White Mountain Apache Tribe v. United States

9 Cl. Ct. 158, 1985 U.S. Claims LEXIS 886
United States Court of Claims·Decided November 8, 1985·No. No. 22-H·Published·Cited by 1 cases

Opinion

ORDER

NETTESHEIM, Judge.

Defendant’s motion to dismiss certain exceptions to an accounting by the Govern[161]*161ment has been treated as a motion for summary judgment, which plaintiff has opposed. See White Mountain Apache Tribe v. United States, 9 Cl.Ct. 1, 10-11, 13 (1985) (the “September 20 order”).

Considering whether these exceptions should remain in litigation is a different matter than determining whether plaintiff should be allowed to introduce at this stage of proceedings new supplemental accounting requests (some of which, in fact, duplicate the earlier-filed exceptions). See September 20 order and order entered on October 24, 1985, granting and denying in part plaintiffs motion for reconsideration. The exceptions already on file must be accorded exacting scrutiny under RUSCC 56 governing summary judgment.

The Federal Circuit recently encapsulated the standards for granting summary judgment:

The party moving for summary judgment bears the burden of establishing that the material facts are not in dispute and entitle it to judgment as a matter of law. 6 J. Moore, W. Taggart, and J. Wicker, Moore’s Federal Practice ¶ 56.-15[3] (2d ed. 1985). If an issue of credibility exists, or if the movant fails to establish that there is no genuine issue over any material issue of fact, the motion must be denied. United States v. Diebold, Inc., 369 U.S. 654 [82 S.Ct. 993, 8 L.Ed.2d 176] (1962). After the moving party has clearly established its case, the duty to go forward shifts to the party opposing the motion to produce evidence that places material facts in dispute. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 [90 S.Ct. 1598, 1609, 26 L.Ed.2d 142] (1970); Lehner v. United States, 1 Cl.Ct. 408, 413 (1983).

Balboa Insurance Company v. United States, 775 F.2d 1158, 1163 (1985) (footnote omitted). See generally SRI International v. Matsushita Electric Corp., 775 F.2d 1107, 1116-17 (1985) (Markey, C.J.). The standard for summary judgment when the opposing party has submitted affidavits is rigorous: “In order for a trial judge to grant a motion for summary judgment the judge must find that no material fact is in dispute or must resolve any dispute over the existence of a material fact in favor of the party resisting summary judgment.” Salazar v. United States, 775 F.2d 284, 286 (1985) (citing Skaw v. United States, 740 F.2d 932, 936-37 (Fed.Cir.1984)).

Group 1.—Exceptions 4(a), 5(a), and 108

Although defendant is charged with the movant’s burden to establish the absence of issues for trial, case law recognizes that the party taking exception to the designation of an account appearing proper on its face must specify some impropriety with respect to that account. Blackfeet & Gros Ventre Tribes v. United States, 32 Ind.Cl.Comm. 65, 85 & n. 1 (1973). To sustain a reaccounting, Blackfeet requires a showing of an “error of ... magnitude” involving the improper placement of tribal funds into a government account. Id. at 93; see Ottawa Chippewa Tribe v. United States, 35 Ind.Cl.Comm. 385, 398 (1975) (“In the absence of something in the body of the [accounting] report casting doubt on the applicability of the heading to particular items listed under it, we accept it as meaning what it says.”)

For Group 1. of the exceptions, as well as for other groups, plaintiff by brief has asserted contested factual issues. However, argument in brief alone without the corroboration of a factual statement by sworn affidavit is insufficient to raise a genuine issue of material fact. See Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 1404 (Fed.Cir.1984). Plaintiff was given an opportunity to submit affidavits and did not move pursuant to former RUSCC 56(f) (Rule 56(g) under the rules as amended November 1, 1985) for additional time to make its submission more complete.1 Although every effort has been [162]*162made to recognize those portions of plaintiff’s brief that complement plaintiff’s affidavit, such overlap rarely occurs.

In exception 4(a) plaintiff asserts that revenues totalling $21,989.73 were credited improperly to “ ‘Government Accounts.’ ” Plaintiff further claims that defendant’s accounting fails to show how these revenues were disbursed for the Tribe’s benefit. Plf’s Exceptions filed Nov. 28, 1975, at 13.

To raise an issue that the moneys were tribal or to identify another type of error that would allow plaintiff to go behind this designation, plaintiff relies on the Affidavit of Paul J. Gillis, Oct. 8, 1985, ¶ 6. Mr. Gillis breaks the sum into eight receipt categories, each of which is listed in the 1975 GSA Report under the caption “Government Accounts”:

1. Sales of Hides $12,156.39
2. Grazing Permits 477.90
3. Bents and Royalties on Land 256.58
4. Rents and Royalties on Minerals 1,056.25
5. Right-of-way Sales and Damages:
Telephone 43.90
6. Sales of Ore 94.28
7. Hunting, Camping, and Fishing Permits 93.00
8. Sales of Timber 7,801.43

See Gillis Aff. 116.

For category 1. plaintiff concedes that the $12,156.39 received for the sale of hides constitutes a Class II receipt. Such receipts are comprised of “ ‘[fjunds to be covered back into the appropriations from which they were taken and made available for reexpenditure for the purposes for which originally appropriated.’ ” Id. 117 (quoting Regulations of the Indian Office § 284 (1904)). The Gillis Affidavit indicates that the appropriations may be either government, Indian treaty, or agreement funds. He implies that if the appropriations used to purchase the livestock from which hides were produced were originally Indian treaty or agreement funds, receipts from the sale of hides should not be placed in the government account. In this regard Mr. Gillis contends: “Without underlying proof that would establish the specific appropriation fund used to purchase the cattle from which the hides sold were derived, I am unable to ascertain the correctness of the treatment of the Trustee United States of [the receipts at issue]____” Id.

For categories 2.

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White Mountain Apache Tribe v. United States, 9 Cl. Ct. 158, 1985 U.S. Claims LEXIS 886 (cc 1985).

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