Clark v. United States

• Decision Date: 30 January 1978
• Docket Number: No. 77 C 2105.,77 C 2105.
• Citation: 447 F. Supp. 172
• Parties: Emmet M. CLARK, James A. Dorsey, A. D. McLane, Richard Cubbage, and John G. Terhune, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

447 F. Supp. 172

Emmet M. CLARK, James A. Dorsey, A. D. McLane, Richard Cubbage, and John G. Terhune, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 77 C 2105.

United States District Court, N. D. Illinois, E. D.

January 30, 1978.

Richard T. Cubbage, Evanston, Ill., C. A. Conway, Kenilworth, Ill., for plaintiffs.

Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION

WILL, District Judge.

This action arises under the Due Process Clause of the Fifth Amendment, and seeks a finding that classification under Title 5, United States Code, Section 8340, and other unspecified statutes, providing for federal pensions, which grant increased payments to offset increases in the Consumer Price Index to persons who once worked for the federal government, is unconstitutional as to plaintiffs, who are pensioners under state and private pension plans. Plaintiffs contend that similar indexing payments must be provided by the federal government to their pensions in order to guarantee them equal protection under the law. They seek retroactive payments and future increased pension payments.

Defendant United States has moved to dismiss the complaint on the grounds that this Court lacks subject matter jurisdiction, and that the complaint fails to state a claim upon which relief may be granted. For the reasons stated herein, we grant the United States' motion to dismiss the complaint.

JURISDICTION

We are initially faced with the question of this Court's jurisdiction over the subject matter of this dispute. Plaintiffs argue that jurisdiction is premised on 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, yet these statutes confer federal jurisdiction only regarding actions committed under color of state law, whereas here the plaintiffs are alleging the unconstitutionality of a statute enacted by the Congress of the United States. As plaintiffs correctly assert in their Brief Opposing Defendant's Motion to Dismiss, however, where facts giving the Court jurisdiction have been set forth, the statutory provision conferring jurisdiction need not be specifically pleaded. Williams v. United States, 405 F.2d 951, 954 (9th Cir. 1969).

The United States argues that an allegation of the denial of a constitutional right does not in itself confer jurisdiction on the federal courts. But it is well established that the Constitution itself gives a person deprived of constitutionally guaranteed rights a cause of action to redress that deprivation, even without any statutorily created cause of action. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Furthermore, statutory jurisdiction can be found in 28 U.S.C. § 1331(a), which grants the federal district courts original jurisdiction of all civil actions arising under the Constitution or laws of the United States and, if brought against the United States, without regard to jurisdictional amount.

In arguing this Court's lack of jurisdiction, the United States contends that plaintiffs have demonstrated no deprivation of a constitutionally protected right to bring them within 28 U.S.C. § 1331. But the jurisdiction of this Court does not turn on the merits of plaintiffs' claim. Where the plaintiffs' jurisdiction-conferring claims are not insubstantial on their face, further consideration of the merits of the claim are irrelevant to a determination of the Court's jurisdiction of the subject matter.

SOVEREIGN IMMUNITY

The United States urges further that the law is well settled that the United States as a sovereign is immune from suit except where Congress has by specific statute waived this immunity. This argument overlooks the long established constitutional exception to the doctrine of sovereign immunity. Larson v. Domestic and Foreign Corporation, 337 U.S. 682, 690, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949).

The constitutional exception to the doctrine of sovereign immunity is not, however, as sweeping as plaintiffs contend. In Larson, the Court announced in effect that it would engage in the legal fiction that a suit against a government officer in his official capacity was not a suit against the sovereign, and hence not subject to the doctrine of sovereign immunity, only if premised on actions by the officer which were either (1) beyond the scope of his statutory powers, or (2) even though within the realm of his delegated authority, constitutionally void. Larson's requirement that a particular federal officer or officers be named, individually or by title, in order to preclude the application of the doctrine of sovereign immunity has recently been restated. State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969); Schlafly v. Volpe, 495 F.2d 273 (7th Cir. 1974).

This requirement was substantially reaffirmed by Congress in P.L. 574, adopted in 1976, which added language to § 702 of the Administrative Procedure Act. Congress there specified that an action against the United States, seeking relief other than money damages, shall not be barred by the doctrine of sovereign immunity, as long as it states a claim that "an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority . . .."

Contrary to the suggestion of plaintiffs, 28 U.S.C. § 1331 does not in itself operate to waive the requirement that particular agencies, officers or employees thereof be named. Section 1331 has not in the past been held to preclude the application of the doctrine of sovereign immunity. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 531-32 (8th Cir. 1967); Smith v. Grimm, 534 F.2d 1346 (9th Cir. 1976). In 1976, section 1331 was amended to eliminate the amount in controversy requirement where actions were brought against the United States. In Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court held that this filling of a jurisdictional void did not operate to lift a pre-existing statutory bar to certain actions arising under the Social Security Act. By the same token, we presume that the amendment did not, in itself, remove the requirement that particular officers or agencies be named in a suit against the United States. Therefore, by failing to name a particular agency or officer within the federal government to whom a mandatory or injunctive decree could issue, the complaint is defective and should be dismissed for this reason alone.

Even if the plaintiffs were to specify particular defendants within the United States government, the doctrine of sovereign immunity might still operate to bar this suit. The Supreme Court noted in Larson:

"Of course, a suit may fail as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief . . . will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. . . ." 337 U.S. at 691, 69 S.Ct. at 1462.

The precise import of this statement has engendered much judicial controversy and scholarly debate. See, e. g., Jaffe, "Suits Against Governments and Officers: Sovereign Immunity," 77 Harv.L.Rev. 1, 29-39 (1963); Johnson v. Mathews, 539 F.2d 1111, 1124 (8th Cir. 1976). But even in those opinions where footnote 11 of Larson has been narrowly construed, so as to confer merely a discretionary authority to dismiss complaints on grounds of sovereign immunity where particular governmental action is sought, it has been interpreted in such a way as to apply to the kind of relief plaintiffs here seek.

Were the plaintiffs to be successful in this action, the federal government would be required to meet any increase in the Consumer Price Index with corresponding payments to cover the extent of the inflation to every person in the country benefiting from any form of pension plan. Nor is it clear that the government's liability would be limited to pensioners. For plaintiffs premise their contention that they are similarly situated to retired federal employees, beneficiaries under the statute challenged, on the grounds that the purpose of the statute was to relieve individuals supporting themselves on fixed incomes. On its face, federal assistance to all who happen to be beneficiaries of pension plans to cover increases in the cost of living, irrespective of need, would appear far more irrational and arbitrary a classification than limiting benefits under the statute to retired federal employees, to whom the government may rationally determine it has a special obligation. Thus a finding for plaintiffs would logically culminate in suits that would obligate the United States to cover the impact of inflation on all individuals on fixed incomes, or whose incomes fail to keep pace with increases in the cost of living, irrespective of personal need. The thrust of plaintiffs' argument, when carried to its logical conclusion, boggles the imagination.

As the Ninth Circuit observed in State of Washington v. Udall:

"We believe that the Court's footnote 11 in Larson means that the purposes for the doctrine of sovereign immunity may be controlling in some suits against officers so that the suits must be dismissed as suits against the Government, even though the officers were not acting pursuant to valid statutory authority, because the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm." 417 F.2d at 1318.

The reasoning of the Ninth Circuit, respecting the significance of Larson's footnote 11, was considered persuasive by the Seventh Circuit in a recent decision, which was otherwise unsympathetic to expansive interpretation of the doctrine of sovereign immunity. The Court commented that "we construe footnote 11 as recognizing that the doctrine may bar a suit in exceptional cases." Schlafly v. Volpe, supra at 280.

Where sovereign immunity would bar a suit even though...