Bates v. United States

• Decision Date: 25 February 1948
• Docket Number: Civil Action No. 732.
• Parties: BATES v. UNITED STATES.
• Court: U.S. District Court — District of Nebraska

76 F. Supp. 57

BATES v. UNITED STATES.

Civil Action No. 732.

District Court, D. Nebraska, Lincoln Division.

February 25, 1948.

R. R. Perry, of Perry & Perry, all of Lincoln, Neb., for the plaintiff.

Joseph T. Votava, U. S. Atty., of Omaha, Neb., and James L. Brown, Asst. U. S. Atty., of Lincoln, Neb., for defendant.

DELEHANT, District Judge.

The plaintiff, a citizen of Nebraska, in his complaint demands judgment for two thousand dollars against the defendant, under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq.

In a supplementary motion, the defendant asks that the action be dismissed "for the reason that the court is without jurisdiction to entertain the claim of $2,000.00 asserted by the complaint"; and its point is that, absent a controversy exceeding, exclusive of interest and costs, the sum or value of three thousand dollars, 28 U.S.C.A. § 41(1), jurisdiction must be denied. Despite a competent and ingenious presentation of that thesis, the court is persuaded that it is without virtue.

Two preliminary contentions of the defendant may readily be granted. First, the district courts of the United States are courts of limited jurisdiction, in the sense that they have no jurisdiction beyond that conferred upon them by the constitution and laws of the United States. For that reason, such jurisdiction is never presumed, Grace v. American Central Insurance Co., 109 U.S. 278, 3 S.Ct. 207, 27 L.Ed. 932; Hill v. Walker, 8 Cir., 167 F. 241; but must be made, by him who asserts it, affirmatively to appear. Grace v. American Central Insurance Co., supra; Lovell, Trustee v. Isidore Newman & Son, 227 U.S. 412, 33 S.Ct. 375, 57 L.Ed. 577; Le Mieux Bros. v. Tremont Lbr. Co., 5 Cir., 140 F.2d 387; Badger v. Reich Brothers Const. Co., 5 Cir., 161 F.2d 289. And, ordinarily, that disclosure must first be made in the complaint of a plaintiff who seeks the determination of his case by a United States District Court. Federal Rules of Civil Procedure, rule 8(a) (1), 28 U.S.C.A. following section 723c, in association with Rule 82; Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 43 S.Ct. 540, 67 L.Ed. 977; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Township of Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358; Hill v. Walker, 8 Cir., supra; Gardner v. Schaffer, 8 Cir., 120 F.2d 840; Jewell v. Cleveland Wrecking Co., 8 Cir., 111 F.2d 305; State Automobile Insurance Co. v. Parry, 8 Cir., 123 F.2d 243. Secondly, a statute granting jurisdiction to entertain suits against the United States, being a waiver of an immunity of sovereignty, must be strictly construed. Unitel States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598; State of Maryland v. United States, D.C.Md., 70 F.Supp. 982.

The grant of jurisdiction over cases arising under the Federal Tort Claims Act is made in the following language contained in 28 U.S.C.A. § 931(a): "* * * the United States District Court * * * shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred" (certain presently immaterial qualifying language omitted).

Standing alone, that language is both broad and clear. Its prescribed test of jurisdiction is whether in the circumstances, a private person in the position of the government would "be liable to the claimant * * * in accordance with the law of the place where the act or omission occurred." And it is unquestioned by the defendant that (saving the impact, if any, of the statutory prescription of a three thousand dollar minimum jurisdictional prerequisite, infra) the complaint states a claim which, if vindicated by proof, would fasten liability on a private person in the government's plight.

It is not explicitly contended or argued by the defendant that the general jurisdiction provisions of 28 U.S.C.A. § 41(1) are operative to preclude the possibility of the subsequent bestowal by the congress upon the district courts of jurisdiction in specific civil cases, irrespective of the amount or value of the controversies involved therein. Nor could such a position well be maintained.

Broad grants to the district courts of jurisdiction of actions for the vindication of rights created by other congressional acts have been sustained as adequate, even though a controversy involving the jurisdictional amount prescribed in 28 U.S.C.A. § 41(1), and diversity of citizenship or one of them be wanting. Among them may be mentioned, suggestively but not exclusively, the Fair Labor Standards Act, § 16, 29 U.S.C.A. § 216, Donahue v. Susquehanna Collieries Co., 3 Cir., 138 F.2d 3, 149 A.L.R. 271; Timony v. Todd Shipyards Corp., D.C.N.Y., 59 F.Supp. 779; Britt v. Cole Drug Co., D.C.Mass., 39 F. Supp. 90; the Emergency Price Control Act of 1942, § 205, 50 U.S.C.A.Appendix, § 925; Bowles v. Franceschini, 1 Cir., 145 F.2d 510; Powell v. Rhine, D.C.Pa., 71 F.Supp. 953; City of Newark v. Horns, D.C., 62 F.Supp. 310; and the Copyright Act, §§ 25, 34, 17 U.S.C.A. §§ 25 and 34; Photo Drama Motion Picture Co. v. Social Uplift Film Corp., D.C.N.Y., 213 F. 374; Id., 2 Cir., 220 F. 448.

But the defendant, on this occasion argues that, because, by the peculiar language of the Federal Tort Claims Act, the jurisdiction granted is conditioned on the existence of circumstances in which a private person would be liable to the claimant and because the grant is limited only to the United States District Court, the statutory language must be understood in like manner as if its requirement supposed the liability of a private person enforceable in the United States District Court. Upon which premise, it then contends that, since, under 28 U.S.C.A. § 41(1), the presence of a controversy in a sum or value exceeding three thousand dollars is a test of jurisdiction, the power of the court to entertain this action must be denied. The court is satisfied that the argument is invalid.

The United States cites no judicial authority which may be construed as sustaining its position. Reference is made to an observation, en passant, of the writer of the opinion in Englehardt v. United States et al., D.C.Md., 69 F.Supp. 451, 455. In that case, brought under the Federal Tort Claims Act, the court was considering the right of a plaintiff, a citizen of Maryland, to join with the United States, its allegedly offending employee, a citizen of Delaware. The joinder was sustained; but, by way of the most obvious dictum, the court, in its reasoning used this language:

"There is still another consideration affecting the principal question here involved. The plaintiff and the individual defendant are citizens of different States. If, as is more likely to occur in this class of cases, the plaintiff and the individual defendant had been citizens of the same State, another and perhaps more difficult question of jurisdiction would have existed. As it is, there is no doubt that the plaintiff can sue the individual defendant singly in one suit and the United States in another suit."

It will be readily apparent that the judicial reflection in the quoted language was upon the court's jurisdiction over an action between private parties based — as, in that relation it could only be based — upon common law negligence. The language is completely pointless in a suit brought by an injured person against the United States alone. And, touching the question proposed by the writer of the cited opinion, see Dickens v. Jackson, D.C. N.Y., 71 F.Supp. 753, which is equally insignificant upon the present issue.

There can be no reasonable doubt, as ...