Goodwill Industries of El Paso v. United States, 15070.

• Decision Date: 29 December 1954
• Docket Number: No. 15070.,15070.
• Citation: 218 F.2d 270
• Parties: GOODWILL INDUSTRIES OF EL PASO v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 270 (1954)

GOODWILL INDUSTRIES OF EL PASO v. UNITED STATES of America.

No. 15070.

United States Court of Appeals, Fifth Circuit.

December 29, 1954.

Ted Andress, El Paso, Tex., Andress, Lipscomb & Peticolas, El Paso, Tex., of counsel, for appellant.

Francis C. Broaddus, Jr., Asst. U. S. Atty., El Paso, Tex., Charles F. Herring, U. S. Atty., Austin, Tex., for appellee.

Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.

HOLMES, Circuit Judge.

This appeal is from a judgment dismissing an action, brought by appellant against the United States, under the Federal Tort Claims Act, for damages for loss of property caused by the alleged negligent acts and omissions of government employees. 28 U.S.C. § 1346(b). The court below dismissed the complaint on the ground that it failed to state a cause of action because it came within the exceptions to jurisdiction provided by Section 2680(a), Title 28 of the United States Code.

The complaint alleged that the appellant had clothing and personal property stored in locked buildings at Rio Vista Farm in El Paso County, Texas; that said Rio Vista Farm had been designated as a reception center for migratory Mexican workers, pursuant to an act of Congress; and that employees of the United States Labor Department moved a large number of such workers upon Rio Vista Farm where, by reason of the failure of said employees properly to supervise their activities, the said workers broke into the locked buildings and stole the property belonging to appellant.

The motion to dismiss was sustained on the basis of the provisions contained in Section 2680(a) of Title 28 United States Code, which provides that said section shall not apply to any claim based on the act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not the statute or regulation be valid, or based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or of any employee of the government, whether or not the discretion involved be abused.

Appellant contends that the above exceptions are not applicable, because (a) the government was not exercising a governmental function, but only a proprietary function in the handling of the migratory workers, and (b) the acts and omissions alleged in the complaint did not involve the exercise of discretion by high level executives, but only involved the proper execution of ministerial acts.

It is contended by the government that the acts complained of on which the appellant based its claim for relief fall within the exceptions to the Act and, accordingly, are not within the jurisdiction of the district court. We think that the district court properly held that appellant's claim fell within the exceptions and that the dismissal for want of jurisdiction was free from error. Immunity of the sovereign from suit is an ancient principle of the law, which is applicable in actions upon a contract or in tort, but the sovereign may, by express statutory provisions, waive this immunity; and the United States has waived it in part.

In Dalehite v. U. S., 346 U.S. 15, 73 S.Ct. 956, 968, 97 L.Ed. 1427, the court said: "It is enough to hold, as we do, that the `discretionary function or duty' that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable."

The Congress of the United States enacted the fundamental law governing the importation of migratory Mexican workers. Such law provides for the recruiting of such laborers, and the...