A. Class Certification
Plaintiffs have moved for an order pursuant to Rule 23(c) (1) of the Federal Rules of Civil Procedure certifying this case as a class action. The purported class would include Indians and tribes with pre-1966 claims identified by the BIA or its contractors, or that reasonably could have been identified under the 2415 Claims Program, which claims defendants have decided not to litigate or otherwise resolve, as required by P.L. 96-217, before the running of the statute of limitations.
Plaintiffs contend that a class action is properly maintainable under Rules 23(a) and 23(b) (2).
Defendants object to class certification on four specific grounds: (1) the class as defined is vague and its members are not ascertainable; (2) the representatives of the class have no standing; (3) certification would unfairly bind all potential claimants if plaintiffs lose the case; and (4) defendants have not acted or refused to act on grounds generally applicable to the class.
While we feel that plaintiffs' definition needs slight refinement, we conclude that they have met the necessary prerequisites to the maintenance of a class action.
Defendants initially contend that the purported class is indeterminate because, in order to ascertain whether or not a pre-1966 Indian claim has been "validly resolved" consistent with P.L. 96-217, the Court will have to look at the facts and circumstances surrounding the disposition of each and every claim.
When case-by-case determinations of fact must be made, defendants argue, class certification is not appropriate. See Gordon v. Aetna Life Insurance Company, 151 U.S. App. D.C. 391, 467 F.2d 717, 720 (1971). Plaintiffs contend, however, that defendants' conduct need only be examined as it applies generally to the class of Indian claimants sought to be represented. We agree with plaintiffs.
The very narrow question before us is whether defendants have complied with Section 2 of P.L. 96-217 as to those claims deemed inappropriate by defendants for litigation. The relevant class, therefore, consists of those Indians and tribes whose 2415 claims have been rejected for litigation and for which no legislative proposals have been submitted to Congress. The members of that class can easily be ascertained from BIA records in conjunction with the Sampsel Report. We need not review the merits of each claim; we need only look for the salient characteristic i.e. no litigation coupled with no legislative proposal. Here, as in Rochford, supra, the contours of the class are defined by defendants' own conduct, and the class is definite.
Turning to the explicit requirements of Rule 23(a), plaintiffs must satisfy all four: viz, numerosity, commonality of questions of law or fact, typicality of claims or defenses, and adequacy of representation. E.E.O.C. v. Printing Industry, Etc., 92 F.R.D. 51, 53 (D.D.C.1981).
There can be no question that the first requirement, numerosity, is met. Defendants have rejected the vast majority of some 17,000 identified claims for litigation and legislative resolution. Thus, it would be impracticable to join thousands of claimants from across the country in one lawsuit.
2. Common Question
Defendants contend that there are no common questions of law or fact applicable to the purported class. They maintain that each claim is unique and their conduct as to it must be judged accordingly. As pointed out above, however, there is a common legal issue -- the meaning of Section 2 of P.L. 96-217. The relevant factual inquiry, generally applicable, is whether a particular claim has been disposed of in accordance with the proper construction of that statute. Thus, plaintiffs have met the second requirement of Rule 23(a).
For similar reasons, we conclude that plaintiffs have also met the typicality requirement. This Court (Richey, J.) succinctly stated in Printing Industry:
[a] plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory. 1 Newberg, Class Actions § 1115f at 191 (1977).
Id. at 54. Here, the course of conduct complained of is defendants' failure to submit legislative proposals for those pre-1966 Indian claims they have deemed improper for litigation. There is no dispute that, with the exception of the representatives with OAA claims, the named plaintiffs have claims for which no legislative proposals have been submitted, and no litigation has been initiated. We are convinced that these claims are typical of the class.
4. Adequacy of Representation
This depends on (a) whether plaintiffs' counsel is experienced and qualified, and (b) whether plaintiffs' interests are coextensive with those of the class. Simpson v. Miller, 93 F.R.D. 540 (N.D.Ill.1982). Defendants contend that the named class representatives are inadequate, in that they individually lack standing since their claims have been "validly resolved."
This argument begs the ultimate question except as to the representatives who have OAA claims. Those representatives have arguably secured the relief sought here under P.L. 96-217, in that a legislative proposal to resolve their claims has been submitted. As to them, accordingly, this particular case is moot and they have no standing. However, almost all of the other named plaintiffs have claims subject to the statute of limitations in 28 U.S.C. § 2415 which have neither been slated for litigation nor legislative treatment. Consequently, those Indians and tribes have interests which are coextensive with the interests of the entire class, and hence are adequate representatives.
In addition to the factors discussed above, Rule 23(b) (2) requires plaintiffs to show that defendants have acted or failed to act on grounds generally applicable to the class. Defendants' refusal to submit legislative proposals for those 2415 claims they deem inappropriate for litigation is a refusal to act generally applicable to the class, and if improper, it justifies mandatory injunctive relief with respect to the class as a whole.
For all the foregoing reasons, we conclude that plaintiffs have shown sufficient justification for certifying this matter as a class action. Accordingly, this case will be certified as a class action on behalf of all Indians and tribes with pre-1966 claims subject to 28 U.S.C. § 2415 that have been identified by the BIA, the federal defendants, or any of their contractors, and that have not been or will not be litigated prior to December 31, 1982, and that have not been the subject of legislative proposals submitted to Congress.
B. Justiciability and Jurisdiction
The federal defendants assert that plaintiffs are asking this Court to review discretionary decisions of Executive agencies in contravention of the well-settled principle that such decisions are non-reviewable because a political question is presented. See Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318,, 33 L. Ed. 2d 154 (1972) (federal courts should not be "continuing monitors of the wisdom and soundness of Executive action . . ."). Plaintiffs counter that P.L. 96-217 is unambiguous on its face i.e. Section 2 mandates that the Secretary of the Interior propose legislative solutions for those claims that are deemed not suitable for litigation and that, accordingly, we need only decide whether defendants have complied with the Congressional mandate, signed into law by the Executive.
Whether the resolution of a matter violates separation of powers principles, thereby making it a non-justiciable political question, must be determined under the oft-cited criteria outlined in Baker v. Carr, supra:
[a] textually demonstrable constitutional commitment of the issue to a coordinate political department, or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Id. at 217, 82 S. Ct. at 710; see also, Consumer Energy, Etc. v. F.E.R.C., 218 U.S. App. D.C. 34, 673 F.2d 425, 452 (D.C.Cir.1982).
Defendants claim that: (a) the decisions plaintiffs challenge are committed by the Constitution to Congress and the Executive; (b) there are no judicially manageable standards for resolving the questions presented; and (c) deciding the questions plaintiffs raise would involve policy determinations of a kind most appropriate for the non-judicial branches of government. We find none of these arguments persuasive.
As we have previously stated, our review is based exclusively on P.L. 96-217 and the requirements imposed by Section 2 thereof. Defendants contend that they have fully complied with Section 2, but plaintiffs challenge the federal defendants' construction of that statute. Thus, we are confronted with a classic judicial problem of statutory construction. The narrow question presented is whether Congress and the President meant to limit defendants' exercise of discretion to certain alternatives.
This issue has clearly not been committed by the Constitution to coordinate branches of government.
Similarly, we are not lacking in discoverable, manageable standards. As in any case involving statutory construction, we have the plain language of the statute and its legislative history to guide our interpretation of its requirements. Defendants' second argument, therefore, fails to raise a Baker factor.
Lastly, we are not called upon, as defendants contend, to judge the wisdom and soundness of policy determinations most appropriately made by the non-judicial branches of government. Rather, we need only determine what those policy considerations were, as embodied in P.L. 96-217. In doing so, we certainly do not express a lack of respect for the coordinate branches, for "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 178, 2 L. Ed. 60 (1802).
In sum, we conclude that this case only involves traditional statutory construction, a classic judicial function, and, therefore, no political question is present.
Plaintiffs rely on 28 U.S.C. §§ 1331 (federal question), 1361 (mandamus) and 1362 (Indian tribes), as their grounds for establishing subject matter jurisdiction in this Court. The cause of action, they contend, arises under P.L. 96-217, the APA and the due process clause of the 5th Amendment. Defendants do not address the jurisdictional bases directly, but, rather, contend that plaintiffs do not have standing within the parameters of Article III to assert their cause of action.
Because we find jurisdiction in the statutory claims, we need not address the constitutional issues. We will, however, treat the questions of jurisdiction and standing separately in our discussion.
To determine whether plaintiffs have stated a claim that arises under Section 2 of P.L. 96-217 and thereby confers jurisdiction through §§ 1331 and 1362 as well as a claim that properly seeks injunctive relief in the nature of mandamus, whose jurisdictional root is § 1361, we must look to the complaint and the language of P.L. 96-217. The test to be applied was well stated in Carpet, Linoleum and Resilient Tile, Etc. v. Brown, 656 F.2d 564, 567 (10th Cir.1981):
If dereliction in discharging a mandatory duty is alleged and if that allegation is not patently frivolous, both mandamus and injunctive relief are available . . . If, however, defendants have been accorded sufficient discretion to act as they have, the courts may not direct them to act otherwise, and dismissal for lack of jurisdiction is appropriate.