Petition for Writ of Certiorari — Northwest Commercial Fishermen's Federal Recovery Ass'n v. United States

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

NORTHWEST COMMERCIAL FISHERMEN’S

FEDERAL RECOVERY ASSOCIATION,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

K.R. ST. CLAIR

gerne = JR. 1002 South Third Street

P.O. Box 1169

Olympia, Washington 98501 Mount Vernon, WA 98273

(206) 943-6800 | (206) 336-9655

March 4, 1985

PRESS OF BYRON-S. ADAMS, WASHINGTON, D.C. (202) 347-8203

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

\

No.

NORTHWEST COMMERCIAL FISHERMEN'S

FEDERAL RECOVERY ASSOCIATION, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED

‘

WHETHER THE COURT OF APPEALS FOR THE

FEDERAL CIRCUIT ERRED IN GRANTING

RESPONDENT'S MOTION TO DISMISS

PETITIONER'S APPEAL FROM THE CLAIMS

COURT'S DENIAL OF AN EXTENTION OF

TIME FOR PETITIONER TO FILE ITS

NOTICE OF APPEAL FROM THAT COURT'S

JUDGMENT OF MAY 3, 1984.

PARTIES

Parties to this proceeding include

those listed in the caption and in foot- —

note l.

Be Aho, Aatos, 4323 113th Place, N.E.,

Marysville, WA 98270; Ailen, Walter,

29459 Beach Drive, N.E., Poulsbo, WA

98370; Alvig, Delbert, 8532 Eastview Ave.,

Everett, WA 98204; Anderson, David H.,

3890 East French Road, Clinton, WA 98236;

Anderson, Victor E., 10214 Waller Road,

Tacoma, WA 98446; Balch, Ray F., 86 Lind-

berg Road, Port Angeles, WA 98362; Banks,

Sheldon L., 1912 Conifer Drive, Ferndale,

WA 98248; Barcott, Francis, 1820 8th

Street, Anacortes, WA 98221; Barcott,

Lynn F., 1903 Island View Place,

Anacortes, WA 98221; Baxter, Charles,

1111 48th Avenue East, Tacoma, WA 98446;

aM

7

Beach, Frank D., Jr., 925 Claybrook Rd.,

Sedro Woolley, WA 98284; Benton, James T.,

P.O. Box 871, Hanna, Wyoming 32327; Black,

John D., 1054 S.W. Camono Dr., Camano

Island, WA 98282; Borgman, William, 1292

Ash, Marysville, WA 98270; Borovina,

John M., Jr., 237 Alverson Blvd., Everett,

WA 98201; Brandt, Gary, 1056 Waldron Road,

Bellingham, WA 98225; Brenke, Krut, P.O.

Box 205, Kirkland, WA 98033; Bright,

William T., 123 150th Place S.E., Lynnwood,

WA 98036; Brown, H.E., Box H, Oak Harbor,

WA 98277; Brown, Kenneth W., 8116 Wayne

Avenue, Stanwood, WA 98292; Cain, Ben L.,

959 Queen Street, Bellingham, WA 98225;

Carlson, Melvin C., 4536 33rd West,

Seattle, WA $8199; Chichester, Robert,

1426 Bradshaw Road, Mt. Vernon, WA 98273;

Chilman, Gilbert, Jr., Route 2, Box 117,

Hoquiam, WA 98550; Cole, Ralph W., 167

Madrona, Anacortes, WA 98221; Colvin,

Willis B., 5520 Sugarloaf, Anacortes, WA

ae

98221; Crosby, Allan R., 2119 12th, Ana-

cortes, WA 98221; Crosby, Leslie J.,

514 Thistle Lane, Amacortes, WA 98221;

Dahl, Alvin, 16921 Scandia Court, N.W.,

Poulsbo, WA 9837C; Dickinson, David L.,

P.O. Box 37, Lummi Island, WA 98262;

Dimmick, Clyde, 213 Elm Street, Edmonds,

WA 98020; Dobszinsky, Fred, 17002 - 12th

S.W., Seattle, WA 98166; Dooley, George E.,

III, 316 Greenleaf Ave., Burlington, WA

98233; Dunphy, Herbert M., 8570 800 West,

Oak Harbor, WA 98277; Eason, Lawrence J.,

423 Avenue B., Snohomish, WA 98290;

Fayette, Brian, 3911 S Avenue, Anacortes,

WA 98221; Fayette, Howard, 3911 S Avenue,

Anacortes, WA 98221; Finn, Clair A., P.O.

Box 793, Seattle, WA 98111; Fleenor, Bill,

P.O. Box 929, Shelton, WA 98584; Fleenor,

Joy, P.O. Box 929, Shelton, WA 98584;

Franulovich, Tony, 1107 Finch Street,

Mt. Vernon, WA 98273; Garner, Robert L.,

12814-54 N.E., Marysville, WA 98270;

nlite

Gilhousen, Gail, 1601 6th Street, Ana-

cortes, WA 98221; Good, K.C., 1902 Dry

Slough Road, Mt. Vernon, WA 98273;

Graham, Dean, 1303 26th, Anacortes, WA

98221; Grauberger, David, 1725 6th, Port

Angeles, WA 98362; Hansen, Dick, 5504 70th

N.E., Marysville, WA 98270; Hansen,

Randall G., 2411 N.W. 201, Seattle, WA

98177; Hanson, Vernon, 1717 East Sunset

Dr., Bellingham, WA 98225; Harsila, David,

12739 26th N.E., Seattle, WA 98115;

Hendrickson, Royce M , 1314 VanWyck Road,

Bellingham, WA 98225; Holm, Philip E.,

2243 Mann Road, Mt. Vernon, WA 98273;

Jewell, Rick, 2285 Minkler Road, Sedro

Woolley, WA 98284; Jones, Henry A., Jr.,

3305 West Hooker, Seattle, WA 98199;

Kaald, Arne, 2416 N.W. 197th, Seattie, WA

98177; Klingman, R. Armold, 2203 12th,

Anacortes, WA 98221; Knudson, Ed G., Jr.,

2610 Commercial, Anacortes, WA 98221;

Kohlwes, Greg, 2597 E. Sunlight Beach,

ms

Clinton, WA 98236; Kohlwes, Robert H.,

2597 E. Sunlight Beach, Clinton, WA 98236;

Kuchin, Steve, 3403 West 5th, Anacortes,

WA 98221; Langesater, Einer, 19731 21st

N.W., Seattle, WA 98177; Lorenzo, Robert,

2929 East Sunset Dr., Bellingham, WA 98225;

Losnegard, Alf, 825 South 143rd Place,

Seattle, WA 98168; Lowman, Will P., 2905

Anaco Beach Rd., Anacortes, WA 98221;

Lucci, William J., 261 South Naches,

Buckley, WA 98321; Magnuson, Earl W.,

1431 108th S.E., Bellevue, WA 98004;

Martinson, Donald, 13303 Wigen Road,

Lynnwood, WA 98036; Maticich, Bennett,

4106 R Avenue, Anacortes, WA 98221;

McMaster, Robert L., 6045 S. 1850 East,

Freeland, WA 98249; Merrill, Myron E.,

2319 13th, Anacortes, WA 98221; Mikkelsen,

Kaare T., 19921 N. Park Ave. North,

Seattle, WA 98133; Milholland, David,

1578 Yokeko Drive, Anacortes, WA 98221;

Munson, F.D., 806 Cary Road, Edmonds, WA

ile

98020; Nelson, Arthur H., 1511 Skagit City

Rd., Mt. Vernon, WA 98273; Ness, Arthur W.,

5102 South Adams, Seattle, WA 98118; Ness,

Tony, P.O. Box 160, La Conner, WA 98257;

Odell, R.K., 19117 15th N.W., Seattle, WA

98177; Olich, Boris, 1015 Puget Way, Ana-

cortes, WA 98221; Olson, Robert M., 2217

N. Polnell Rd., Oak Harbor, WA 98277;

Oreb, John, 1803 10th, Anacortes, WA 98221;

Padovan, Pete L., 2910 R, Anacortes, WA

98221; Petterson, Arnold, Route l, Box

1050, Eastsound, WA 98245; Plancich,

- Mitchell, 7508 47th N.E. #23, Marysville,

WA 98270; Pollev, James, 626 N.W. 182nd,

Seattle, WA 98117; Popp, Walter E., 1408

Avon Allen Rd., Mt. Vernon, WA 98273;

Prettyman, R.A., 2877 Griffith Avenue,

Bellingham, WA 98225; Rasmussen, Clarence,

P.O. Box 398, Poulsbo, WA 98370; Rimstad,

Matty, 12712 10th Drive S.E., Everett, WA

98204; Rodgers, Edwin G., 346 W. Cornet

Bay Rd., Oak Harbor, WA 98277; Rogers,

Gary, 1222 Toledo Street, Bellingham, WA

98225; Ross, Richard, 102 N.W. 10lst,

Seattle, WA 98177; Rustad, Thomas, P.O.

Box 951, Poulsbo, WA 98370; Schille,

Thomas A., 6629 South Conrad, Clinton, WA

98236; Schruder, Arthur M., P.O. Box 531,

Kingston, WA 98346; Schruder, Helen, P.O.

Box 531, Kingston, WA 98346; Secher,

Jensen U., 2246 North Cove Drive, Oak

Harbor, WA 98277; Sedlar, Peter, 1127

Hazel Street, Port Angeles, WA 98362;

Seman, Vladimir, Jr., 501 37th, Anacortes,

WA 98221; Severson, Dan, 4319 Woodland

Park Ave. N., Seattle, WA 98102; Seward,

W.B., Jr., 14319 Bingham Ave. E., Tacoma,

WA 98446; Shaver, Kenneth E., P.O. Box 917,

Westport, WA 98595; Sorenson, Kenneth,

P.O. Box 1625, Sequim, WA 98332; Sorenson,

Ralph, 222 3rd Avenue S., Edmonds, WA

98020; Spinale, Dominic C., 12 Campbell

Court, Pittsburg, CA 94565; Spinale,

Joseph D., 5085 Laurel Drive, Concord, CA

olin

94521; Stone, Vernon, 7735 Hellman Road,

Clinton, WA 98236; Suryan, Ivan, 3805 S.

Avenue, Anacortes, WA 98221; Torget, Axel

J., 6209 36th N.W., Seattle, WA 98107;

Turton, Joseph M., 618 Four Seasons

Ranch, Port Angeles, WA 98362; Vadset,

Donald, 9023 25th N.W., Seattle, WA 98117;

Wagar, Paul, Route 1, Box 93, Port Town-

send, WA 98368; Walvatne, Edwin L., Route

1, Box 1600, Lopez, WA 98261; Watson, Jim,

1413 28th, Anacortes, WA 98221; Whitaker,

William, 1401 Marietta, Bellingham, WA

98225; Wieting, H.H., General Delivery,

Westport, WA 98595; Wight, Donald, 2601

Vining Place, Bellingham, WA 98225;

Wittig, Ms. Carl H., 18218 42nd Place

West, Lynwood, WA 98036.

(d) Gerald F. Collier (dec'd) 307

Occidental Avenue, Seattle, WA 98104

(206) 682-4355

Doug Owens, 911 6th Street,

Anacortes, WA 98221 (206) 293-9502

Associate Counsel

sQe

TABLE OF CONTENTS

Table of Authorities

Jurisdiction of the Court

United States Constitutional

Provisions and Court Rules

Involved

Statement of the Case and of

Issues Preserved on Appeal

Argument

I. THE COURT OF APPEALS FOR

THE FEDERAL CIRCUIT ERRED

IN FINDING THAT THE CLAIMS

COURT HAD NOT ABUSED ITS

DISCRETION IN DENYING

PETITIONER'S MOTION FOR

AN EXTENSION OF TIME TO

FILE A NOTICE OF APPEAL.

II. THE INTERESTS OF JUSTICE

REQUIRE THAT THIS CASE BE

CONSIDERED ON ITS MERITS.

Conciusion

Appendix

-10-

17

23

TABLE OF AUTHORITIES

Cases Cited:

Airline Pilots v. Executive Airlines,

(list Cir. 1978) 569 F.2d 1174.

Benoist v. Brotherhood of Locomotive

ineers (8th Cir. il

555 F.2d 671. .

Blake v. United States

(D.C. Va. 1960) 181 F.Supp. 584.

Chipser v. Kohnmeyer & Co.

(Sth Cir. 1979) 600 F.2d 1061.

Fallen v. United States (1964)

378 U.S. 139, 84 S.Ct. wet

12 L.Ed.2d 769... .

Feeder Line Towing Service, Inc. v.

Toledo P.&W. R.R. Co.

(7th Cir. 1976) 539 F.2d 1107.

Gooch v. Skelley Oil

(10th Cir. 1974) 493 F.2d 366.

Inc.

H.L. Smith, Inc. v. Allied Chemical Corp.

(M.D. La. 1983) 564 F.Supp. 377.

In Re Jossephson

(list Cir. 1954) 218 F.2d 174 .

Jackson v. United States (1952)

122 Cl.Ct. 197, 103 F.Supp. 1019 .

LeJeune v. Midwestern Insurance Co.

(Sth Cir. 1952) 197 F.2d 149 .

v. Long Island R.R.

(2nd Cir. 1966) 320 F.2d 911 .

sile

26

24

31

24

28

28

24

27

24

29,31

25

24

fatter of Bad Bubba Racing Products, Inc.

(5th Cir. 1980) 609 F.2d 815.

lregon v. Champion International Corp.

(9th Cir. 1982) 680 F.2d 300.

asquale v. Finch

(lst Cir. 1969) 418 F.2d 627.

inero-Schroeder v. Fed. Natl. Mortg. Assn.

(lst Cir. 1978) 574 F.2d 1117 .

restex, Inc. v. United States (1983)

& Ci.ce. 6. De a aati ae

uget Sound Gillnetters Assn. v.

U.S. District Court (9th Cir. 4978)

eee ae

anchez v. Board of Regents

(Sth Cir. 1980) 625 F.2d 521.

pound v. Mohasco Industries, Inc.

(lst Cir. 1976) 534 F.2d 404.

prout v. Farmer's Insurance Exchange

(9th Cir. 1982) 681 F.2d 587.

itate v. Saugen (1969)

283 Minn. 402, 169 N.W.2d 37.

itate of Washington v. Washington State

Commercial Passenger Fishing

Vessel Assn. (1979)

443 U.S. 658, 99 S.Ct. 3305,

61 L.Ed.2d 823. re

‘odd v. United States

(Ct. Cl. 1961) 292 F.2d 841 .

=

20

31

Page

Inited States v. Washington cd D. Wash. 1874)

pee wu ss ea Ce a 18,19

statutes Cited:

ie rE Sh TST eS SS 6 6 ge ww 20,22

Se ek lk lw ke 20

ey OO ee ee ee eke tw lw 21

Pe I SO gg kw we 23

‘ederal Rule of Appellate Procedure 4(1)(5). . 23

JURISDICTION OF THE COURT

Jurisdiction of this Court is invoked pursuant

7o 28 U.S.C. §1254(1).

nite

UNITED STATES CONSTITUTIONAL PROVISIONS

AND COURT RULES INVOLVED

AMENDMENT V

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be sub-

ject for the same offence to be put twice

in jeopardy of life and limb; nor shall be

compelled in any Criminal Case to be a wit-

ness against himself, nor be deprived of

life, Tiheety.. or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation.

AMENDMENT XIV

Section l

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or en-

force any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

ahh.

CLAIMS COURT RULE 72

Review of a decision of this court

shall be obtained by filing a notice of

appeal with the clerk within the time and

manner prescribed for appeals to United

States courts of appeals from United States

district courts.

FEDERAL RULE OF APPELLATE PROCEDURE 4(a)

SECTIONS 1 AND 5

In a civil case in which an appeal is

permitted by law as of right from a dis-

trict to a court of appeals the notice of

appeal required by Rule 3 shall be filed

with the clerk of the district court with-

in 30 days after the date of entry of the

judgment or order appealed from; but if

the United States or an officer or agency

thereof is a party, the notice of appeal

may be filed by any party within 60 days

after such entry. If a notice of appeal

is mistakenly filed in the court of ap-

peals, the clerk of the court of appeals

shall note thereon the date on which it

was received and transmit it to the clerk

of the district court and it shall be

deemed filed in the district court on the

date so noted.

(5) The district court, upon a show-

ing of excusable neglect or good cause,

may extend the time for filing a notice of

appeal upon motion filed not later than 30

days after the expiration of the time

prescribed by this Rule 4(a). Any such

motion which is filed before expiration of

the prescribed time may be ex parte unless

the court otherwise requires. Notice of

any such motion shall be given to the other

parties in accordance with local rules. No

«iS

such extension shall exceed 10 days past

such pcescribed time or 10 days from the

date of entry of the order granting the

motion, whichever occurs later.

aie

STATEMENT OF THE CASE AND OF ISSUES

PRESERVED ON APPEAL

This is a petition for certiorari

filed after respondent's motion to dismiss

petitioner's appeal was granted by the

Federal Circuit on December 12, 1984. The

appeal was taken to the Federal Circuit

after the Claims Court refused to grant

petitioner's motion for an extension of

time to file its notice of appeal from

that court's judgment of May 3, 1984.

Petitioner, Northwest Commercial

Fishermen's Federal Recovery Association,

is the assignee of the claims of the in-

dividual members of the Association

against the United States for its inten-

tional and/or negligent acts which inter-

fered with, damaged, and took its assig-

nors' property rights created by the

commercial fishing licenses they were

granted by the State of Washington.

The petitioner's claims arise from

-l7-

the actions of the United States and its

agents in the conduct and decision of the

case of United States v. Washington (W.D.

Wash. 1974) 384 F.Supp. 312, aff'd (9th

Cir. 1975) 520 F.2d 676, cert. den. (1975)

423 U.S. 1086, rehrg. den. (1976) 424 U.S.

978. Im 1970, the United States Attorney

General, on behalf of various Northwest

Indian tribes, brought an action in the

U.S. District Court of Washington to

declare the rights of those Indian tribes

under various treaties made with the Uni-

ted States before Washington became a

State, alleging that the State of Washing-

ton was interfering with those rights by

regulations and practices interfering

with their access to fish in Washington's

coastal waters. Id., at 327-328. The

District Court's decision interpreted

the treaties to mean that the members of

the treaty tribes had been reserved a

right to have access to and to harvest up

to 45-50% of all harvestable fish at their

usual and accustomed grounds and stations

in Washington's coastal waters. The court

held that the State of Washington not only

could not interfere with this right (ex-

cept as might be absolutely necessary to

preserve the fishery species), but also

must affirmatively protect this right by

state regulations that would prohibit non-

treaty Indians, including state-licensed

commercial fishermen, from taking more

than their allotted 50% share of the fish.

Id., at 343-344.

Between 1974 and 1978, the District

Court attempted to enforce its decision

by a series of orders and injunctions,

while the State of Washington was through

its courts issuing counter-orders and

denying the authority of the District

Court. See the history recited in Puget

Sound Gillnetters Assn. v. U.S. District

Court (9th Cir. 1978) 573 F.2d 1123, and

"=

State of Washington v. Washington State

Commercial Passenger Fishing Vessel Assn.

(1979) 443 U.S. 658, 99 S.Ct. 3305, 61

L.Ed.2d 823. The latter decision finally

put to rest any judicial dispute over the

authority of the District Court to enforce

its 1974 decision. Thereupon petitioner

was formed and filed a claim in the Dis-

trict Court of the Western District of

Washington to recover just compensation

for the valuable property rights of which

the District Court's decision, as inter-

preted by the Supreme Court, had ultimate-

ly deprived them. The District Court's

jurisdiction over this matter was based on

28 U.S.C. §1331.

On June 15, 1981, the Court made its

Order granting respondent's motion for

summary judgment. Petitioner took an

appeal of this Order to the Court of

Appeals for the Ninth Circuit; that court's

jurisdiction was based on 28 U.S.C §1291.

=20-

On November 24, 1982, the Ninth Circuit

issued its opinion affirming the summary

judgment in part, but remanding the taking

portion of that judgment to the district

court for possible transfer to the Claims

Court. Petitioner's motion for transfer

was granted on February 2, 1983. The

Claims Court's jurisdiction was based on

28 U.S.C. §1491. On May 3, 1984, the

Claims Court granted respondert's motion

and dismissed the case.

Petitioner mailed its notice of

appeal from that dismissal on June 28,

1984. The notice arrived at the Claims

Court on July 5, 1984, one day late, and

was rejected as being untimely filed.

On July 10, 1984, petitioner filed a

motion to extend time to file notice of

appeal. This motion was denied on

August 4, 1984.

Petitioner filed its notice of

appeal from the denial of its motion on

| -21-

OEE EEO

September 25, 1984. The Federal Circuit's

jurisdiction to hear the appeal was based

on 28 U.S.C. §1291. On October 9, 1984,

respondent moved, in the Federal Circuit,

to dismiss the appeal. That motion was

granted on December 12, 1984.

ARGUMENT

I. THE COURT OF APPEALS FOR THE

FEDERAL CIRCUIT ERRED IN

FINDING THAT THE CLAIMS COURT

HAD NOT ABUSED ITS DISCRETION

IN DENYING PETITIONER'S MOTION

FOR AN EXTENSION OF TIME TO

FILE A NOTICE OF APPEAL.

Claims Court Rule 72 states that

"[rleview of a decision of this court

shall be obtained by filing a notice of

appeal with the clerk within the time

and manner provided for appeals to United

States Courts of Appeals from United

States District Courts." The rule appli-

cable to the case at bar is Federal Rule

of Appellate Procedure (FRAP) 4(a) (5)

which provides in relevant part that "([a]

district court, upon a showing of excusa-

ble neglect, may extend the time for

filing a notice of appeal ....

=$9e

Thus, the Claims Court had the dis-

cretion to accept appellant's request for

an extension of time to file a notice of

appeal. Gooch v. Skelley Oil (10th Cir.

1974) 493 F.2d 366, cert. den. (1974)

419 U.S. 997. Its decision that the delay

was not due to excusable neglect may be

reversed as an abuse of this discretion if

petitioner now makes a showing to the con-

trary. Chipser v. Kohnmeyer & Co. (5th

Cir. 1979) 600 F.2d 1061; Benoist v.

Brotherhood of Locomotive Engineers (8th

Cir. 1977) 555 F.2d 671. A reviewing

court may overturn a lower court's deci-

sion on a discretionary matter if “it has

a definite and clear error in judgment

in the conclusion it reached upon a weigh-

ing of the relevant facts." Lowry v. Long

Island R.R. (2d Cir. 1966) 320 F.2d 911,

912, citing In Re Jossephson (lst Cir. 1954)

218 F.2d 174.

Such an error can be shown in this

a2h-

_ oo eoowreerrrrrererereereorree

case. The cases relied upon by the Claims

Court and impliedly by the Federal Circuit

are distinguishable from the present case.

Both Matter of Bad Bubba Racing Products,

Inc. (5th Cir. 1980) 609 F 2d 815 and ’

LeJeune v. Midwestern Insucance Co. (5th

Cir. 1952) 197 F.2d 149 stand for the pro-

position that mailing a notice of appeal

is not equivalent to filing the document.

Petitioner does not contest that proposi-

tion; no claim is made that the notice

was filed on or before the required

July 2 date. Petitioner does contend,

however, that the notice of appeal was

filed after July 2 due to excusable

neglect.

This is not a case of “a mere palpa-

ble mistake by experienced counsel." See

Spound v. Mohasco Industries, Inc. (lst

Cir. 1976) 534 F.2d 404, cert. den. (1976)

429 U.S. 886. Nor is this a "mistake of

counsel, without more” which apparently

=2$-

NN eee eee aaeaeem

"would not be considered excusable neglect

by [the Federal Circuit].'' Prestex, Inc.

v. United States (1983) 4 Cl.Ct. 14, aff'd

(Fed.Cir. July 27, 1984) Mem. No. 84-790.

In Prestex the notice of appeal was filed

late because the attorney miscalculated

the appeal time. No such error was made

in the present case. Also, counsel in

this case and his employees did not incor-

rectly note the date upon which the appeal

period expired or mistakenly address the

notice of appeal to an incorrect court.

See Airline Pilots v. Executive Airlines,

Inc. (lst Cir. 1978) 569 F.2d 1174;

Oregon v. Champion International Corp.

(9th Cir. 1982) 680 F.2d 300.

This case is also distinguishable

from Sprout v. Farmer's Insurance Exchange

(9th Cir. 1982) 681 F.2d 587. In Sprout

counsel simply failed to prepare a notice

of appeal. In the case at bar, a notice

of appeal was prepared and properly

-26-

dispatched to the proper court. Counsel

did not delay until the last day of the

appeal period to mail the notice of appeal,

but dispatched that notice in what appeared

to be ample time (i.e., on June 28, 1984,

four days before due, via United States

mail). Cf., H.L. Smith, Inc. v. Allied

Chemical Corp. (M.D. La. 1983) 564 F.Supp.

377.

In sum, petitioner and its counsel

did everything within their power to

assure that the notice of appeal was filed

within the appropriate time limitations.

No defect in office procedure or mistake

of counsel led to the delay. counsel does

not maintain that work on other matters

caused the delay. Cf., Pinero-Schroeder

v. Fed. Natl. Mortg. Assn. (lst Cir. 1978)

574 F.2d 1117; Pasquale v. Finch (lst Cir.

1969) 418 F.2d 627 (misrouting of notice

in Justice Department). '"[R]eliance on

the normal course of delivery of mail is

-27-

EO

reasonable and may be the basis for a court

to excuse otherwise untimely filing."

Sanchez v. Board of Regents (5th Cir. 1980)

625 F.2d 521, 522. See Fallen v. United

States (1964) 378 U.S. 139, 84 S.Ct. 1689,

12 L.Ed.2d 769. The delay in the mail was

entirely out of petitioner's counsel's

control; this surely is a situation “in

which tardiness is excusable and it is

unfair to dismiss an appeal because of late

filing of notice.'"' Feeder Line Towing

Service, Inc. v. Toledo P.&W. R.R. Co.

(7th Cir. 1976) 539 F.2d 1107. It would

certainly be unfair to psnalize petitioner

because the mails were unexpectedly slow.

The Claims Court's refusal of an extension

of time should, therefore, be reversed.

II. THE INTERESTS OF JUSTICE

REQUIRE THAT THIS CASE

BE CONSIDERED ON ITS MERITS.

Respondent emphasizes that this case

has been in the federal courts since 1979

= 28.

aE

and urges that the interests of justice

require that it be summarily disposed of.

Merely because this litigation has taken

a long and circuitous path through the

court system does not mean that it should

be disposed of as quickly as possible on a

procedural technicality. Similarly, the

fact that the Ninth Circuit commented on

the merits of some of appellant's claims

is irrelevant. That court's ultimate

decision was that it had no jurisdiction

over this case. Furthermore, the Ninth

Circuit noted that the Claims Court might

decide the merits differently than the

district court based on the rationale of

Jackson v. United States (1952) 122 Cl1.Ct.

197, 103 F.Supp. 1019.

In Jackson, compensation was awarded

for the destruction of the value of a

state-issued fishing license, upon facts

very similar to those of the instant case.

In that case, plaintiff's decedent had

29

possessed a license from the State of

Maryland to conduct commercial fishing

operations in certain areas of Chesapeake

Bay. In 1943, the federal government re-

defined certain restricted military prov-

ing-ground areas to include decedent's

fishing ground, and notified him that he

would no longer be permitted to fish

there. The court noted that he was unable

to fish elsewhere ‘since all other loca-

tions had been appropriated by other

licensed fishermen. The court held that

the fishing right constituted a property

right for which compensation was required.

In a sense, what the plain-

tiff had before he was for-

bidden to fish was a property

right. It had value, in that

he made his living from it....

We think, therefore, that

the plaintiff had a sort of

property right in his fishing

-30-

ground, and that the Government

took that property from him.

Id., 103 F. Supp. at 1020.

Accord, Blake v. United States (D.C. Va.

1960) 181 F.Supp. 584, 587; Todd v. United

States (Ct. Cl. 1961) 292 F.2d 841, 845.

Thus, in cases involving occupational

licenses such as fishing licenses and

liquor licenses, courts have frequently

recognized a compensable property right

where the governmental action significantly

damages the economic value of the license,

the licensees have made significant invest-

ments in personal property and equipment

in justifiable reliance thereon, and they

are in practice unable to transfer the

location of their License in order to con-

tinue to realize its economic value.

State v. Saugen (1969) 283 Minn. 402, 169

N.W.2d 37; Todd v. United States, supra;

Jackson v. United States, supra. Peti-

tioner's claims satisfy all of the

afte

a eOoOooOoOooO

foregoing criteria. It is therefore

entitled to compensation for respondent

taking its members property. In order

for this compensation to be recovered,

this Court must reverse the Federal Cir-

cuit's decision and allow this case to

be heard on its merits.

CONCLUSION

The Federal Circuit erred in deciding

that the Claims Court had not abused its

discretion in denying petitioner's motion

for an extension of time to file a notice

of appeal. The delay in filing was due

to excusable neglect within the meaning

of Federal Rule of Appellate Procedure

4(a)(5). In order for petitioner's

members to recover the compensation to

which they are entitled, the lower

court's decision must be reversed. It is

fii

‘iti

Hitt

-32-

for these reasons that petitioner requests

this court to grant certiorari.

Respectfully submitted,

K.R. St. Clair

1002 South Third Street

P.O.Box 1169

Mount Vernon, WA 98273

Attorney for Petitioner

«2% ‘

APNE DC PPS it

CERTIFICATE OF SERVICE BY MAIL

I declare that I have been admitted to

practice before this Court and that I

represent the petitioner herein.

My business address is 1002 South Third

Street, Mount Vernon, Washington 98273.

On February , 1985, I served the within

PETITION FOR WRIT OF CERTIORARI on the

interested parties in said cause by plac-

ing a true copy thereof enclosed in a

sealed envelope with postage thereon fully

prepaid, in the United States mail ad-

dressed as follows:

Solicitor General

Department of Justice

Washington, D.C. 20530

Thomas H. Pacheco

Attorney, Appellate Section

United States Dept. of Justice

P.O. Box 7415, Wash. D.C. 20044

I declare under penalty of perjury that

the foregoing is true and correct and

that this declaration was executed on

Hebruary _, 1985.

~34<

~ BEST AVAILABLE COPY

APPENDIX

APPENDIX

Federal Cixcuit Order of

December 12, 1984

Claims Court Order of

August 3, 1984

Claims Court Order of

May 3, 1984

District Court Order of

February 2, 1983

Ninth Circuit Opinion of

November 24, 1982

District Court Order of

June 15, 1981

-35-

41

48

50

57

K.R. St. Clair Thomas H. Pacheco

P.O. Box 1169 Department of Justice

Mount Vernon, Washington 98273 Lands Division

Washington, D.C. 20530

RE: Northwest Commercial Fishermen's Federal

Association, inc. v. United States,

Appeal No. 84-1778

Dear Messrs. Clair and Pacheco:

On December 12, 1984 the court granted the

United States" motion to dismiss the above-captioned

appeal.

Very truly yours,

Helen Kane

Motions Staff Attorney

-36-

In the United States Claims Court

eee KEKEKEKEKEKEKEKE KEKE KR

NORTHWEST COMMERCIAI. FISHERMEN'S

FEDERAL RECOVERY ASSOCIATION,

INC., No. 51-83C

Plaintiff, Notice of appeal;

Fed.R.App.P. 4;

v. jurisdiction; plead-

ing and practice;

THE UNITED STATES, excusable neglect;

attorneys.

Defendant.

eRe EK EKER HEKEEE EE ER

MEMORANDUM ORDER

Judgment was entered in this case on May 3,

1984. Sixty-one days later, July 3, 1984, plain-

tiff's notice of appeal was received by the Clerk

of Court. When the United States is a party, a

notice of appeal must be filed within 60 days of

entry of judgment. Fed.R.App.P. 4(a)(1); Sofarelli

Associates, Inc. v. United States, 716 F.2d 1395,

1396 (Fed. Cir. 1983). This requirement is “manda-

tory and jurisdictional." Browder v. Director,

Department of Corrections, 434 U.S. 257, 264 (1977),

reh'g denied, 434 U.S. 1089 (1978); Sofarelli

Associates, Inc. v. United States, 716 F.2d at 1396.

Therefore, plaintiff's notice of appeal was returned

by the Clerk as untimely the day it was received.

x.

On July 24, 1984, plaintiff moved for an extension

of time to file its notice of appeal. It asserts

that it “tried to file a timely appeal, but failed

to do so due to the time it took for the pleading

to reach the United States Claims Court... in

the United States mail." An accompanying affidavit

shows that plaintiff's counsel of record also en-

trusted another attorney with the responsibility

for filing the notice.

Because the time for filing a notice of appeal

has expired, this court may grant an extension only

upon ‘la showing of excusable neglect." Fed.R.App.P.

4(a)(S); Prestex, Inc. v. United States, 4 C1.Ct.

14, 16 (1983), aff'd mem, No. 84-790 (Fed. Cir.

July 27, 1984). The requirements for establishing

excusable neglect are strict, see Sprout v. Farmers

Insurance Exchange, 681 F.2d 587, 588 (9th Cir. 1982);

Prestex, Inc. v. United States, 4 Cl1.Ct. at 17, and

are satisfied only in “extraordinary cases where

injustice would otherwise result." See Oregon v.

Champion International Corp., 680 F.2d 1300, 1301

(9th Cir. 1982); see also Airline Pilots in the

Service of Executive Airlines, Inc., Counsel No. 2

v. Executive Airlines, Inc., 569 F.2d 1174, 1175

-38-

_

(ist Cir. i978).

Plaintiff's statement that the notice was

untimely because of mail service is insufficient to

establish excusable neglect. When it elected to

send its notice by regular mail from Anacortes,

Washington, to Washington, D.C., on Thursday,

June 28, 1984, plaintiff assumed the risk that the

notice would be received on or before Monday,

July 2, 1984. See Matter of Bad Bubba Racing Pro-

ducts, Inc., 609 F.2d 815, 816 (5th Cir. 1980);

Lejeune v. Midwestern Insurance Co., 197 F.2d 149,

150 (5th Cir. 1952). On occasion, there may be

extraordinary circumstances compelling a different

conclusion, see Fallen v. United States, 378 U.S.

139, 143 (1964), but plaintiff has offered no

reason why it should not be held responsible for

waiting until the last minute to prepare and de-

liver its notice. See Sprout v. Farmers Insurance

Exchange, 681 F.2d at 588; H.L. Smith, Inc. v.

Allied Chemical Corp., 564 F. Supp. 377, 378 (M.D.

La. 1983). It has the burden to demonstrate excu-

sable neglect. See Craig v. Garrison, 549 F.2d 306,

307 (4th Cir. 1977). If the court granted an ex-

tension of time for every notice of appeal untimely

«30

because another was entrusted with filing or the

method of delivery was not efficient, the rule

would be meaningless and its purpose of promoting

finality of judgments would be thwarted. See

Oregon v. Champion International Corp., 680 F.2d

at 1301; Pasquale v. Finch, 418 F.2d 627, 630 (lst

Cir. 1969); Prestex, Inc. v. United States, 4 Cl.Ct.

ee io.

Accordingly, plaintiff's motion for an exten-

sion of time to file its notice of appeal is DENIED.

August 3, 1984

H. ROBERT MAYER

Judge

40

In the United States Claims Court

#eeeeeeeeeeeevweewee®e

NORTHWEST COMMERCIAL FISHERMEN'S

FEDERAL RECOVERY ASSOCIATION, INC.

Plaintiff, No. 51083C

v.

THE UNITED STATES,

Defendant.

KKK KKK KR KEK KR KKK KEKE KK

MEMORANDUM ORDER

This case is before the court on defendant's

motion to dismiss because the claims violate the

Assignment of Claims Act and are barred by the

statute of limitations, and the complaint fails to

state a claim upon which relief can be granted, or

is barred by the doctrines of res judicata and col-

lateral estoppel. The court concludes the complaint

must be dismissed.

This suit has been prosecuted from its begin-

ning in 1979 in the District Court for the Western

District of Washington, the United States Court of

Appeals for the Ninth Circuit, and in this court

by and in the name of plaintiff Northwest Commercial

Fishermen's Federal Recovery Association. Plaintiff

aitiy

sued on claims against the United States assigned

to it by unidentified commercial fishermen, to

which defendant continually objected. Only when

plaintiff filed an amended complaint in this court

on May 24, 1983, did it suggest that "named indi-

vidual plaintiffs bring this claim in their indivi-

dual capacity and alternatively on valid assignment."

This insertion was apparently an afterthought. The

purpose of the amended complaint stated by plain-

tiff's counsel in his affidavit was "so that the

pone could be limited to those remaining after

the hearings already had in this cause" in the dis-

trict and circuit courts, not to add plaintiffs to

the suit.

_ Assuming for purposes of this motion, however,

that plaintiff's amended complaint was sufficient

to bring in the individual owners of the claims,

their participation comes too late. The statute of

limitations requires suit to be brought within six

years of the accrual of a claim against the govern-

ment. 28 U.S.C.§§2401, 2501. Defendant dates the

accrual of a cause of action, if at all, to the mid-

1800's. Plaintiff says it was the date of the

decision in United States v. Washington, 384 F.Supp.

312 (W.D. Wash.), issued on February 12, 1974.

Accepting for a moment plaintiff's dubious propo-

sition that that decision as ultimately confirmed

in Washington v. Washington State Commercial Passen-

ger Fishing Vessel Association, 443 U.S. 658 (1979),

was a significant reinterpretation of the treaties

which resulted in a taking, the new plaintiffs must

have properly joined the suit within six vears of

that date. They cannot be said to have done so

until the amended complaint was filed. Notwith-

standing the generosity of 28 U.S.C. §1631, and

RUSCC 15 and 17(a) generally, the addition of new

parties plaintiff here, if Northwest Commericial

Fishermen's Federal Recovery Association cannot

maintain the action, would give rise to a new suit,

see Summit Office Park v. United States Steel Corp.,

639 F.2d 1278, 1282 (5th Cir. 1981); Custer v.

United States, 622 F.2d 554, 563 ¢(Ct.Cl. 1980),

which would run afoul of the statute of limitations.

This is consistent with United States v.

Shannon, 342 U.S. 288 (1952), rejecting a joinder

of assignors of claims against the government in a

suit brought by the assignee, which plaintiff also

urges on this court. Applying the predecessor

«4S%e

of the current version of the Assignment of Claims

Act, 31 U.S.C. §203, to be codified as amended

September 13, 1982, at 31 U.S.C. §3727(a), the

Court said,

"[T]o hold the Act inapplicable because

all possible claimants are before the

court would be to draw a distinction on

the basis of a purely fortuitous fac-

tor--whether an assignee, in his suit

against the Government can get personal

service on his assignor. Even more im-

portant, this theory that an assignee

can avoid the Act by joining his assig-

nor as a party defendant or unwilling

party plaintiff, would not only subvert

the purposes of the Act but flood the

courts with litigation by permitting

them to recognize assigned claims which

the accounting officers of the Govern-

ment would be obligated to reject.

Since only a court can give the binding

adjudication of the rights of all

parties to the transaction--United

States, assignor, and assignee--which

it is claimed prevents any possible

prejudice to the Government, the courts

would be applying a laxer rule under

the statute than would the accounting

officers. Such was not the intention

of Congress....We do not believe the

Act can be = 2, gente by the use of any

a contrivance." 342 U.S.

at ;

The Act specifies the basis on which claims

against the government may be assignea. It has

been violated here and plaintiff may noi premise

///

///

willie

its suit on the violation. No may it rescue the

suit through the procedural devices of amendment,

joinder, or substitution. Plaintiff was alerted

to this deficiency as early as defendant's answer

in the district court and chose not to correct it.

The individual assignors violated the Act the

same as plaintiff. They cannot now escape the

bar of the statute of limitations.

Plaintiff's reliance on RUSCC 17(b) to bring

this suit because it is a non-profit corporation,

authorized to sue or be sued in its corporate

name under the laws of Washington, is similarly

unavailing. The court does not question its

capacity to sue or attain standing sufficient to

represent the interest of its members generally.

But none of the cases it cites support the propo-

sition that it can maintain a monetary ciaim

against the government in violation of the Assign-

ment of Claims Act. There is no question, for

example, that the interests of the assignors here

could properly be apresented by plainciff in the

suits challenging the treaties, as indeed similar

Organizations were permitted to do. [It is quite

ancther matter, however, for plaintiff to collect

ehBe

claims against the United States in violation of

the Act and bring suit on them.

These deficiencies require that the case be

dismissed, but it is not inappropriate for the

court to note its agreement with the district

court on the substance of the claim, even though

the Ninth Circuit reluctantly vacated that portion

of the judgment as beyond its jurisdiction. A

taking claim could only be sustained by reversing

the decisions in the district court and the Su-

preme Court of the United States in United States

v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974),

aff'd, 520 F.2d 679 (9th Cir. 1975), and Washing-

ton v. Washington State Commercial Passenger

Fishing Vessel Association, 443 U.S. 658, respec-

tively, which of course this court has no authori-

ty to do. Those judgments are binding on the

proposed individual plaintiffs here, see Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979),

and they were represented in that litigation.

Washington v. Washington State Commercial Passen-

ger Fishing Vessel Association, 443 U.S. at 692

n.32; United States v. Washington, 459 F. Supp.

1020, 1128 (W.D. Wash. 1978).

~4h-

Those cases did not result in the taking of

any property of the assignors in favor of the

Indians; they merely refined the interpretation

of the treaties which had long been foretold.

See: Washington v. Washington State Commercial

Passenger Fishing Vessel Association, 443 U.S. at

679, 685. If the non-Indian commercial fishermen

earlier had larger harvests of fish, it was be-

cause they had enjoyed a share of the catch belong-

ing to the Indians by treaties. The reordering of

entitlement between Indian and non-Indian commer-

cial fishermen in accordance with the treaties

cannot be considered a taking from the non-Indians,

but a righting of the balance the treaties re-

quired. If these individuals believe state li-

censing had given them a greater right, of which

they have now been deprived, they should look to

the state. \

Accordingly, it is ORDERED that defendant's

motion to dismiss is GRANTED and the case will be

dismissed with costs to the prevailing party.

See 28 U.S.C. §2412(a); RUSCC 54(d).

May 3, 1984

H. ROBERT MAYER, Judge

yt oe

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NORTHWEST COMMERCIAL

FISHERMEN'S FEDERAL

RECOVERY ASSOCIATION,

Plaintiff, NO. C79-112SR

ORDER TRANSFERRING CAUSE

TO UNITED STATES CLAIMS

COURT

Vv.

UNITED STATES OF

AMERICA,

Defendant.

a 0 OS SS SS SY SY

PLAINTIFF asks this court to transfer this

case to the United States Claims Court in accor-

dance with the decision rendered by the Ninth

Circuit on the appeal of this case. The court

has reviewed the memoranda in support and in oppo-

sition to this motion.

IT IS NOW, THEREFORE, ORDERED that plain-

tiff's motion to transfer is GRANTED. The Clerk

shall transfer the above-entitled case to the

United States Claims Court.

The Clerk of the Court is directed to send

///

///

///

///

-48-

uncertified copies of this Order to counsel of

record.

DATED at Seattle, Washington this 2nd day of

February, 1983.

A ; TH: I}

UNITED STATES DISTRICT JUDGE

Le ae ate oteaee ee

-49-

|

:

:

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

- NORTHWEST COMMERCIAL

_ FISHERMEN's FEDERAL

- RECOVERY ASSOCIATION,

Plaintiff-Appellant,

NO. CA 81-3490

-vs DC NO. C-79-112R

UNITED STATES OF AMERICA,

Defendant-Appellee. MEMORANDUM

we SS 8

Appeal from the United States District Court

for the Western District of Washington

Honorable Barbara J. Rothstein, Presiding

Argued and Submitted July 8, 1982

BEFORE: WRIGHT, KILKENNY and CANBY, Circuit Judges

This case is an offshoot of two recent cases

involving disputes over Indian fishing rights.

United States v. Washington, 384 F. Supp. 312

(W.D. Wa. 1974, aff'd, 520 F.2d 676 (9th Cir.

1975), cert. denied, 423 U.S. 1086 (1976); Wash-

ington v. Washington State Commercial Passenger

Fishing Vessel Association, 443 U.S. 658 (1979).

In those cases it was decided that under the terms

of certain treaties entered into by the United

States, Treaty Indians are entitled to the oppor-

tunity to take up to fifty percent of the harves-

-50-

eel

|

table number of anadromous fish at the Indians'

usual and accustomed off-ceservation fishing

grounds. The effect of those decisions was pro-

portionally to reduce the amount of fish availeble

for non-treaty commercial fishermen. Appellant is

the assignee of the legal claims of a number of

non-treaty commercial fishermen. It sued the

federal government for interference with the rights

of those fisherment. The district court, having

concluded that appellant had failed to raise any

genuine issue of material fact and that the United

States was entitled to judgment as a matter of

law, granted the government's motion for summary

judgment.

Although the complaint alleged numerous

causes of action, on appeal appellant challenges

the entry of summary judgment only as to two

claims:

l. That the non-treaty commercial fisher-

men's property rights, acquired by virtue of their

having obtained state fishing licenses, have been

taken (or at least diminished in value) by the

United States without just compensation in viola-

tion of the fifth amendment; and

fin

2. That in the course of the United States

v. Washington litigation the government negligent-

ly, willfully and knowingly misrepresented to the

court that the treaty Indians had not previcusly

been fully compensated for the value of their

fhsing rights prior to the decision in that case.

The "Taking" claim

The district court held that as a matter of

law the fishermen had no private property right

to take fish from the waters of the state of

Washington. The court based its decision on

Washington Kelpers Association v. Washington, 81

Wa. 2d. 410, 502 P.2d 1170 (1972), cert. denied,

411 U.S. 982 (1973), wherein the Washington

Supreme Court held that the fish are owned by the

State in its sovereign capacity. The district

court held that because no property right existed

no compensation was required. As an alternative

basis of decision the court held that the rights

of the commercial fishermen had been litigated

and determined in United States v. Washington,

supra, and appellant was collaterally estopped

from litigating the rights of non-treatv fishermen

as licensees of the State of Washington.

o$2-

Despite the compelling nature of these argu-

ments we reluctantly conclude that the taking por-

tion of the district court's judgment must be va-

cated. Although the complaint did not recite an

amount of damages sought, in its answer to inter-

rogatories appellant stated that its claim ap-

proaches $63,000,000 and that each of the indivi-

dual fisherman's claims was estimated at $24,000.

The jurisdiction of the district courts is limited

by the doctrine of sovereign immunity. United

States v. Testan, 424 U.S. 392, 399 (1976). Con-

gress has waived that immunity, however, and with

certain exceptions not relevant here, it has di-

rected that any claim "against the United States

founded either upon the Constitution, or any Act

of Congress" be brought in the Court of Claims,

28 U.S.C. § 1491. The district courts are granted

concurrent jurisdiction with the Court of Claims

but only as to .suits for less than $10,000. Inas-

much as the claim presented far exceeds the $10,000

limit contained in § 1346(a)(2), the jurisdiction

of the Court of Claims is exclusive. The district

court lacked jurisdiction to consider the merits

of appellants' taking claim, see Laguna Hermosa

| -$3-

Corp. v. Martin, 643 F.2d 1376, 1378-9 (9th Cir.

1981), and that portion of the court's judgment

must be vacated. We decline to grant here appel-

lants' motion to transfer this portion of the

case to the Court of Claims, but remand the mat-

ter to the district court for disposition in ac-

cordance with 28 U.S.C. § 1406(c).

The 'Tort'' Claim

The district court granted the Government's

motion for summary judgment as it pertained to

appellant's tort claim on three alternative

grounds. The court held that the claim was time

barred under 28 U.S.C. § 2401(b), that appellant

had failed to take the required step of seeking

an administrative remedy under 28 U.S.C. § 2675(a)

and, finally, that the Government was entitled to

a judgment as a matter of law on the merits of

the claim.

We affirm on the ground that appellants have

failed to comply with 28 U.S.C. §2675(a). Appel-

lants concede that they made no administrative

claim whatever, and contend that for tortious con-

duct of a lawsuit there is no administrative agen-

cy to which they could address their claim. They

-54-

offer no authority in support of that contention,

and we find it unpersuasive. Appellants’ claim

is based upon allegedly tortious conduct by offi-

cials of the Department of Justice, and that would

be the appropriate agency from which to aout ad-

ministrative relief. 1/ Appellants did not do

so. Failure to seek such a remedy necessitates

dismissal. House v. Mine Safety Appliances Co.,

573 F.2d 609, 617 (9th Cir.) cert. denied, 439

U.S. 862 (1978).

Our conclusion that appellants did not comply

with 28 U.S.C. §2675 (a) makes it unnecessary for

us to consider the other promising grounds upon

| which the district court based its decision.

Affirmed in part, vacated in part and remanded for

further proceedings.

att«

FOOTNOTE 1:

Part of appellants’ difficulty in determining

the proper place to make an administrative claim

may arise from the peculiar nature of that claim.

Appellants’ allegation might be thought to raise

questions of legal malpractice, but the suit com-

plained of was not brought on their behalf, and

was successful in outcome. Appellants’ claim can

probably be most accurately characterized as one

for malicious prosecution. See Tinkoff v. United

States, 211 F.2d 890 (7th Cir. 1954). That charac-

terization creates severe problems for appellants,

because claims for malicious prosecution fall

within an express exception to the Federal Tort

Claims Act, unless the claim arises from the act

or omission of an investigative or law enforce-

ment officer as defined by the Act. 28 U.S.C. §

2680(h). Actions falling within the exception

are barred by sovereign immunity.

aSéa

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NORTHWEST COMMERCIAL

FISHERMEN'S FEDERAL

RECOVERY ASSOCIATION, NO. €79-112SR

Plaintiff, ORDER GRANTING DEFEN-

DANT'S MOTION FOR

Vv. SUMMARY JUDGMENT

UNITED STATES OF

AMERICA,

Defendant.

ee

THIS MATTER comes before the Court on the

parties’ cross-motions for summary judgment.

Having reviewed the parties' motion, briefs, and

supporting memoranda, and being fully advised,

the Court finds and rules as follows:

BACKGROUND :

This case is an offshoot of two recent cases

involving disputes over Indian fishing rights.

United States v. Washington, 384 F. Supp. 312 (W.

D. Wash. 1974), aff'd 520 F.2d 676 (9th Cir.

11975), cert. den. 423 U.S. 1086 (1975), rehearing

denied 424 U.S. 978 (1976); State of Washington v.

Washington State Commercial Passenger Fishing

Vessel Association, 443 U.S. 658 (1979). In these

cases it was decided that, under the terms of

=$Pe

treaties entered into by the United States, treaty

Indians are entitled to the opportunity to take up

to 50% of the harvestable number of anadromous

fish at their usual and accustomed off-reservation

fishing grounds. The effect of these decisions

was to proportionally reduce the amount of fish

available for non-treaty commercial fishermen.

Plaintiff in this case is the assignee of the

legal claims of a number of non-treaty fishermen.

As such, plaintiff is suing the federal government

for interference with the rights of non-treaty

fishermen. The suit seeks relief on five grounds,

alleging that:

(1) Plaintiff's property rights, acquired

through state fishing licenses, have been taken,

or at least diminished in value, by defendant

without just compensation in violation of the

Fifth Amendment of the United States Consitution;

(2) A special burden, equivalent to a dis-

criminatory tax violating Article 1, sections 8 &

9 and Article 4 of the United States Constitution,

} has been imposed on plaintiff by the defendant's

treaties with the Indians;

(3) The rights of plaintiff to harvest fish

-58-

me ere ee O

in common with treaty-Indians under defendant's

treaties have not been properly protected, thus

violating Article 4 and Article 6 of the United

States Constitution; +

(4) Defendants negligently, willfully and

knowingly misrepresented that the Indians had not

previously been fully compensated for the value

of their fishing rights prior to the decision in

United States v. Washington, supra; and

(5S) Defendant's conduct was a conspiracy

that deprived plaintiff of its civil rights in

violation of 42 U.S.C. § 1985 and 18 U.S.C. § 241

FINDINGS

Summary judgment is proper when there is no

genuine issue of any material fact or where

viewing the evidence and the inferences which may

be drawn therefrom in the light most favorable to

the adverse party, the movant is clearly entitled

to prevail as a matter of law Great Western

l. This claim does not appear to be a separate

cause of action, but rather a combination of the

“taking” allegation in the first cause of action

and the "negligence" allegation in the fourth

cause of action. For the purposes of this Order,

this claim will be treated as incorporated into

plaintiff's second and fourth causes of action

and will not be addressed separately.

-59.

Been Es OS A he A LORD NE NE RELI OY cy MRS

A 8 NR ie eg iti

Bank & Trust v. Kotz, 532 F. 2d 1252, 1254 (9th

Cir. 1976). If the movant party satisfies the

initial burden of showing the absence of a genuine

issue of material fact, then the burden shifts to

the opponent to come forward with specific facts

showing that there remains a genuine issue for

trial. Fed. R. Civ. P. 56(e); Neely v. St. Paul

Fire & Marine Insurance Co., 584 F.2d 341 (9th

Cir. 1978). The opponent must present these facts

in evidentiary form; pleadings alone cannot be re-

lied upon, and the evidence presented must be

significantly probative as to any fact claimed to

be in dispute. Securities & Exchange Comm'n. v.

Murphy, 626 F.2d 633 (9th Cir. 1980).

Applying this standard to the case at hand,

defendant is entitled to summary judgment in its

favor.

' 1. No Property Rights Have Been Taken

Plaintiff's taking claim fails as a matter of

law, for there is no vested property right to take

tish embodied in a commercial fishing license.

Washington Kelpers Association v. State of Wash-

inton, 81 Wn.2d 410, 502 P.2d 1170 (1972). No

property has been taken, therefore, no compensa-

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tion is required.

As an alternative ground for summary judg-

ment, the Court notes that plaintiff is collater-

ally estopped from litigating the rights of non-

Indian fishermen as licensees of the State of

Washington. The doctrine of collateral estoppel

precludes the relitigation of issues that were

actually litigated and necessarily determined in

a prior suit. Parkland Hosiery Co. v. Shore,

439 U.S. 322, 326, (1979). The rights of commer-

cial fishermen was an issue litigated and neces-

sarily determined in United States v. Washington,

supra, and this decision was specifically found

to be binding on all citizens of the State of

Washington and on all commercial fishermen.

Unitrzd States v. Washington, 459 F. Supp. 1020,

| 1128-29 (W.D. Wash. 1978). See also State of

Washington v. Washington State Commercial Passen-

ger Fishing Vessel Association, 443 U.S. at 692,

ae 2

2. No Discriminatory Tax Has Been Imposed

No additional burdens have been imposed on

plaintiff by the decision in United States v.

Washington or by the Indian treaties. The fishing

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tease chs REED A Ak tat is a ll

rights of the Indians vnder the treaties are

rights that were reservec by them. United States

v. Washington, 384 F. Supp. at 407. No new rignts

were granted to treaty Indians. Therefore, the

treaties did not create or impose any tax or spe-

cial burden upon non-treaty individuals.

3. Plaintiff's Negligence Claims Are Barred

Plaintiff alleges that defendant was negli-

gent in its presentment of the case in United

States v. Washington. This claim is barred, how-

ever, by the applicable statute of limitations,

that states:

a tort claim against the United

States shall be forever barred

unless it is presented in writing

to the appropriate Federal agency

within two years after such claim

accrues....

28 U.S.C. § 2401(b).

Viewing the facts most favorably to the plaintiff,

this claim accrued on February 12, 1974, the date

of the District Court decision in United States

v. Washington. See United States v. One 1961 Red

Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir.

1972). However, this claim was filed on January

29, 1979, long after the two year limitation peri-

od had passed.

\" .

This claim is also barred by plaintiff's

failure to seek an administrative remedy. Section

2675 of Title 28 of the United States Code states:

(a) An action shall not be insti-

tuted upon a claim against the

United States for money damages

for injury or loss of property

or personal injury or death caused

by the negligent or wrongful act

or omission of any employee of

the Government while acting with-

in the scope of his office or enm-

ployment, unless the claimant

shall have first presented the

claim to the appropriate Federal

agency and his claim shall have

been finally denied by the agency

in writing by certified or regi-

stered mail.

| This requirement of presentation of a claim to the

' appropriate Federal agency is jurisdictional in

| Nature and cannot be waived. House v. Mine Safety

| Appliances Co., 573 F.2d 609, 617 (9th Cir. 1978)

| cert. den. sub nom. Silver Dollar Mining Co. v.

/ PVO International,Inc. 439 U.S. 862 (1978). No

| administrative filing was made in this case.

In addition, the merits of plaintiff's negli-

) gence claim fail as a matter of law. Plaintiff

alleges that the treaty Indians were compensated

previously for all their fishing rights by the

United States Indian Claims Commission, and that

defendant negligently and knowingly failed to

afta

disclose this fact in United States v. Washington.

However, the evidence plaintiff offers to show

prior compensation is not significantly probative

to establish a genuine factual issue. Viewed as

a whole, the evidence supports defendant's posi-

tion that the Indians were compensated solely for

ceding the. right to use and possess their land,

and they did not surrender, no were they compensa-

ted for, the right to cross the land and fish at

all usual and accustomed grounds. Thus, there is

no probative evidence of negligent presentment of

the case on this issue.

Plaintiff offers no proof of other instances

of defendant's negligence in the presentation of

this case.

4. The Statutory Civil Rights Claims

The plaintiff's fifth cause of action alleges

violations of 18 U.S.C. § 241 and 42 U.S.C. §

1985. Pliantiff's allegation under 18 U.S.C. §241

must fail, for a criminal statute is irrelevant to

a claim for civil recovery. United States ex rel.

Savage v. Arnold, 403 F. Supp. 172 (E.D. Penn.

1975).

Courts disagree as to whether 42 U.S.C. §

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9 LL. ALOT OLD LIE DLL SLO EG iitncitieees

1985 applies to the United States. Compare,

e.g., Alvarez v. Wilson, 431 F. Supp. 136, 142

(N.D. Ill. 1977) (holding that federal officers

may be sued under § 1985(1) and § 1985(3), if the

complaint alleges racial discrimination) with

Moore v. Schlesinger, 384 F. Supp. 163, 165 (D.

Col. 1974) (holding that federal officers acting

under color of federal law are immune from suit

under this statute). This Court need not decide

this issue because the plaintiff has failed to

state a claim under the terms of § 1985. The

only conceivably relevant provisions of §1985 are

the portions: of sections 2 and 3 that prohibit

conspiracies to deprive any person or class of

persons of the equal protection of the laws. The

plaintiff has failed to state a factual or legal

basis for such a claim in this case. There has

been no showing that the defendant United States

| or any federal officials acted improperly in any

. of the court proceedings at issue. Furthermore,

the enforcement of Indian treaties does not vio-

late equal protection principles. Washington v.

Fishing Vessel Ass'n., 443 U.S. at ad Rs Bee

For the foregoing reasons, the Court finds

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and rules that no geruine issue of material fact

exists and as a matter of law defendant's morion

for summary judgment is GRANTED as to each and

every one of plaintiff's claims. Plaintiff's mo-

tion for summary judgment necessarily is DENIED.

IT IS SO ORDERED.

The Clerk of the Court is directed to send

uncertified copies of this Order to all counse.

of record.

DATED at Seattle, Washington, this 12th day

of June, 1981.

BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE

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