questionnaire for supplemental claims set forth in Appendices BB-1, BB-2, and BB-3, respectively, to this decree, to each woman identified in response to paragraph 2 regardless of whether the woman is entitled to additional benefits according to the State’s calculations. They shall be sent to the most recent address for the woman possessed by Rhode Island and on the envelope “Address Correction Requested — Please Forward” shall be prominently noted in the upper left hand corner, directly below the return address.

12. Within two weeks of receipt of a woman’s signed executory release, Rhode Island will mail the appropriate check to the woman.

13. Within thirty days (30) of receipt of a completed questionnaire for supplemental claims (Appendix BB-3) in support of dependency benefits, the appropriate Rhode Island employees will examine the documentation, determine if it supports payment of dependency benefits and, if so, recompute the appropriate benefits and the interest thereon consistent with paragraph 7. Within two additional weeks, Rhode Island will notify each woman of the results of its determination, send a new release form (Appendix BB-2) and forward the appropriate check to her upon receipt of the completed release. The notice to be used by Rhode Island for this purpose is contained in Appendix C.

14. The appeal procedure utilized pursuant to paragraph 13 will include the following steps:

(a) the woman will sign a statement that she appeals the decision and forward it to Rhode Island. An appeal statement form (Appendix D), will be included with the letter (Appendix C) sent to her pursuant to paragraph 13.

(b) within twenty days of receipt of the appeal, Rhode Island will notify both the attorneys for the Justice Department, and the Barone plaintiffs. Attorneys for the plaintiffs and an attorney for defendants will review the individual file of each woman who appeals and attempt to reach a joint resolution of the matter.

(c) if the Justice Department, the private plaintiffs, and Rhode Island agree on the result, that result will constitute the final decision on the matter.

(d) if the Justice Department, the private plaintiffs, and Rhode Island are unable to agree upon a result within ninety days of Rhode Island’s receipt of the initial notice of appeal from the woman, the matter will be submitted to the United States District Court for Rhode Island for a hearing and determination in accordance with Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. 2000e et seq.

(e) within two weeks after final resolution of each appeal, Rhode Island will notify the woman of the results of the appeal, including, where appropriate, a recomputation of the benefit and the interest thereon; send a new release form to her; and forward the appropriate check to her upon receipt of the completed release.

15. Rhode Island will take the following steps with regard to all women who have not responded in any way to the notice mailed pursuant to paragraph 11:

(a) within forty-five days after the original letter was mailed pursuant to paragraph 11, a follow-up letter will be sent by certified mail, return receipt requested, to each such woman, asking her to respond and noting that she will lose money by not doing so; a copy of the original letter will also be enclosed;

(b) if, forty-five days after the second mailing, more than twenty-five women have not responded, Rhode Island will publish prominent notices for three consecutive days in the front sections of the Providence Journal-Bulletin, the Woonsocket Call, and the Newport Daily News stating that the individually named women are entitled to receive money from Rhode Island, and can do so by contacting a named Rhode Island official, with a given address and phone number. The notice will also solicit information on the location of such women from anyone who might know where they are;

(c) this notice will be republished forty-five days later for three consecutive days in the same manner in the same media, if there are still more than twenty-five women who have not responded or have not been located;

(d) Rhode Island will compile a list of all women who have failed to respond within thirty days of the publication of the last newspaper notice. The list will include, for each woman, all information in Department of Employment Security files which could assist in locating the individual, including all home addresses and telephone numbers, and names and addresses of all employers and dates of employment. The list will be forwarded immediately to the Assistant Attorney General for the Civil Rights Division, United States Department of Justice, Washington, D.C. 20530, to the attention of Chief, Employment Litigation Section. Within one hundred and twenty days of receipt of the list, the Department of Justice will send Rhode Island current addresses of women it has been able to locate; and

(e) for all women located pursuant to subparagraphs (b), (c) and (d), supra, the procedure set forth in paragraph 11 shall be followed within two weeks of Rhode Island’s receipt of addresses from the Department of Justice.

RECORDING AND REPORTING REQUIREMENTS

16. Rhode Island agrees to maintain for the duration of this Decree all records concerning the implementation of this Decree, including but not limited to all records relating to those women who received lump sum maternity benefits covering any period of time since April 29, 1979 (and including April 29, 1979). Upon reasonable notice, these records shall be made available to the United States for inspection and copying.

17. Rhode Island agrees to furnish the Assistant Attorney General for the Civil Rights Division, United States Department of of Justice, Washington, D.C. 20530, to the attention of Chief, Employment Litigation Section, semi-annual reports detailing Rhode Island’s actions in complying with the undertakings required by this Decree. The first such report shall be submitted six (6) months after the date of entry of this Decree, and subsequent reports shall be submitted semi-annually thereafter until Rhode Island is able to submit a final report pursuant to paragraphs 19 and 20. The first report shall include the following:

(a) an alphabetical list of the names and addresses of all women identified pursuant to paragraph 2, and the amount of money originally paid to each as a lump sum maternity benefit;

(b) an alphabetical list of the names and addresses of all women identified pursuant to paragraph 3, and the amount of money excluded from their disability benefits because of the failure to grant waiting period credit, pursuant to R.I.G.L. 28-41-8(2).

(c) the period used for recomputing benefits pursuant to paragraph 5(f) for women for whom no completed TDI-3 form was received by DES, including summary statistics which clearly demonstrate how Rhode Island arrived at that figure.

(d) the total amount of money due each woman set forth in subparagraph 17(a) and 17(b), calculated pursuant to paragraphs 4 through 9. In addition, the calculations used to arrive at this total shall be set forth for each woman.

(e) an alphabetical list stating the name of each woman for whom no completed TDI-3 form was received by DES within 120 days of entry of the decree.

(f) an alphabetical list of the names of all women who have returned the signed release form and received the amount of money calculated as due to them, the date the release was received, and the date monetary payment was made.

(g) an alphabetical list of the names of all women who have requested more money under paragraph 12, indicating for each woman: the amount of the request for each such woman; the date of the request; Rhode Island’s determination as to the amount due each such woman, if it has been determined, and the basis for that determination; the date of the determination; whether each such woman has returned the signed release form and received the money due to her; and dates of receipt of the release and of payment of the monetary benefit.

(h) an alphabetical list of the names of all woman who have appealed pursuant to paragraph 13, the results of the appeal if finally decided, whether each woman for whom a final appeal has been decided has returned the signed release form and received the money due to her, and the dates of receipt of the release and of payment of the monetary benefit.

(i) an alphabetical list of names of all women who have not responded to the letter sent to them or who have not yet been sent a check, with the reason the check has not been sent.

(j) copies of all newspaper notices published pursuant to subparagraphs 14(b) and 14(c).

18. The semi-annual reports submitted after the first such report shall set forth the information detailed in paragraph 16 above, including the information in subpar-agraphs 16(e), (f), (g), (h), and (i) as to all women identified in subparagraphs 16(g), (h), and (i) in the immediately preceding report.

19. Rhode Island will continue to submit semi-annual reports until it can certify in a final report with regard to all women who were identified pursuant to paragraphs 2 and 3, that:

(a) those women who have signed release forms have each received a check in the appropriate amount as determined under .the procedures of this Decree;

(b) Rhode Island followed all steps outlined in paragraph 14 as to all those women who failed to respond to the original notice;

(c) the appeals have been finally decided of all women who elected to appeal pursuant to paragraphs 12 and 13, and all such women who decided after the final appeal decision to sign the release form have received a check in the amount determined on appeal to be appropriate.

20. The final report will also contain statistics indicating the total number of women who:

(a) have signed the release forms and received their checks;

(b) have been contacted but did not sign a release form; and

(c) could not be located.

ATTORNEY’S FEES

21. Counsel for the private plaintiffs shall, within thirty days of entry of this Decree, make application for costs and attorney’s fees incurred to date. The United States shall, within the same period of time, make application for costs incurred to date. Application for attorney’s fees and costs incurred subsequent to entry of the Decree shall be made every three months until dissolution of the Decree.

EFFECT OF COMPLIANCE

22. Insofar as any of the provisions of this Decree or any actions taken pursuant to such provisions may be inconsistent with any state or local statute, law, or regulation, the provisions of this Decree shall prevail in accordance with the constitutional supremacy of federal substantive and remedial law. This Decree does not create any rights for any individuals under state or local law or regulation.

RETENTION OF JURISDICTION

23. The Court retains jurisdiction of this action for such further relief or other orders as may be appropriate. If either the United States or the private plaintiffs have reason to believe that Rhode Island may be in violation of this Decree, then that party shall give Rhode Island written notice of the violation. Rhode Island shall have thirty days after receipt of the written notice to investigate and correct or refute the alleged violation. If the parties do not reach agreement regarding the alleged violation by the end of the thirty (30) day period, the party who gave written notice of the alleged violation (i.e., the United States or private plaintiffs) may apply to the Court for appropriate relief.

24. This Decree shall be dissolved three (3) months after Rhode Island submits its final report under paragraphs 19 and 20, unless either the United States has or the private Plaintiffs have given Rhode Island notice of an alleged violation pursuant to paragraph 23 which has not been resolved, or either moves the Court for good cause shown to extend this Decree. Such motion shall be made upon forty-five days notice to all other parties.

Entered and Ordered this 6th day of September, 1985.

APPENDIX AA-1

Letter to Attending Physician

Dear Dr._:

The State of Rhode Island has been ordered by the United States District Court for the District of Rhode Island to recompute the benefits payable to women under the state-administered Temporary Disability Insurance program for pregnancy-related disabilities which they suffered during the period from April 29, 1979, through August 1, 1981.

The procedure established by the Court for recomputing such claims requires the State to obtain a completed TDI-3 form from the physician who attended each woman during the period of her pregnancy-related disability. ' Our records indicate that the following women were under your care for pregnancy-related disabilities during the relevant time period:

[first name of women and DOB of child]

The Court’s order requires that a TDI-3 form be completed for each of the above-named women and returned to the State within thirty days (30) of the date of this letter. A sufficient number of TDI-3 forms have been enclosed.

It is only necessary for you to: (1) complete items 1-5 and 17; and (2) sign and date a TDI-3 form for each of these women. In completing Item 17, please include any period of disability which preceded the date the pregnancy was terminated, as well as any period of disability from work subsequent to that date.

Sincerely,

Appropriate State Official

Enclosures

APPENDIX AA-2

APPENDIX BB-1

Letter to Each Woman

PLEASE READ THIS LETTER CAREFULLY. IT MAY AFFECT YOUR LEGAL RIGHTS.

Dear Ms.-:

The State of Rhode Island Department of Employment Security has been ordered by the United States District Court for the District of Rhode Island to recompute the temporary disability insurance benefits for all women who received lump sum maternity benefits for pregnancy-related disabilities from April 29, 1979, to August 1, 1981. Under the new computation, these women will be entitled to benefits for the period they were actually disabled by pregnancy, childbirth, and related medical conditions. Instead of a lump sum payment, their benefits will be calculated using the formula that was used for all other employees who were unemployed due to a sickness. In addition, any woman who had reduced benefits for a second illness in the same benefit year in which she received the lump sum maternity payment, because of failure to give her waiting period credit for the pregnancy-related disability, will recoup that reduction in her benefits. Finally, interest equal to the adjusted prime rate used by the United States Internal Revenue Service will be paid for any additional amounts which are due each woman under these new computations.

The Department of Employment Security’s records indicate that you gave birth to a child on [date from TDI-1 form]. In recomputing your benefits, the State [obtained certification from your physician that you were disabled by pregnancy during the period from_ to__OR attempted to obtain certification from your physician regarding the period during which you were physically disabled from work but was unable to do so and therefore assumed that you were disabled from working for a period of (add figure calculated pursuant to paragraph 5)_weeks. OR (in cases where the state believes, based on appropriate supporting materials, that a woman’s period of disability was shorter) ... was unable to do so but believes, based on its records, that you were disabled for a period of_weeks.] According to the State’s records you are due the following amount, OR are due no additional benefits, based on the following computations:

(Sample Figures — Substitute Actual Figures For Each Woman)

A. $1000.00 benefits under general formula

-$ 250.00 lump sum payment received

$ 750.00 difference due you

+ $ 141.07 interest on above amount

$ 891.07 total due you

B. $ 100.00 reduction in benefits due to failure to credit waiting period

$ 18.81 interest on above amount

$ 118.81 total due you

C. $891.07 total due you under A

$118.81 total due you under B

$1009.88 grand total due you

-$200.00 deductions for state and local taxes and Social Security (FICA)

$809.00 TOTAL OWED YOU

If you wish to receive your check for the above amount, please sign and return the enclosed “Release”, and a check will be mailed to you. If, however, the State was unable to obtain certification from your physician, and you believe you are entitled to a greater amount than that shown above because your actual period of disability was longer than_weeks, you must submit other documentation (e.g., work attendance records, hospital records, lab reports, etc.) to substantiate your claim.

You may also be entitled to additional compensation if, at the time of your pregnancy-related disability, you had children (other than the child to whom you had just given birth), including adopted and stepchildren, under the age of 18 years or over the age of 18 but incapable of earning wages because of mental or physical incapacity.

If you believe that you are entitled to additional compensation for either of the above reasons you must complete the attached “Questionnaire”. In order to be eligible to receive an amount larger that ['fill in “TOTAL OWED YOU”] the completed form and any additional required documentation must be submitted to the State within forty-five days of receipt of this letter. It should be mailed to [name and address of State official]. Please retain a copy of this documentation for your records.

The State will analyze your submission and determine whether you are entitled to a larger amount or to the amount set forth above. You will then be notified of the State’s final determination.

If you believe the State’s determination to be in error you will be allowed to file an appeal. Attorneys for the United States Department of Justice, the private plaintiff, and the State will then attempt to reach a joint resolution of each appeal. If they are unable to agree, the appeal will be submitted to the Court for resolution.

Sincerely, yours,

Appropriate State Official

APPENDIX BB-2

RELEASE

Upon receipt of the sum of a check for fsum spelled out] Dollars ($_), I, [full name of claimant], for myself and for my heirs, executors, administrators and assigns, will release and discharge the Rhode Island Department of Employment Security; Mary C. Hackett, Director of the Rhode Island Department of Employment Security; and the State of Rhode Island of and from all legal, equitable or administrative claims or causes of action arising out of alleged discrimination on the basis of sex in the payment of temporary disability insurance benefits for pregnancy-related disabilities from April 29, 1979 until August 1, 1981, by endorsing the check and presenting it for payment within thirty days of receipt. The check should be made payable to_[print your name] and mailed to the address shown below.

SIGNATURE

DATE

ADDRESS (Please Print)

APPENDIX BB-3

QUESTIONNAIRE

(Please Print Clearly)

NAME:

ADDRESS:

SOCIAL SECURITY NO.:

TELEPHONE: _(WORK)

_(HOME)

DATE OF BIRTH OF CHILD: _

[Enter date shown in attached letter unless it is incorrect]

I. PERIOD OF DISABILITY

Complete only if no certification was obtained from your physician as to the period you were physically disabled from work due to pregnancy and you were disabled for a period longer than stated in the letter:

A. DATES, IF ANY, THAT YOU MISSED WORK WHILE PREGNANT DUE TO A DISABILITY ASSOCIATED WITH YOUR PREGNANCY: _

B. DATES THAT YOU MISSED WORK FOLLOWING TERMINATION OF YOUR PREGNANCY DUE TO A DISABILITY ASSOCIATED WITH YOUR PREGNANCY: _

NOTE: if you believe your period of disability was longer than the period shown in the attached letter you must also submit documentation (e.g., work attendance records, hospital records, lab reports, etc.) to substantiate your claim.

II. DEPENDENCY BENEFITS

Complete the following questions only if you believe you may be entitled to such benefits:

A. How many children, including adopted and stepchildren, under 18 years of age and children 18 years of age or over incapable of earning any wages because of mental or physical incapacity were dependent on you during the time you were disabled by the pregnancy in question.

No. of such children_

B. At the time did anyone else contribute more than 50% of the support of these children? Yes_No_

C. Has any other person claimed these children as dependents under the R.I.Temporary Disability Insurance Act?

If “Yes” list name, address, and S.S.No. of person who claimed these children:

Address

Yes_No_

Name-

S.S. No__

D. Did all of these children live with you at the time you were disabled by the pregnancy in question? Yes-No-

If, “No”, list the name and address of the person with whom the children resided:

Name_

Address_

E. List dependents claimed below:

If child is 18 years of age or over indicate Date of Birth type of physical or men-Name of Child tal incapacity

I hereby claim dependents’ allowance for the above named children and I certify that the above contains a listing of the children who were dependent upon me at the time of the pregnancy-related disability in question. I understand that any false claim made by me is punishable by law.

Signature of Claimant

Date

APPENDIX C

Notification of Determination

Dear Ms._:

As you know, the State of Rhode Island has been ordered by the United States District Court for the District of Rhode Island to recompute the temporary disability insurance benefits due you for the pregnancy-related disability you suffered during the period from April 29,1979, to August 1, 1981. The letter previously sent to you contained State’s computation of the amount it believed to be owed to you. A copy of that letter is enclosed.

You subsequently submitted documentation which you assert entitles you to a larger amount. [The Department of Employment Security has determined that you are not entitled to an amount greater than the “net amount due you” set forth in the enclosed letter. The reason for this is (explain in detail), or Based on the documentation you submitted, the Department of Employment Security has determined that you are entitled to a larger amount of compensation. Our calculations are as follows: (use format contained on p. 2 of Appendix A).]

If you for any reason disagree with the net amount which we have determined to be due you, you may file an appeal by signing the enclosed “Appeal Statement” and forwarding it to the address indicated on the statement. The statement must be mailed within forty-five days of the date of this letter.

Upon receipt of your appeal statement, Rhode Island is required to contact the attorneys for the Department of Justice and the private plaintiff who will, together with the attorney for the State, review the documentation submitted by you and attempt to reach a joint resolution of the matter. If the attorneys are unable to agree the matter will be submitted to the United States District Court for resolution. Once a resolution is reached, you will be notified of the results of your appeal.

Sincerely,

Appropriate State Official

Enclosures

APPENDIX D

Appeal Statement

[Please Print Clearly]

NAME: _

ADDRESS: _

DAYTIME TELEPHONE NO--

The State of Rhode Island has notified me that it has determined that I am

entitled to: .........

I believe that the State’s computation is in error because

[ Please state in detail your reasons ]:

Date Signature

Return this form within forty-five days to:

[NAME AND ADDRESS OF APPROPRIATE STATE OFFICIAL]

      . On November 9, 1984, the parties filed an Agreed Statement of Facts that sets forth the principal facts relevant to the issue of relief. On January 28, 1985, the parties filed a Supplemental Agreed Statement of Facts, appended to which is a study performed by defendants that estimates the cost that would be involved in providing retroactive benefits to victims of the benefits program for pregnancy-related disabilities.

      . I have already discussed, in my opinion of September 4, 1984, and need not repeat here, the factors which I believe distinguish this case from City of Los Angeles v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) and Arizona Governing Committee v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983), in which retroactive relief was not awarded to victims of discriminatory pension plans. See Barone v. Hackett, supra, 602 F.Supp. at 484.

      . Defendants’ reliance on this Court's opinion in Bowen v. Hackett, No. 5038 (D.R.I. April 2, 1976) is misplaced. In Bowen, I declined to award damages to female disability claimants who were discriminated against in violation of the Equal Protection Clause of the Fourteenth Amendment. In that case, there was no statutory presumption in favor of back pay comparable to the one created by Title VII. The approach employed in that case is, therefore, not well suited to the Title VII context. Moreover, unlike in Bowen, the cost study submitted here by the defendants themselves, see Supplemental Agreed Statement of Facts, Appendix K, and the information in the Agreed Statement of Facts as to the assets currently available to the Fund, see Agreed Statement of Facts, [ff 13-16, indicate that the Fund is currently able to both remedy the effects of its past discrimination and to comfortably continue to pay benefits to current contributors.

      . The Agreed Statement of Facts at if 1, and the materials to which it refers, explain in detail the manner in which non-pregnancy disability benefits were calculated during the relevant time period. In substance, the calculation depended upon the period of disability certified by a physician; the claimant’s average weekly wages (a proportion of which was paid as benefits); any dependency benefits for children or incapacitated adults for which a claimant qualified; and the amount of any "waiting period” credits, up to a total of one week, previously earned in the same benefit year by a claimant.

      . As the final decree sets forth, this sum includes not only the additional weekly benefits which a woman would have received under the general formula, but any amount owing in dependency benefits and waiting period credit, as well.

      . In their response to plaintiffs’ proposed decree, defendants argue that, if I make an award of back pay, I should also order any claimants who may have been "overpaid" to return the amount of their "overpayment" to defendants. For two reasons, I reject this argument. First, a claim for recoupment should properly have been raised by way of a counterclaim under Fed.R.Civ.P. 13(a), yet none has ever been asserted here. Nor would I allow defendants to now add such a counterclaim, even if they sought to do so. We are now some four years into this litigation, and all of the information upon which any counterclaim for recoupment would be based has been fully available to defendants throughout the pendency of this Iitigation. See, e.g., Owens-Illinois, Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185 (3rd. Cir.1979). Second, even if a counterclaim for recoupment had been duly pleaded, it is doubtful that I would be within the proper scope of the remedial powers accorded courts in Title VII actions were I to use those powers to compel innocent parties to return funds paid to them as a result of an illegally discriminatory policy adopted by a public entity. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 416, 95 S.Ct. at 2371 (courts should exercise their remedial powers in light of Title VII’s broad objectives); cf. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 399, 102 S.Ct. 3141, 3154, 73 L.Ed.2d 835 (1982).


source: Caselaw Access Project

author: JENKINS, Chief Judge.

license: Public Domain

text:
    The SUPERIOR OIL COMPANY, a Nevada corporation, Plaintiff, v. Joseph MERRITT, and Evelyn Merritt, his wife; Jasper Merritt and Mrs. Jasper Merritt, his wife; Harrison Merritt and Annie Merritt, his wife; Gilbert Merritt; Anna Merritt; Marie Merritt; Marli Bellson; Rosina Merritt; Susie Myerson; First Doe; Second Doe; Third Doe; Fourth Doe; Fifth Doe; Sixth Doe; Seventh Doe; Eighth Doe; Ninth Doe; Tenth Doe; Defendants.
    C 84-0447J.
    United States District Court, D. Utah, C. Division.
    Sept. 16, 1985.

      Arthur H. Nielsen, Clark Nielsen and Thomas C. Jepperson, Nielsen & Senior, Salt Lake City, Utah, for plaintiff.
    Steven C. Boos, D.N.A. Peoples Legal Services, Inc., Mexican Hat, Utah, for defendants.
   MEMORANDUM OPINION

JENKINS, Chief Judge.

The court heard oral arguments on the defendants’ motion to dismiss the plaintiff’s amended complaint for lack of subject matter jurisdiction on January 29, 1985. Arthur H. Nielsen and Thomas Jepperson appeared for the plaintiff, and Steven Boos appeared for the defendants. Following oral arguments, the court took the matter under advisement. Having considered the arguments on both sides, the court now enters this memorandum opinion.

I. Background

On May 15, 1984, the plaintiff, Superior Oil Company, filed a complaint with this court seeking damages and injunctive relief. It alleged that it was the operator of certain oil and gas leases issued by the Navajo Tribe on land in San Juan County, Utah, and that the defendants had purposefully interfered with its operations under the leases. The defendants had allegedly fired a shotgun at Superior employees, prevented them from cleaning up an oil spill near one of the wells and prevented them from repairing a leak in a flow line by blocking their access to the line and threatening to harm both the employees and equipment. Superior asked for damages resulting from its involuntary shutdown of the wells and for an injunction preventing the defendants from interfering with its operations and right to possess the well sites under the leases. Superior alleged diversity as the sole basis for jurisdiction.

The defendants moved to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction over the action. They reasoned that, because the dispute arose on a reservation and a tribal forum was available to the plaintiff, it would infringe on tribal sovereignty for this court to take jurisdiction of the case by undermining the authority of tribal courts.

Superior responded by amending its complaint to allege as an alternative basis for jurisdiction 28 U.S.C. § 1331 (so-called federal question jurisdiction). Specifically, Superior alleged that its claim arose under the Indian Mineral Leasing Act of 1938, 25 U.S.C. §§ 396a-396d (1982); 25 C.F.R. §§ 211.19-21 (operating regulations for tribal leases); 43 C.F.R. subpt. 3162 (requirements for lessees and operators of Indian oil and gas leases); and article I of the 1868 treaty between the United States and the Navajo Tribe, 15 Stat. 667. But Superior’s factual allegations remained essentially the same. The only additional allegations were that Superior carried on its operations pursuant to the cited federal regulations and that the defendants’ conduct violated the cited federal laws. The defendants moved to dismiss this amended complaint for lack of subject matter jurisdiction as well.

“Although the federal government has long had a special relation to the American Indian, there is no jurisdiction in the federal courts to hear a case merely because an Indian ... is a party to it. A statutory grant of jurisdiction must be found.” C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3579 at 255 (2d ed. 1984). The only statutory grounds for jurisdiction that Superior has asserted are 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1332 (diversity jurisdiction). After considering the parties’ arguments, the court concludes' that neither section gives it subject matter jurisdiction over this dispute. Consequently, the plaintiff’s complaint must be dismissed.

II. Federal Question Jurisdiction

A federal district court has original jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (1982). An action does not “arise under” federal law “merely because it may have its origin or source in federal law. The asserted right must depend upon the operative effect of federal law, i.e., the result of the suit must depend upon the construction and effect of such law.” Midwestern Devs., Inc. v. City of Tulsa, 333 F.2d 1009, 1011 (10th Cir.1964), cert. denied, 379 U.S. 989, 85 S.Ct. 702,13 L.Ed.2d 610 (1965). In other words, the plaintiff’s claim must “necessarily [draw] into question the interpretation or application of federal law.” New York v. White, 528 F.2d 336, 338 (2d Cir.1975).

Superior asserts three possible bases for federal question jurisdiction. First, it asserts that, because oil and gas leases of Indian lands are governed by federal law, see, e.g., Bledsoe v. United States, 349 F.2d 605, 607 (10th Cir.1965), its right to possess its leasehold interests, which it seeks to protect in this action, raises a federal question, citing Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (Oneida I).

Superior’s reliance on Oneida I is misplaced. Oneida I involved an Indian tribe’s claim for wrongful possession. The Oneidas’ asserted right to possession was based in part on “their aboriginal right of occupancy which was not terminable except by act of the United States” and was guaranteed by treaties with the United States. 414 U.S. at 677-78, 94 S.Ct. at 782-83. The Court held that the tribe’s complaint raised a federal question.

Superior is not an Indian tribe and is not seeking to enforce “aboriginal” land rights. Rather, Superior’s right of possession is based on its lease agreements with the Navajos and is protected by local — not federal — law. “Where tribal possessory rights are not involved, the courts have refused to extend the rationale of Oneida to hold that a federal question is present.” Begay v. Kerr-McGee Cory., 499 F.Supp. 1317, 1322 (D.Ariz.1980), aff'd, 682 F.2d 1311 (9th Cir.1982). Oneida I is therefore inapplicable to Superior’s claim.

Superior has tried to bring its claim within Oneida I by calling it a “suit for possession.” In doing so, however, it has mischaracterized its claim. Despite the label, Superior’s claim remains essentially a garden-variety tort action — a suit for intentional interference with a contractual relation. To bring a case within federal question jurisdiction, “a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.” Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). The right Superior seeks to establish is the right to be free from unreasonable interference with its rights and duties under its leases and unit agreements with the Navajo tribe. Superi- or can establish a prima facie case by showing that the defendant intentionally interfered with its existing contractual relationship under those agreements. See W. Prosser, Handbook of the Law of Torts 942 (4th ed. 1971). The fact that authority for the Navajos to enter the agreements is ultimately derived from federal law does not turn Superior’s claim into a federal question. See Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 77 L.Ed. 903 (1933) (“The federal nature of the right to be established is decisive — not the source of the authority to establish it”).

In short, plaintiff’s complaint does not involve the validity or construction of federal law. Neither are the validity and construction of the leases in issue. The lessor — the Navajo tribe — is not even a party to this action. The defendants may wish to challenge the validity of the leases as part of their defense, but merely because a complaint anticipates or replies to a probable defense that would be based on federal law does not mean it arises under federal law within the meaning of section 1331. Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1314 (9th Cir.1982). The court concludes that the mere fact that Superior’s leases are governed by federal law does not mean that Superior’s claim arises under federal law.

Second, Superior asserts that it has stated a cause of action under the Indian Mineral Leasing Act of 1938, 25 U.S.C. §§ 396a-396d (1982), citing Rainbow Resources, Inc. v. Calf Looking, 521 F.Supp. 682 (D.Mont.1981), as authority for its assertion. The plaintiff in that case, a non-Indian oil company, was the lessee under oil and gas leases with certain Blackfoot allottees of Indian trust land. It had completed a dry well and sought to remove its equipment from the leased premises. The lessor obtained an order from the tribal court restraining the oil company from removing any equipment, despite the fact that the company had applied for and subsequently received authorization to remove the equipment under 30 C.F.R. § 221.34. The district court found that it had federal question jurisdiction to issue an injunction restraining enforcement of the tribal court’s order. It found such authority implicit in the Indian Mineral Leasing Act, which provides that all “operations under any oil, gas or other mineral lease issued pursuant to the terms of any act affecting restricted Indian lands shall be subject to the rules and regulations promulgated by the Secretary of the Interior.” 25 U.S.C. § 396d.

The present case is easily distinguished. Although the plaintiff in both cases is a non-Indian lessee seeking injunctive relief, the plaintiff in Rainbow Resources was seeking to enjoin a tribal court that had issued an order arguably in conflict with federal regulations validly promulgated under authority of federal law. Superior, on the other hand, is not trying to establish its rights under federal law. It is only trying to protect its rights under its leases, by enjoining the defendants — who have nothing to do with the leases — from further tortious conduct. Congress may have intended for lessees of lands covered by the Indian Mineral Leasing Act to have a federal cause of action for injunctive relief when the official actions of a tribal court conflicted with federal regulations promulgated under that act, as the court in Rainbow Resources found. But there is no indication that Congress intended for lessees to have a similar cause of action where the plaintiff is not seeking to establish his rights under the lease but is merely seeking to prevent a stranger to the lease from interfering with those rights. This court concludes that Congress did not intend to create such a remedy in the Indian Mineral Leasing Act. Such a remedy was already available to lessees under local law.

The final basis for federal question jurisdiction that Superior has asserted is article I of the Navajo Treaty of 1868, 15 Stat. 667, which provides that Indians who have committed “a wrong or depredation” against anyone subject to the authority of the United States shall be delivered up to the United States “to be tried and punished according to its laws____”

Because persons can be “punished” only in criminal proceedings, the plain language of the treaty confers jurisdiction on federal courts only in criminal matters. To find that the treaty gives federal courts civil jurisdiction would run counter to established rules of construction to the effect that treaties with Indian nations are to be strictly construed in favor of the Indians and against the United States. See, e.g., McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973). Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587 (9th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1707, 80 L.Ed.2d 180 (1984), cited by Superior, is not to the contrary. There the Ninth Circuit concluded that, far from conferring civil jurisdiction on United States courts, the treaties with the Navajos establish Navajo lands “as within the exclusive sovereignty of the Tribe under general federal supervision.” 710 F.2d at 597. Although the Ninth Circuit agreed with the district court’s conclusion that it had concurrent civil jurisdiction with the tribe, a finding of jurisdiction in the district court was not necessary to that decision, since the issue in Babbitt was whether the tribe— not the district court — had jurisdiction. Moreover, the basis for the district court’s jurisdiction was not the 1868 treaty itself but the existence of an independent federal question, namely, the extent to which the treaty and other federal law had divested the tribe of jurisdiction over non-Indians conducting business on the reservation. See id. at 591. Superior is not contending that the treaty has divested the tribal court of jurisdiction in this matter. Rather, it contends that the treaty gives this court jurisdiction over the dispute. This court finds no such grant of authority in the treaty. Furthermore, this case does not depend on the construction, effect or validity of the treaty. The 1868 Navajo treaty therefore cannot be the basis for federal subject matter jurisdiction.

In short, the present action — essentially one sounding in tort — does not involve “the validity, construction or effect” of federal law. See Schulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912). This court therefore lacks federal question jurisdiction over the matter.

III. Diversity Jurisdiction

The question of whether or not this court has diversity jurisdiction under 28 U.S.C. § 1332(a) is more problematic. See F. Cohen, Handbook of Federal Indian Law 317 (1982 ed.) (“Application of the [diversity] statute to actions against Indians arising in Indian country is ... subject to doubt”). Section 1332(a) reads in part:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or
subjects of a foreign state____

An Indian nation is not a foreign state. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 20, 8 L.Ed. 25 (1831). Rather, at least one court has suggested that an Indian who is a citizen of the United States and resides within a state is considered a citizen of that state for purposes of diversity jurisdiction. See Deere v. State of New York, 22 F.2d 851, 852 (N.D.N.Y.1927), aff'd sub nom. Deere v. St. Lawrence River Power Co., 32 F.2d 550 (2d Cir.1929). Here, the plaintiff is a Nevada corporation with its principal place of business in Texas. All the defendants are Indians living on the Navajo reservation in San Juan County, Utah. Since all Indians born in the United States are citizens of the United States, see 8 U.S.C. § 1401(b), the defendants may be considered citizens of the state of Utah. And the amount in controversy exceeds $10,000. Thus, a literal reading of section 1332(a) would seem to give this court jurisdiction over this case.

However, defendants argue that section 1332 does not apply to reservation-based disputes, and at least one court of appeals tends to agree. In two cases directly on point, the Ninth Circuit held that district courts lacked diversity jurisdiction. Hot Oil Servs., Inc. v. Hall, 366 F.2d 295 (9th Cir.1966); Littell v. Nakai, 344 F.2d 486

(9th Cir.1965), cert. denied, 382 U.S. 986, 86 S.Ct. 531, 15 L.Ed.2d 474 (1966). In Littell the general counsel for the Navajo tribe, a non-Indian, sued the chairman of the tribal council to enjoin the latter’s alleged tortious interference with the plaintiff’s performance of his contract with the tribe. The plaintiff asserted diversity jurisdiction. In Hot Oil Services a non-Indian plaintiff (a New Mexico corporation) sued an individual Indian defendant to enjoin her from interfering with its operations of a service station under a lease agreement between the parties, also alleging diversity jurisdiction. In both cases the Ninth Circuit affirmed the district court’s dismissal for lack of jurisdiction.

Superior has characterized the rationale of those cases as follows: A federal court sitting in diversity “operates as an adjunct to the state court.” Littell, 344 F.2d at 489. Because of the doctrine of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), a non-Indian plaintiff cannot bring an action in state court against an Indian for a reservation-based claim unless the state has accepted Congress’s invitation, expressed in Public Law 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, and 28 U.S.C. § 1360), to accept jurisdiction over most matters occurring on Indian territory within its borders. And “where one is barred from recovery in the state court, he should likewise be barred in the federal court.” Littell, 344 F.2d at 489 (quoting Woods v. Interstate Realty Co., 337 U.S. 535, 538, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949)). To hold otherwise would run counter to the policy of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Superior argues that Utah’s failure to effectively assume jurisdiction over the reservation should not deprive this court of jurisdiction. The court agrees. Even the Ninth Circuit has rejected the rationale of Littell and Hot Oil to the extent that those decisions rested on Erie. Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1315-17 (9th Cir.1982). Significantly, however, the Ninth Circuit has never rejected the result in those cases but has reaffirmed that a non-Indian plaintiff is precluded, under 28 U.S.C. § 1332, “from obtaining federal judicial resolution of a dispute which Williams v. Lee vests in the tribe’s exclusive jurisdiction.” Id. at 1317; see also R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 983 (9th Cir.1983) (reaffirming the result in Littell and Hot Oil).

The court concludes that resolution of this dispute is vested in the Navajo tribe’s “exclusive jurisdiction.” Although there is no controlling precedent on that issue, Supreme Court decisions of the last twenty-five years or so, beginning with Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), suggest that it is.

Williams v. Lee was a suit by a non-Indian plaintiff against an Indian couple to recover for goods sold on the reservation. The Supreme Court held that state courts did not have jurisdiction to hear the case, since exclusive jurisdiction over the matter was vested in the Navajo tribal courts. The Court stated that “to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the rights of the Indians to govern themselves.” 358 U.S. at 223, 79 S.Ct. at 272. The Court noted that, implicit in the 1868 treaty with the Navajos, “was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.” 358 U.S. at 221-22, 79 S.Ct. at 271-72 (emphasis added).

On another occasion the Court recognized that Indian tribes retain “attributes of sovereignty over both their members and their territory.” United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). The Court has also stressed that “Congress’ objective of furthering tribal self-government encompasses far more than encouraging tribal management of disputes between members____” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335, 103 S.Ct. 2378, 2387, 76 L.Ed.2d 611 (1983). The Court has found, for example, that the 1868 Navajo treaty, which reserved certain lands for the exclusive use of the Navajos, “was meant to establish the lands as within the exclusive sovereignty of the Navajos under general federal supervision.” McClanahan, 411 U.S. at 174-75, 93 S.Ct. at 1263-64 (emphasis added). Because of the strong federal interest in encouraging tribal self-government, see White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665 (1980), the Court has “repeatedly” recognized that tribal courts are the “appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65, 98 S.Ct. 1670, 1680, 56 L.Ed.2d 106 (1978) (emphasis added). In short, the Court has “consistently guarded the authority of Indian governments over their reservations.” Williams v. Lee, 358 U.S. at 223, 79 S.Ct. at 272. As the Court concluded in Williams, “If this power is to be taken away from them, it is for Congress to do it.” Id.

Superior argues that the diversity statute, 28 U.S.C. § 1332, is such an exercise of congressional power and notes that Congress has not expressly withdrawn diversity jurisdiction for claims arising on Indian reservations. The court believes that Superior has reversed the presumptions. The initial inquiry in determining whether this court has jurisdiction based on diversity of citizenship is not whether Congress has limited the application of the diversity statute but whether it intended the statute to reach as far as Superior claims. It is true that, “in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe ... remains subject to ultimate federal control.” United States v. Wheeler, 435 U.S. 313, 327, 98 S.Ct. 1079, 1088, 55 L.Ed.2d 303 (1978). Congress may limit or even abolish a tribe’s sovereignty. “But until Congress acts, the tribes retain their existing sovereign powers,” id. at 323, 98 S.Ct. at 1086, including the power to adjudicate disputes arising in their territory. Moreover, congressional intent to infringe on tribal sovereignty must be “clear.” See Santa Clara Pueblo v. Martinez, 436 U.S. at 60, 98 S.Ct. at 1678. The question, then, is whether Congress intended the diversity statute to limit tribal sovereignty by depriving tribes of exclusive jurisdiction over reservation-based disputes. This court concludes that Congress did not.

The diversity statute was first enacted in 1789, Act of Sept. 24, 1789, ch. 20, § 11, 1 Stat. 73, 78-79. It made no mention of Indians, and it is unlikely that Congress had the future status of the Indian tribes in mind when it passed the statute. General statutes should not be construed so as to abrogate rights of tribal self-government absent specific congressional intent to the contrary, United States v. White, 508 F.2d 453, 455 (8th Cir.1974), and “available evidence suggests that there was no such intent,” F. Cohen, supra, at 317. Accord Littell, 344 F.2d at 489 (rejecting the argument that 28 U.S.C. § 1332 showed Congress’s intent to limit tribal sovereignty). Moreover, Congress has expressly prevented states from assuming jurisdiction over private civil claims that arise in Indian country and to which Indians are parties unless the Indians in the affected area consent to such an invasion of tribal sovereignty by majority vote at a special election. 25 U.S.C. § 1326. A general statute such as the diversity statute should not be construed so as to get around the policy of tribal self-government expressed in section 1326. See F. Cohen, supra, at 317 n. 291.

In concluding that this court lacks diversity jurisdiction over a reservation-based tort claim such as Superior’s, the court recognizes that other courts have reached contrary conclusions. See, e.g., Poitra v. Demarrias, 502 F.2d 23 (8th Cir.1974), cert. denied, 421 U.S. 934, 95 S.Ct. 1664, 44 L.Ed.2d 93 (1975); American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F.Supp. 1020, 1021 (D.Colo. 1982); American Indian Nat’l Bank v. Red Owl, 478 F.Supp. 302 (D.S.D.1979) (following Poitra in a case involving a non-Indian plaintiff).

Poitra was a wrongful death action between two Indians. The district court dismissed the action for lack of subject matter jurisdiction, citing Erie for the proposition that a federal court sitting in diversity could not entertain an action that could not be maintained in state court. Since the state supreme court had closed the doors of state courts to actions such as that in Poi-tra, the district court concluded that it was without jurisdiction to hear the matter. The Eighth Circuit reversed, arguing that state law cannot enlarge or restrict the diversity jurisdiction of federal courts. The court noted that Erie was concerned with federal encroachment on state policies and concluded that there was no danger of such encroachment where the federal court was serving as a forum to vindicate a state-created right. The reason the state lacked jurisdiction was because of the special status of Indians under federal law, not because of any state policy. Moreover, the court found no danger of interference with tribal self-government where one Indian was suing another on a state-created cause of action that did not involve “considerations of policy regarding tribal lands or customs.” 502 F.2d at 29. Accord American Indian Agricultural Credit Consortium, 551 F.Supp. at 1021 (“where an action does not concern a purely internal tribal matter, federal jurisdiction may be consistent with Williams [v. Lee]”).

The court agrees that Erie presents no barrier to its assumption of jurisdiction over the present dispute, since Erie is a choice of law doctrine, not a jurisdictional matter, although Erie could pose a barrier to the relief sought. See Begay, 682 F.2d at 1316-17. However, this court disagrees with the conclusion that a federal court may assume jurisdiction over a private reservation-based claim so long as it does not involve tribal land, a tribal official or tribal policy. Such a position construes “tribal self-government” too narrowly and takes too restricted a view of the rationale of Williams v. Lee, which itself found sufficient interference with tribal sovereignty in a purely private action. Although the present dispute involves a tort claim rather than a contract claim and the jurisdiction of the federal courts rather than the jurisdiction of state courts, these differences are legally insignificant. A tribe’s interest in self-government is impinged just as much when another court resolves a dispute within the exclusive province of the tribal court whether that other court is a state court or a federal court. Accord R.J. Williams, 719 F.2d at 983 (“if a state or federal court resolves a dispute which was within the province of the tribal courts ..., that court would impinge upon the tribe’s right to adjudicate controversies arising within it”) (emphasis added); Littell, 344 F.2d at 489 (federal jurisdiction would be “equally disruptive” as state court jurisdiction of the “strong Congressional policy to vest the Navajo Tribal Government with responsibility for their own affairs”).

The court recognizes that its conclusion —namely, that it is without jurisdiction to hear reservation-based tort claims such as Superior’s — will relegate non-Indian plaintiffs like Superior to what they may perceive as a hostile forum. This court cannot presume, however, that non-Indians will receive less than impartial justice from tribal courts. If it appears that tribal courts are abusing their exclusive jurisdiction in these matters, the remedy is with Congress, which has already taken steps to ensure that tribal courts comport with accepted notions of due process and equal protection by enacting the Indian Civil Rights Act, § 202(8), 25 U.S.C. § 1302(8) (1982). See also Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 933 (10th Cir.1975) (the guarantees of 25 U.S.C. § 1302 are available to non-Indians as well as Indians). A contrary decision (namely, that this court has concurrent jurisdiction over this matter with the tribal court) would mean that non-Indian plaintiffs would almost always sue in federal court, while Indian plaintiffs would almost always sue in tribal court over similar reservation-based disputes, leading to inconsistent results depending on the forum selected since each forum would apply its own procedural rules and, at times, different substantive rules. It was just such inconsistency that the Supreme Court eschewed in Erie.

The court acknowledges that Indian tribes do not enjoy unlimited sovereignty. Congress could choose to give federal district courts concurrent jurisdiction with tribal courts over all reservation-based disputes or over all such disputes where the parties are of diverse citizenship. But until Congress clearly acts to limit that sovereignty, it is threatened just as much by a federal court’s assumption of jurisdiction as by a state court’s. The diversity statute, 28 U.S.C. § 1332, is simply not such a clear expression of a congressional intent to limit tribal sovereignty. Cf. 28 U.S.C. § 1362 (clearly conferring jurisdiction on district courts to hear civil actions brought by an Indian tribe and involving a federal question).

Because this court lacks subject matter jurisdiction in this matter, Superior’s complaint must be dismissed.

      . Although Utah has accepted such jurisdiction, 1971 Utah Laws 538 (codified at Utah Code Ann. §§ 63-36-9 through -21 (1953)), its assumption of jurisdiction is expressly conditioned on subsequent tribal consent, Utah Code Ann. § 63-36-10, and to date no Utah tribe has consented to the state's taking jurisdiction. See F. Cohen, Handbook of Federal Indian Law 363 n. 127.

      . Federal policy toward the Indians, essentially a conquered people, has suffered from a kind of schizophrenia, alternating between periods in which the government has sought to destroy the Indians’ separate identity and assimilate them into mainstream U.S. society and periods in which it has sought to preserve tribes as semiau-tonomous sovereignties within that society. See generally F. Cohen, supra, 47-206. One authority calls the period from 1961 to the present one of "self-determination,” in which federal policy has been “to promote the practical exercise of inherent sovereign powers possessed by Indian tribes.” Id. at 180. The prior policy of coercive termination of Indian tribes was officially abandoned in 1958, the year before Williams v. Lee was decided.

      . The conclusion that this court lacks jurisdiction might be different if Superior had asserted that the tribal court lacked jurisdiction over the matter, see National Farmers Union Ins. Co. v. Crow Tribe of Indians, — U.S. —, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), or, perhaps, that it had been refused access to tribal courts, see R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979 (9th Cir.1983) (plaintiff’s claim of diversity jurisdiction would have to await the tribal court’s decision as to whether or not it had jurisdiction of the matter). Superior has not questioned the jurisdiction of the tribal court over this matter. Rather, it merely asserts that this court has concurrent jurisdiction. The jurisdiction of the tribal court seems clear. See Navajo Tribal Code, title 7, § 253(2) (“The Trial Court of the Navajo Tribe shall have original jurisdiction over ... [a]ll civil actions in which the defendant is a resident of Navajo Indian country, or has caused an action to occur in Navajo Indian country"), quoted in defendants’ Memorandum of Points and Authorities in Support of Motion to Dismiss at 12 n. 1. In any event, the question of the tribal court's jurisdiction is properly left to that court in the first instance. See National Farmers, — U.S. —, 105 S.Ct. at 2454.