Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) ) Frances Elaine Felix, et al., ) ) ) Plaintiff-Intervenors, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on January 19, 2007

DEFENDANT'S REPLY TO RESPONSE TO MOTION TO STRIKE (#395) Defendant, the United States, submits this reply to the paper submitted to the Court by Frances Elaine Felix ("Ms. Felix")(Dkt # 395, hereinafter "the Felix Response") and filed (pursuant to this Court's January 10, 2007, Order) as a response to Defendant's motion to strike. I. TO THE EXTENT THE FELIX RESPONSE PRESENTS ARGUMENT ON BEHALF OF PERSONS OTHER THAN THE PREVIOUSLY-NAMED MEMBERS OF MS. FELIX'S IMMEDIATE FAMILY,1/ THIS COURT SHOULD NOT CONSIDER IT As a threshold matter, the United States notes that the Felix Response was signed only by Frances E. Felix, but appears to make arguments and requests for relief on behalf of all of "the
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For the purpose of this memorandum, the United States takes at face value Ms. Felix's assertion that the following persons are members of her "immediate family" (although she did not identify who they were or their relationship to her): Paul Russell Felix, Guy Joseph Felix, Tyler Brady Felix and Logan Carter Felix (hereinafter, "the Immediate Family Group").

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extended family members of the Felix family group" (Felix Response, at 1), and bears a heading stating it is "From: Frances E. Felix, et al[.], Plaintiff-Interveners." This Court has made clear

that pursuant to RCFC 83.1, Ms. Felix may not represent anyone before this Court other than members of her immediate family, and yet it appears that is exactly what is occurring here, contravening Rule 83.1 and this Court's Orders directed to the so-named "Felix Group" in this case. (In this memorandum, the term "Felix Group" is used to refer to all persons on whose behalf Ms. Felix moved to intervene in the case.) The United States replies, below, to the substance of the Felix Response, without waiving its position that the Felix Response appears to present argument on behalf of the entire Felix Group and to that extent it is not properly before the Court. In this Reply, the United States focuses on the question whether "certain members of the Felix group retain their status as intervening plaintiffs," because, in this Court's January 10, 2007, Order, that is how the Court characterized the question presented. II. NO MEMBERS OF THE FELIX GROUP OTHER THAN THE IMMEDIATE FAMILY GROUP "RETAIN" ANY STATUS AS INTERVENING PLAINTIFFS, BECAUSE THEY FAILED TO COMPLY WITH THIS COURT'S ORDERS AND THE RULES OF THIS COURT; AND THEIR ARGUMENTS MUST FAIL BECAUSE THEY DIRECTLY CONTRAVENE THE APPLICABLE RULES AND ORDERS Ms. Felix asserts that "we" (the Felix Group, it appears) interpreted the Court's Orders and pertinent Rules to mean "that the extended group may not actively participate without being represented by counsel. In other words, the extended family members have an interest in the outcome of the case as plaintiffs but may not submit motions, or other pleadings, or be actively involved in the proceedings at court without being represented by an attorney." Felix Response, at 2.

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That assertion has no merit. This Court did not suggest any such special status for unrepresented intervenors (from the FelixGroup or otherwise). Nor do the pertinent Rules of this Court support Ms. Felix's assertion. On the contrary, as the United States set forth in detail in its motion to strike (Dkt # 380), this Court consistently made clear (at the July 18, 2006, hearing in this case and via its subsequent Orders concerning this matter) that Ms. Felix could not represent all members of the putative intervenor group going forward, and that they should retain a lawyer (admitted to the bar of this Court) to represent them. As just one example, in its October 5, 2006, Order granting an extension of time to file a First Amended Complaint complying with this Court's Rules, the Court ordered that "the amended complaint, among other things, should ... reflect substituted counsel in place of Ms. Felix as a pro se plaintiff at the very least insofar as a larger group than her immediate family is involved." (Dkt. 301; emphasis added). The "First Amended Complaint," as filed, did not comply with that Order, and the Defendant and the Court are now faced with a series of submissions to the Court by a pro se plaintiff/intervenor acting on behalf of a group of almost 340 natural persons who, like her, are not represented by a qualified lawyer. Likewise, the applicable Rules of this Court do not support the assertions contained in the Felix Response; indeed, the Rules make clear that this group of unrepresented persons cannot proceed in this case as they suggest. No person has or "retains" any status as plaintiff or intervenor without complying with the pertinent rules governing litigation in this forum, and the Felix's Group's claims contravene (and contradict) Rules 11, 24, and 83.1, at a minimum. Rule 83.1, which the Court repeatedly has brought to the attention of the Felix Group, is clear. It provides, in pertinent part, that:

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"An individual may represent oneself or a member of one's immediate family as a party before this court. Any other party, however, must be represented by an attorney who is admitted to practice in this court." The Felix Group is not so represented. They neither represent themselves, nor have they obtained counsel, despite this Court's repeated directives. Instead, they have relied, and continue to rely, on another pro se party to file papers setting forth their putative claims and their position on various issues.2/ Rule 83.1 prohibits exactly that. Another requirement of this Court is that a proper Complaint be filed and served accompanying any motion to intervene. Rule 24 of this Court, which governs intervention, requires in pertinent part that "A person desiring to intervene shall serve a motion to intervene upon the parties ... [which] shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." RCFC 24(c). The Court treated the original Felix submission as a motion to intervene, but made clear that the Felix Group had to submit a "First Amended Complaint" that complied with the Court's Rules and its Orders governing that matter. Yet as matters stand now, no member of the sotermed Felix Group other than the four members of Ms. Felix's "immediate family" (the members of the Immediate Family Group are listed in footnote 1, above) has complied with the requirement that a Complaint be submitted accompanying the motion to intervene, because they are not represented by anyone who may submit papers to the Court on their behalf, and the only "Complaint" filed was filed by Ms. Felix. Rule 83.1, especially when read in conjunction with Rule 11, makes clear that any papers purportedly submitted on behalf of the "Felix Group" by a

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Indeed, these purported "intervenors" remained unnamed until Ms. Felix listed their names in an Addendum to the "First Amended Complaint" she filed on or about October 30, 2006. -4-

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pro se party are a legal nullity. That includes the "First Amended Complaint" submitted by Ms. Felix. Put simply, the "extended family members" do not have any status as "plaintiffs" or "plaintiff-intervenors" which they could "maintain," because not having filed any Complaint in accordance with this Court's Rules and Orders, they have no claims before this Court. Certainly after, and in view of, this Court's repeated warnings that the Complaint to be filed had to reflect counsel (a qualified lawyer) for "at the very least" all members of the group other than identified members of Ms. Felix's immediate family, there can be no question that any papers filed by Ms. Felix purporting in any way to represent the claims or positions of any persons other than the Immediate Family Group must be stricken as to those unrepresented persons. In addition, Felix did not (and cannot) offer any authority to support the proposition that a person (much less a group of some 340 persons) could be represented by someone other than an immediate family member or a lawyer admitted to the Bar of this Court for the purpose of obtaining intervention, and then hang around for the duration of the case, claiming that they need not comply with this Court's Rules and Orders on the ground that they are "not actively participat[ing]." Neither Rule 24, which governs intervention, nor Rule 83.1, nor any other Rule of this Court contains any provision for persons to be "Plaintiffs But Not `Actively Participating.'" In fact, in its Opinion permitting intervention to the 36 groups whose motions were before the Court at that time, the Court noted that "each applicant has a separate responsibility to establish that he or she is a member of the group of lineal descendants and cannot rely on others to make that showing." Wolfchild v. United States , 72 Fed. Cl. 511, 520 (2006)("Wolfchild III"). Furthermore, the potential prejudice to the Defendant or other parties is

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obvious if, in addition to claiming exemption from the Rules at this stage, members of the Felix Group claim exemption from responding to motions and other papers directed to them, and from otherwise complying with the Rules, on the ground that they are "Plaintiffs But Not Actively Participating." The Felix Group's suggestion fails also because Ms. Felix never explains how any intervenor in the case could protect his or her putative "interest in the outcome of the case" without "actively participating." Indeed, the illogic of that suggestion underscores the fact that what the Felix Group suggests directly contravenes Rule 24 and the purpose of intervention. Rule 24 defines the requirements for intervention: that the movants possess an "interest relating to the property or transaction which is the subject of the action and ... [be]... so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." RCFC 24(a). In their original submission to the Court, which the Court deemed to be a motion to intervene, the members of the so-named "Felix Group" claimed to have an interest relating to the property or transaction that is the subject of this litigation, and claimed that the purported interest was not adequately represented by existing parties (see e.g., Dkt # 161, in which the Ms. Felix asserted that Plaintiffs, represented by Erick Kaardal, Esquire, and his firm, took a position different from that the members of her "group" as to who might be "entitled to benefits;" and would not represent her "group.")3/ Now these same persons claim that they do not wish or need "actively" to participate in the case. In addition, it appears that they believe they need not

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Likewise, permissive intervention under Rule 24(b) requires, among other elements, a "claim or defense" in common with a question of law or fact in the main action. It presupposes that the movants for intervention intend to advocate in support of such claims or defenses. -6-

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"actively" participate because they intend Ms. Felix's filings to pertain to them. This Court should not let this situation continue. In numerous ways, this Court has been very solicitous of the thousands of intervenors and movants for intervention in this litigation. It has, for example, accepted for filing various papers that did not appear to conform to all the Rules of this Court, and it has given various movants opportunities to conform their filings to the Rules of this Court. It has made arrangements for litigants to participate by telephone at the hearing on the motions to intervene so they would not have to travel long distances. At the July 18, 2006, hearing in this case, it ensured that Ms. Felix had ample opportunity to be heard in support of her motion. And, as noted above, it repeatedly told the members of the Felix Group (at the hearing and in subsequent written Orders) that they had to obtain counsel to continue in this case. But to permit the special status that the "Felix Group" now claims would be to go too far. Indeed, in addition to contravening the applicable Rules, granting the Felix Group the special status they claim to continue in the litigation will cause prejudice to the existing parties, and probably is not in the interest of the members of "Felix Group" themselves. Rule 11 and Rule 83.1 exist for the protection of all parties and prospective litigants, and for the Court, to ensure (among other things) that unauthorized representations and filings are not made purportedly on behalf of litigants; that putative litigants have competent advice and counsel in matters before this Court; and that the Court and the parties do not have to burn up time and resources attempting to resolve otherwise-avoidable issues that arise as a result of unrepresented persons' failed attempts to navigate a complex case in compliance with the law and the Court's Rules. No pro se person has any business submitting filings to this Court that in

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any way purport to represent the claims, interests, positions or even the opinions of 340 other people, and yet that is what is occurring. Nor should hundreds of persons be permitted to rely on the filings of another pro se litigant. In sum, this Court should reject the suggestion that the members of the Felix Group have status as intervenors having failed to comply with this Court's Orders, obtain counsel, or file a proper Complaint in compliance with the Rules. While this Court may give limited leeway to pro se litigants in certain respects, it may not permit them to ignore Rules 11 or 83.1, engage in the unauthorized practice of law, represent persons (or be represented) other than as specifically set forth in Rule 83.1, nor "maintain" status as intervenors or plaintiffs without complying with Court's Rules. See, e.g., Carter v. United States, 62 Fed. Cl. 365, 368 (2004) (citations omitted) ("[W]hile pro se litigants are generally allowed some leniency in the formalities of their pleadings, they are not immune from laws and rules of procedure simply on the basis of their pro se status.") See also, Saladino v. United States, 62 Fed. Cl. 782 (2004). III. THE GROUP SHOULD NOT BE HEARD TO CLAIM THAT THE COURT FAILED TO GIVE THEM "NOTICE" THAT THEY HAD TO COMPLY WITH ITS RULES The assertion that the Felix Group did not have proper "notice" of a need to obtain counsel or file Complaints "within any specific time frame" is utterly without merit, in light of the Court's Orders and for the other reasons set forth above. There are additional reasons that claim must fail, as the United States explains here. Ms. Felix asserts that notice to her that the persons on whose behalf she filed a "motion to intervene" had to obtain counsel does not constitute notice to all members of the group "because [she] is not an attorney." This claim shines a bright light on the untenable nature of the "Felix Group's" position: they wish to rely on filings by another pro se party to obtain intervention and present their position and arguments -8-

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in the case, yet when it suits them to do so, they take refuge in the claim that the person who has submitted papers on their behalf is not a lawyer and cannot be expected to serve as an interlocutor between them and the Court. This bold claim also underscores one of the reasons why strict compliance with Rule 83.1 is required: the Court and all the parties are entitled to know who represents all the other parties, and that they can rely on the fact of such representation, consistent with Rule 11 and the other Rules of this Court. The Defendant, particularly, is entitled to know for certain on whose behalf each Complaint and motion and other paper is filed, who is accountable to the Court and the other parties for each filing, and who speaks for each group on procedural and other matters. The claim that the Court failed to give "proper notice" to all members of the "group" fails for the additional reason that none of the members of the Felix Group were identified to the Court or any party until Ms. Felix filed her "First Amended Complaint," following extensions of time and repeated warnings that members of the group had to obtain counsel. Even at that late stage, only their names were provided. To seek intervention purportedly on behalf of a group of hundreds of unnamed persons and then claim that "notice" to the filer, the sole identified member of the "group," was insufficient, is to place on the Court responsibility that belongs elsewhere. It underscores the sound reasons for requiring that a group of multiple litigants before this Court be appropriately represented by a qualified lawyer. Lastly, the Felix Group's "notice" argument does not augur well for the future management of this complex and sprawling case: it raises the prospect of almost 340 unrepresented persons who claim "Plaintiff But Not Actively Participating" status popping up when it suits them, to claim the Court should have notified them of one thing or another or

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"developed" and instituted "some procedure" to suit their needs and desires, expressed after the fact. This Court should reject the "notice" argument for all the reasons set forth above. IV. CONCLUSION For all of these reasons, and the reasons set forth in Defendant's motion to strike, the motion should be granted, and the "First Amended Complaint" and any and all claims purportedly submitted to the Court on behalf of members of the "Felix group" other than Frances Elaine Felix, Paul Russell Felix, Guy Joseph Felix, Tyler Brady Felix and Logan Carter Felix, should be stricken.

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Dated: January 19, 2007

Respectfully submitted,

SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division

s/ Laura Maroldy LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorney of Record for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044-0663

OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of January 2007, I directed that a copy of the Notice of Electronic Filing of the foregoing Defendant's Reply to Response to Motion to Strike (#395) be sent by FIRST CLASS MAIL, POSTAGE PREPAID, to:

Francis Elaine Felix P.O. Box 141232 Minneapolis, MN 55414 (Ms. Felix was also sent the file document by electronic mail at [email protected])

Philip Baker-Shenk HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006

Jack Pierce 6040 Earle Brown Drive Suite 420 Minneapolis, MN 55430 Elizabeth Troy Walker Walker Associates 127 South Fairfax Street Suite 126 Alexandria, VA 22314 Thomas Hayes 8642 R Plaza #2 Omaha, NE 68127

Douglas R. Kettering KETTERING LAW OFFICE 714 Douglas Avenue PO Box 668 Yankton, SD 57078 Ron Volesky 356 Dakota Avenue. So. Huron, South Dakota 57350

DATED this 19th day of January 2007. s/Laura Maroldy Laura Maroldy

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