United States v. Mitchell

Justice Powell, with whom Justice Rehnquist and Justice O'Connor join, dissenting.

The controlling law in this case is clear. Speaking for the Court in United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell I), Justice Marshall reaffirmed the general *229principle that a cause of action for damages against the United States “ ‘cannot be implied but must be unequivocally expressed.’” Id., at 538 (quoting United States v. King, 395 U. S. 1, 4 (1969)). See United States v. Hopkins, 427 U. S. 123, 128 (1976) (“specific command of statute or authorized regulation”); Lehman v. Nakshian, 453 U. S. 156, 170 (1981) (Brennan, J., dissenting). Where, as here, a claim for money damages is predicated upon an alleged statutory violation, the rule is that the statute does not create a cause of action for damages unless the statute “ ‘in itself. . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” United States v. Testan, 424 U. S. 392, 402 (1976) (quoting Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1008, 1009 (1967)). See, e. g., Army & Air Force Exchange Service v. Sheehan, 456 U. S. 728, 739-740 (1982) (“Testan [held] that the Tucker Act provides a remedy only where damages claims against the United States have been authorized explicitly”) (emphasis added); id., at 739 (damages remedy available where the regulations “specifically authorize awards of money damages”); id., at 741 (reaffirming that an action for damages under the Tucker Act may not be premised upon “regulations . . . which do not explicitly authorize damages awards”). In sum, whether the United States has created a cause of action turns upon the intent of Congress, not the inclinations of the courts. See United States v. Shaw, 309 U. S. 495, 500 (1940) (“specific statutory consent”); Munro v. United States, 303 U. S. 36, 41 (1938) (“only by permission”).

Today, the Court appears disinterested in the intent of Congress. It has effectively reversed the presumption that absent “affirmative statutory authority,” United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 514 (1940), the United States has not consented to be sued for damages. It has substituted a contrary presumption, applicable to the conduct of the United States in Indian affairs, *230that the United States has consented to be sued for statutory-violations and other departures from the rules that govern private fiduciaries. I dissent from the Court’s departure from long-settled principles.

The Court does not — and clearly cannot — contend that any of the statutes standing alone reflects the necessary legislative authorization of a damages remedy. None of the statutes contains any “provision . . . that expressly makes the United States liable” for its alleged mismanagement of Indian forest resources and their proceeds or grants a right of action “with specificity.” Testan, supra, at 399, 400. Indeed, nothing in the timber-sales statutes, 25 U. S. C. §§406, 407,1 466,2 the road and right-of-way statutes, §§318a, 323-325,3 *231or the interest statute, § 162a,4 addresses in any respect the institution of damages actions against the United States. Nor is there any indication in the legislative history of the statutes that Congress intended to consent to damages actions for mismanagement of Indian assets by enacting these provisions.5 The Court does not suggest otherwise.

The Court for the most part rests its decision on the implausible proposition that statutes that do not in terms create a right to payment of money nonetheless may support a damages action against the United States. This view simply cannot be reconciled with the decisions in Testan and *232Mitchell I. A nonmonetary duty,6 without more, is insufficient to overcome the “presumption” that Congress has not consented to suit for money damages. See Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927).

This Court has had occasion in recent cases to emphasize that congressional intent is the ultimate standard in determining whether a private right of action should be inferred from a statute that does not, in terms, provide for such an action.7 Those cases are instructive, for here, too, the “ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law.” Touche Ross & Co. v. Redington, 442 U. S. 560, 578 (1979). As we recognized in Testan, courts are not free to dispense with “established principles” requiring explicit congressional authorization for maintenance of suits against the United States simply “because it might be thought that they should be responsive to a particular conception of enlightened governmental policy.” 424 U. S., at 400. See Shaw, 309 U. S., at 502. The Court today adduces no “evidence that Congress *233anticipated that there would be a private remedy.” California v. Sierra Club, 451 U. S. 287, 298 (1981).

The Court defends its departure from our precedents on the ground that the statutes and regulations upon which respondents rely need not be “construed in the manner appropriate to waivers of sovereign immunity.” Ante, at 219. The Court in effect is overruling Mitchell I sub silentio, for as its discussion on the Tucker Act makes clear, see ante, at 216-219, we there at least “accepted the government’s . . . claim that a strict standard of construction, applicable to deciding whether Congress had enacted a waiver of sovereign immunity, should be applied in interpreting substantive legislation for the benefit of Indian people.” Hughes, Can the Trustee be Sued for its Breach? The Sad Saga of United States v. Mitchell, 26 S. D. L. Rev. 447, 473 (1981). We expressly held that the General Allotment Act at issue in Mitchell I “does not unambiguously provide that the United States has undertaken full fiduciary responsibilities.” 445 U. S., at 542 (emphasis added). Cf. Army & Air Force Exchange Service v. Sheehan, 456 U. S., at 739 (“explicitly rejecting] the argument that ‘the violation of any statute or regulation . . . automatically creates a cause of action against the United States for money damages’”) (quoting Testan, 424 U. S., at 401). The Court hardly can view the statutes here as “unambiguously” imposing trust duties on the Government.

HH H-1

The Court makes little or no pretense that it is following doctrine heretofore established. Without pertinent analysis, it simply concludes: “Because the statutes and regulations at issue in this case clearly establish fiduciary obligations of the Government in the management and operation of Indian lands and resources, they can fairly be interpreted as mandating compensation by the Federal Government for damages sustained.” Ante, at 226. This conclusion rests on *234two dubious assumptions. First, the Court decides that the statutes create or recognize fiduciary duties. It then reasons that because a private express trust normally imports a right to recover damages for breach, and because injunctive relief is perceived to be inadequate, Congress necessarily must have authorized recovery of damages for failure to perform the statutory duties properly. The relevancy of the first conclusion is questionable, and the other departs from our precedents, chiefly Testan and Mitchell I.

The Court simply asserts that the statutes here “clearly establish fiduciary obligations.” Ante, at 226. See also ante, at 225 (“a fiduciary relationship necessarily arises”). I agree with the dissent in the Court of Claims that “there is kind of a bootstrap' quality of reasoning in saying that [the United States’] duties expressed by law are those of a trustee, and, therefore, we may look at Scott on Trusts or the Restatement of Trusts and impose on [the Government] all the other consequences the law, as stated by those authorities, derives from the status of an erring nongovernmental trustee.” 229 Ct. Cl. 1, 31, 664 F. 2d 265, 283 (1981) (Nichols, J., concurring and dissenting). “The federal power over Indian lands is so different in nature and origin from that of a private trustee . . . that caution is taught in using the mere label of a trust plus a reading of Scott on Trusts to impose liability on claims where assent is not unequivocally expressed.” Id., at 32, 664 F. 2d, at 283.8 The trusteeships to *235which the Court has referred in the past have manifested more the view that pervasive control over Indian life is such a high attribute of federal sovereignty that States cannot infringe upon that control. Ibid-.9 The Court today turns this shield into a sword.

*236In my view, it is clear that “[n]othing on the face” of any of the statutes at issue, Santa Clara Pueblo v. Martinez, 436 U. S. 49, 59 (1978), or in their legislative histories, “fairly [can] be interpreted as mandating compensation” for the conduct alleged by respondents. Some of the statutes involved here, to be sure, create substantive duties that the Secretary must fulfill. But this could equally be said of the Classification Act, considered in Testan. It requires that pay classification ratings of federal employees be carried out pursuant to “the principle of equal pay for substantially equal work.” 5 U. S. C. §5101(1)(A). Although the federal employee in Testan alleged a violation of the Act, the Court concluded that a backpay remedy was unavailable, rejecting the argument that the substantive right necessarily implies a damages remedy. 424 U. S., at 400-403.

Ignoring this holding in Testan, the Court concludes that the mere existence of a trust of some kind necessarily establishes that Congress has consented to a recovery of damages. In effect we are told to accept on faith the existence of a damages cause of action: “Given the existence of a trust relationship, it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties.” Ante, at 226 (emphasis added). See also ibid, (damages are a “fundamental incident” of a trust relationship); ante, at 227 (it would be “anomalous” not to find a damages remedy). The *237Court can find no more support for this proposition than the dissenting opinion in Mitchell I. See ibid.10

It is fair to say that the Court is influenced by its view that an injunctive remedy is inadequate to redress the violations alleged — precisely the inference deemed inadmissible in Testan.11 It is the ordinary result of sovereign immunity that uneonsented claims for money damages are barred. The fact that damages cannot be recovered without the sovereign’s consent hardly supports the conclusion that consent has been given. Yet this, in substance, is the Court’s reasoning. If it is saying that a remedy is necessary to redress every injury sustained, the doctrine of sovereign immunity will have been drained of all meaning. Moreover, “many of the federal statutes . . . that expressly provide money damages as a remedy against the United States in carefully limited circumstances would be rendered superfluous.” Testan, 424 U. S., at 404.

*238I — ( HH t-H

The Court has made no effort to demonstrate that Congress intended to render the United States answerable in damages upon claims of the kind presented here. The mere application by a court of the label “trust” cannot properly justify disregard of an immunity from damages the Government has never waived. I would reverse the judgment of the Court of Claims.

The only monetary obligation imposed upon the Secretary by § 406 or § 407 is to pay the actual “proceeds” of timber sales to the owners of the land. Thus, while it may well be that those sections would permit an action to compel the Secretary to pay over unlawfully retained proceeds, see United States v. Testan, 424 U. S., at 401, no statutory basis exists for extending that remedy to profits that arguably or ideally should have been, but were not, earned by the Secretary. On the contrary, the statutory recognition of a right to receive the “proceeds” of sales conducted suggests that this is the limit of any damages action implicitly authorized by Congress. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 14-15, 20-21 (1981). Cf. United States v. Erika, Inc., 456 U. S. 201, 208 (1982).

Section 466 merely requires the Secretary to “make rules and regulations for the operation and management of Indian forestry units on the principle of sustained-yield management.”

Section 318a authorizes the appropriation of funds for building of roads on Indian reservations. It would be a radical change in the law of sovereign immunity to hold that a routine authorization statute allows individuals who might benefit from appropriations to bring an action to recover damages. And although § 325 requires “the payment of such compensation as the Secretary of the Interior shall determine to be just,” it does not follow that damages for failure to secure more generous compensation are available. Indeed, the explicit statutory recognition of the Secretary’s *231authority to determine the amount of compensation militates against any damages remedy for insufficient compensation. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 644-645 (1981); Plumbers & Pipefitters v. Plumbers & Pipefitters, 452 U. S. 615, 630 (1981) (Burger, C. J., dissenting).

Section 162a affords the Secretary substantial discretion respecting investments to be made with individual Indian funds. There is nothing in the statute that requires payment of a particular rate of interest, much less that makes the United States accountable in damages for any amount by which the revenues earned fall short of a standard of “reasonable management zeal to get for the Indians the best rate.” 229 Ct. Cl. 1, 15-16, 664 F. 2d 265, 274 (1981).

It is improbable that Congress intended § 406 to constitute consent to monetary liability for forestry mismanagement on allotted lands, because before 1924, the Government maintained the position that heavily forested lands were not to be allotted. See United States v. Payne, 264 U. S. 446, 449 (1924); Brief for United States 3, n. 2. And before 1964, § 406 was a rather bare instrument, simply giving an Indian permission to sell his timber with the Secretary's permission. See ante, at 219-220. The legislative history of the 1964 amendments to § 406, see ante, at 222, also fails to supply the necessary evidence of congressional intent. The House Report states that “[n]o additional expenditure of Federal funds” was expected to be incurred by reason of the enactment of the legislation. H. R. Rep. No. 1292, 88th Cong., 2d Sess., 2 (1964). A letter from the Interior Department to the Congress urging enactment of the legislation explained only that the standards for timber sales on allotted lands “should help allay disputes and avoid misunderstanding.” S. Rep. No. 672, 88th Cong., 1st Sess., 3 (1963).

Although not dispositive, the monetary character of a statutory right is a strong indication that a statute “in itself. . . can fairly be interpreted as mandating compensation.” By contrast, where, as here, the duties imposed by a statute are not essentially monetary in character, but require implementation through conduct by federal officials, the contrary inference arises: that Congress, by its silence as to a damages remedy, created only a substantive right enforceable through injunctive relief. See Testan, supra, at 401, n. 5, 403.

See, e. g., Jackson Transit Authority v. Transit Union, 457 U. S. 15, 20-23 (1982); Middlesex County Sewerage Authority, supra, at 13-18; Texas Industries, supra, at 639-640; California v. Sierra Club, 451 U. S. 287, 292-298 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 91-95 (1981); Universities Research Assn. v. Coutu, 450 U. S. 754, 770-784 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19-24 (1979). Against the background of sovereign immunity, the rationale of these cases should apply here with particular force.

“There are a number of widely varying relationships which more or less closely resemble trusts, but which are not trusts, although the term ‘trust’ is sometimes used loosely to cover such relationships. It is important to differentiate trusts from these other relationships, since many of the rules applicable to trusts are not applicable to them.” Restatement (Second) of Trusts § 4, Introductory Note, p. 15 (1959). For example, the Court often has described the fiduciary relationship between the United States and Indians as one between a guardian and a ward. See, e. g., Klamath Indians v. United States, 296 U. S. 244, 254 (1935); United States v. Kagama, 118 U. S. 375, 383 (1886). But “[a] guardianship is not a trust.” Restatement (Second) of Trusts § 7. There is no explanation, however, why the Court chooses one analogy and not another. The choice appears to be influenced *235by the fact that “[t]he duties of a trustee are more intensive than the duties of some other fiduciaries.” Id., §2, Comment b.

The Court asserts that “[a]ll of the necessary elements of a common-law trust are present” — a trustee, a beneficiary, and a trust corpus. Ante, at 225. But two persons and a parcel of real property, without more, do not create a trust. Rather, “fa] trust. . . arises as a result of a manifestation of an intention to create it.” Restatement (Second) of Trusts §2. See id., § 23 (“A trust is created only if the settlor properly manifests an intention to create a trust”); id., §25 (“No trust is created unless the settlor manifests an intention to impose enforceable duties”). This is the element that is missing in this case, and the Court does not, and cannot, find that Congress has manifested its intent to make the statutory duties upon which respondents rely trust duties. Cf. id., §95; 2 A. Scott, Law of Trusts § 95, p. 772 (3d ed. 1967) (“At common law it was held that a use... could not be enforced against the Crown . . .”).

Indeed, given the language of the statute at issue in Mitchell I, the case for finding that Congress intended to impose fiduciary obligations on the United States was much stronger there than it is here. See 445 U. S., at 547 (White, J., dissenting). One of the authorities cited by Justice White, 2 Scott, supra, § 95, specifically discusses the General Allotment Act as an example of the United States acting as a trustee. Furthermore, a trustee can “reservfe] powers with respect to the administration of the trust.” Restatement (Second) of Trusts § 37. Unless the United States agrees to be held liable in damages, even the existence of a trust does not necessarily establish that the Government has surrendered its immunity from damages.

The Court has invoked the fiduciary relation primarily (i) to preclude unauthorized state interference in the relations between the United States and the Indian tribes or other unauthorized exercise of state jurisdiction on Indian lands, see, e. g., Kagama, supra, at 382-384; (ii) to bar or nullify exercises of state court jurisdiction in matters affecting Indian property rights, in which the United States was not properly joined or represented, see, e. g., Minnesota v. United States, 305 U. S. 382, 386 (1939); United States v. Candelaria, 271 U. S. 432, 442-444 (1926); (iii) to interpret doubtful or ambiguous treaty language in favor of the Indians, see, e. g., United States v. Shoshone Tribe, 304 U. S. 111, 117-118 (1938); Minnesota v. Hitchcock, 185 U. S. 373, 396 (1902); (iv) to determine the liability of the *236United States for damages under the Just Compensation Clause where, acting as a fiduciary manager, it has converted the form of Indian property, see, e. g., United States v. Sioux Nation of Indians, 448 U. S. 371, 415-416 (1980); and (v) to emphasize the high standard of care that the United States is obliged to exercise in carrying out its duties respecting the Indians, see, e. g., United States v. Mason, 412 U. S. 391, 398 (1973); Seminole Nation v. United States, 316 U. S. 286, 296-297 (1942). But the Court has never, until today, invoked the doctrine to hold that the United States is answerable in money damages for breaches of the standards applicable to a private fiduciary.

The Court reaches for support in Seminole Nation v. United States, swpra, and United States v. Creek Nation, 295 U. S. 103 (1935), but both cases cut against the Court’s theory in this case. The discussion of the Government’s fiduciary duty in Seminole Nation referred to a claim to compel payments expressly prescribed by Treaty. See 316 U. S., at 296-297. Creek Nation involved a taking claim.

Also significant is the Court’s standardless remand for further proceedings consistent with its opinion. Where the statute upon which liability is premised creates no right to payment of a sum certain, the Court of Claims (now the United States Claims Court) will be required, without legislative guidance, to determine the extent of liability, if any, and the items of damages that are cognizable. This task, unlike the factual or legal determination whether a particular individual falls within a class granted a right to payment of money by a statute, is not one to which courts are adapted. Any rules established will be of “judicial cloth, not legislative cloth.” Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U. S. 139, 141 (1981). I assume, however, that the law of trusts generally will control and that all defenses to actions on breaches of trust, such as consent by the beneficiary and laches, will be fully available to the United States. Cf. 229 Ct. CL. at 15-16. 664 F. 2d. at 274.