Peterson v. United States

Decision Date10 July 1970
Docket NumberNo. 20208.,20208.
Citation428 F.2d 368
PartiesGerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Gerald D. Peterson, pro se.

Bert C. Hurn, U. S. Atty., Kansas City, Mo., and Charles E. French, Asst. U. S. Atty., on brief for appellee.

Before MATTHES, Chief Judge, JOHNSEN, Senior Circuit Judge, and LAY, Circuit Judge.

PER CURIAM.

This is the third time Gerald D. Peterson has been in this court on appeals from judgments of the United States District Court for the Western District of Missouri. First, we affirmed his conviction for violations of narcotic laws. Peterson v. United States, 405 F.2d 102 (8th Cir.), cert. denied, 395 U.S. 938, 89 S.Ct. 2003, 23 L.Ed.2d 453 (1969). Second, his conviction for violation of 18 U.S.C. § 2113(a) was affirmed. Peterson v. United States, 411 F.2d 1074 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 920, 24 L.Ed.2d 199 (1969). Now, he is here on an appeal from an order of the district court dismissing his action for damages, without prejudice. Again, we affirm.

Appellant, who is confined in the federal penitentiary at Leavenworth, Kansas, filed a complaint in this action against the United States of America seeking to recover $500,000 as damages for deprivation of his rights under the Fourth and Fifth Amendments of the United States Constitution, allegedly emanating from an illegal and unreasonable search of his home by federal officers. He invoked the jurisdiction of the federal court under 28 U.S.C. §§ 1343 and 1346 and 28 U.S.C. Chapter 171 (Federal Tort Claims Act).

Judge Hunter reached the conclusion, largely on the authority of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 49 F.2d 718 (2d Cir. 1969), that appellant was not entitled to monetary relief by virtue of the claimed unreasonable search.

Alternatively, Judge Hunter reasoned that even if appellant's complaint stated a claim for relief grounded on a constitutional invasion or for the tortious conduct of the F.B.I. agents that the action had to be dismissed for failure of appellant to comply with the provisions of 28 U.S.C. § 2675(a).

We hold that the alternative theory relied upon by Judge Hunter compelled the dismissal of the action.

It is settled that the United States, as sovereign, is immune from suit unless it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Iowa Public Service Company v. Iowa State Commerce Comm., 407 F.2d 916, 920 (8th Cir.), cert. denied, 396 U.S. 826, 90 S.Ct. 71, 24 L.Ed.2d 77 (1969); Simons v. Vinson, 394 F.2d 732 (5th Cir.), cert. denied, 393 U.S. 968, 89 S.Ct. 398, 21 L.Ed.2d 379 (1968). A corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d Cir. 1962); Kuhnert v. United States, 127 F.2d 824 (8th Cir. 1942). 28 U.S.C. § 2675(a) as amended in 1966 provides in pertinent part that:

"An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission
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  • Lunsford v. United States
    • United States
    • U.S. District Court — District of South Dakota
    • August 30, 1976
    ...1058 (1941). In giving such consent, the United States may attach whatever conditions and limitations it chooses. Peterson v. United States, 428 F.2d 368 (8th Cir. 1970). Although the waiver of sovereign immunity embodied in the Federal Tort Claims Act is cast in broad and sweeping terms, s......
  • Employees of Dept. of PH & W. v. DEPARTMENT OF PH & W.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 27, 1972
    ...312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888. See Peterson v. United States, 8 Cir., 428 F.2d 368. Controlling legal principles and proper federal-state relations require that the standards applicable to federal immunity sho......
  • Claude v. United States, No. C00-3010-MWB (N.D. Iowa 4/12/2001)
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 12, 2001
    ...United States, 621 F.2d 914, 918 (8th Cir. 1980) (citing West v. United States, 592 F.2d 487, 492 (8th Cir. 1979)); Peterson v. United States, 428 F.2d 368 (8th Cir. 1970); 28 U.S.C. § 2675; 28 C.F.R. § 14.2(a). The United States argues that, although the Claudes sent letters to Ellen Hunto......
  • Bor-Son Bldg. Corp. v. Heller
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 8, 1978
    ...to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Peterson v. United States, 428 F.2d 368, 369 (8th Cir. 1970). As to claims sounding in tort, the remedy under the Federal Tort Claims Act is exclusive, and this is expressly so despite t......
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