Ellen Moose v. United States of America

Appellants are Indian children, members of the Southern Paiute tribe, who assert that the federal government has misman *1279 aged their share of a fund Congress appropriated in 1965 to satisfy a judgment in favor of the tribe. Appellants say that the government at times paid no interest on their share of the fund, at other times paid interest at less than the maximum allowable rate, and since 1972 has allowed a bank to invest the money in securities not guaranteed as federal law requires. Appellants characterize this conduct as a breach of trust obligations for which damages can be awarded under the Tucker Act, 28 U.S.C. § 1346 (a)(2). 1 The government’s reply is that the fund in question is not held in trust for the minors, so that no breach of trust could have occurred and no Tucker Act jurisdiction exists. The district court agreed and dismissed appellants’ claim for damages. It also dismissed the related claim for mandamus relief, holding that no ministerial duties were owed to appellants. Appellants appeal from the dismissal of their complaint. Because we conclude that jurisdiction does exist over appellants’ claim for damages, we reverse and remand.

FACTS

In January 1965,…

concurring and dissenting:

While I concur fully in the majority’s conclusion that the dismissal of plaintiffs’ requests for mandamus and injunctive relief was appropriate, I dissent from its conclusion that Tucker Act jurisdiction is present in this case.

The sole issue on this appeal is whether the United States has waived sovereign immunity to suit. Since the Tucker Act, upon which this suit is based, is “only a jurisdictional statute,” and “does not create any substantive right enforceable against the United States for money damages,” United States v. Testan, 424 U.S. 392, 398 , 96 S.Ct. 948, 953 , 47 L.Ed.2d 114 (1976), it is necessary to look beyond the Tucker Act’s grant of jurisdiction to find a separate statute that “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Id. at 400 , 96 S.Ct. at 954 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 [Ct.Cl.1967]). It is that statute that provides the necessary waiver of sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 , 100 S.Ct. 1349, 1352 , 63 L.Ed.2d 607 (1980).

I am in full agreement with the proposition that “a legislative…

674 F.2d 1277 Ellen MOOSE, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees. No. 80-4373. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 14, 1981. Decided April 19, 1982. Donald K. Pope, Reno, Nev., for plaintiffs-appellants. Maria Iizuka, Washington, D. C., argued, for defendants-appellees; B. Mahlon Brown, U. S. Atty., Reno, Nev., on brief. Before PREGERSON and BOOCHEVER, Circuit Judges, and HALBERT, District Judge. * PREGERSON, Circuit Judge: 1 Appellants are Indian children, members of the Southern Paiute tribe, who assert that the federal government has mismanaged their share of a fund Congress appropriated in 1965 to satisfy a judgment in favor of the tribe. Appellants say that the government at times paid no interest on their share of the fund, at other times paid interest at less than the maximum allowable rate, and since 1972 has allowed a bank to invest the money in securities not guaranteed as federal law requires. Appellants characterize this conduct as a breach of trust obligations for which damages can be awarded under the Tucker Act, 28 U.S.C. § 1346 (a)(2). 1 The government's reply is that the…