Boccardo v. United States, C-71-510.

• Decision Date: 26 April 1972
• Docket Number: No. C-71-510.,C-71-510.
• Citation: 341 F. Supp. 858
• Court: U.S. District Court — Northern District of California
• Parties: James F. BOCCARDO and Lorraine V. Boccardo, husband and wife, doing business as Community Center, Plaintiffs, v. UNITED STATES of America, Defendant.

341 F. Supp. 858

James F. BOCCARDO and Lorraine V. Boccardo, husband and wife, doing business as Community Center, Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-71-510.

United States District Court, N. D. California.

April 26, 1972.

Carman, Mansfield & Mason, by E. Day Carman, San Jose, Cal., for plaintiffs.

James L. Browning, Jr., U. S. Atty., David E. Golay, Asst. U. S. Atty., San Francisco, Cal., for defendant.

MEMORANDUM OF DECISION

GEORGE B. HARRIS, Senior Judge.

This case arises from a Complaint for Breach of Contract and for Declaratory Relief filed herein on March 16, 1971. The Complaint alleged jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a) (2) and, in addition, sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. A subsequent amendment to the Complaint was filed on June 25, 1971.

On November 18, 1971, a Pre-Trial Order for the case was filed. The matter was tried to the court on February 28, February 29, and March 1, 1972, and was thereafter taken under submission for decision on April 11, 1972, following briefing by the parties.

I. FACTS

Presently and at all times noted in the Complaint plaintiffs are the owners of the Community Bank Building "Building", 111 West St. John Street, San Jose, California. On or about August 24, 1966, plaintiffs and defendant entered into a contract for the lease "Lease" of office space and premises within said building. The Lease covered two distinct areas within the building: Unit 1, originally leased from November 1, 1966 through July 31, 1967, and Unit 2, originally leased from October 15, 1966 through October 14, 1971. The space in issue here, Unit 2, is and has been occupied by the United States Selective Service System as a draft board.

Unit 2, like Unit 1, was subject to an option for renewal, which option was exercised by the Government and extended the term of the Lease, unless otherwise terminated, until approximately August 14, 1972.

Sometime after 1966, perhaps at the end of 1968 or the beginning of 1969, activity by war and/or draft protesters resulted in a series of disturbances in and around the Building and especially concentrated near the space occupied by the draft board. Such disturbances included physical damage to the interior of the Building, particularly in the elevators, hallways, and lavatories, picketing and milling, the communication of bomb threats to various tenants of the Building (including the draft board), and gunfire directed at the Building from an unknown source some distance away.

Most of the physical damage was attributable to reactions against the activities of the draft board, since the damage was primarily on the second floor of the Building, where the draft board is located, or below.

In January 1970, plaintiffs complained about such disruptive activities in a letter to the General Services Administration of the Government and threatened to terminate Selective Service occupancy unless other quarters were found. Plaintiffs offered other space to the General Services Administration, but such space was rejected as unsuitable. Selective Service declined to move, but did open its office earlier, thereby avoiding the milling and dissatisfaction of those visitors who had previously to wait for its later opening time.

On December 24, 1970, a person known as Brother John entered Unit 2 and set fire to the leased premises. The fire was extinguished without injury to persons. More than $15,000 was expended to repair the fire damage, all of which was covered by insurance.

As a result of the activities directed against the draft board or caused by persons having business therewith, plaintiffs hired guard security personnel, at a total expense of $2635.75, installed a closed circuit television monitoring system at an approximate expense of $800.00, and used in-house labor to effect repairs at a total estimated expense of $3744.00, which latter figure is based on four hours of such labor per week for three years at $6.00 per hour.

On December 26, 1970, plaintiffs attempted to terminate the Lease for Unit 2 by letter. The Government, by Mr. Kirby of the General Services Administration, declined an offer of alternative space as unsuitable. The Government refused to vacate and requested repairs to the premises.

Thereafter, plaintiffs filed the instant suit.

II. LAW

A. Jurisdiction — Remedy

This action is brought under the Tucker Act, 28 U.S.C. § 1346, which provides in pertinent part:

(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of * * * * * *

(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded ... upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

Plaintiffs seek damages, a declaration of rights under the Lease, and the eviction of the Government from Unit 2. The Government counters that plaintiffs are not entitled to any damages and that equitable or declaratory relief is unavailable to them under the Tucker Act or under the Declaratory Judgment Act.

For purposes of the alleged claim to money damages, this court has jurisdiction of the matter under the Tucker Act.

What is not clear is the plaintiffs' right to requests for equitable relief by way of a declaration of rights under the Lease, a declaration of termination of the Lease, and the vacating of the premises by the Government.

Following the decision of the Supreme Court in United States v. Jones, 131 U. S. 1, 18-19, 9 S.Ct. 669, 33 L.Ed. 90 (1889), it has long been held that suits for equitable relief only cannot be maintained against the United States under the Tucker Act. See, e. g., Casarino v. United States, 431 F.2d 775, 777 (2d Cir. 1970); Wells v. United States, 280 F.2d 275, 277 (9th Cir. 1960). The courts have, however, countenanced the award of equitable relief where incidental to a claim for money damages. R.E. D.M. Corporation v. Lo Secco, 291 F. Supp. 53, 58 (S.D.N.Y.1968) affirmed, 412 F.2d 303 (2d Cir. 1969); Blanc v. United States, 244 F.2d 708, 709-710 (2d Cir. 1957) affirming 140 F.Supp. 481 (E.D.N.Y.1956), cert. den., 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957); Clay v. United States, 210 F.2d 686 (D. C.Cir. 1953), cert. den., 347 U.S. 927, 74 S.Ct. 530, 98 L.Ed. 1080 (1954); Werner v. United States, 10 F.R.D. 245, 246-247 (S.D.Cal.1950) affirmed, 188 F.2d 266, 268 (9th Cir. 1951); Universal Transistor Products Corp. v. United States, 214 F.Supp. 486, 487 n. 1 (E.D. N.Y.1963); DiBattista v. Swing, 135 F. Supp. 938, 940 (D.Md.1955).

There is also a question concerning the power of a court to grant declaratory relief against the United States as supplementary to a Tucker Act claim. In Raydist Navigation Corp. v. United States, 144 F.Supp. 503, 505 (E.D.Va. 1956), the court noted that while the Declaratory Judgment Act is not a consent of the United States to be sued, where the United States has given consent to be sued under the Tucker Act, a proceeding by way of declaratory relief is proper. More recent cases, however, cast some doubt on the above statement. E. g., Blaze v. Moon, 315 F.Supp. 495, 497 (S.D.Tex.1970), affirmed, 440 F.2d 1348 (5th Cir. 1971). In King v. United States, 395 U.S. 1, 89 S.Ct. 1501, 23 L. Ed.2d 52 (1969), the Supreme Court reversed a decision of the Court of Claims, 390 F.2d 894, 182 Ct.Cl. 631 (1968), and held that it was not within the power of that court to grant declaratory relief. See Superior Beverage Company v. State of Ohio, 324 F.Supp. 564, 566 (N.D.Ohio 1971). Since the Tucker Act provides that where a district court has jurisdiction thereunder it is sitting essentially as a court of claims, see United States v. Sherwood, 312 U.S. 584, 590-591, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), it is arguable that the decision in King indicates that declaratory relief is also unavailable in Tucker Act cases brought in a district court rather than the Court of Claims.

Nonetheless, whether because of the inclusion of a claim under the Declaratory Judgment Act or because being incidental to a claim for money damages, this court will assume, without deciding, that plaintiffs are entitled to seek herein those forms of non-money relief prayed for.

B. Applicable Law

The parties have raised an issue as to whether state or federal law governs the interpretation of the Lease under the Tucker Act.

Following the general rule that construction or application of provisions in a government contract are to be under federal, not state, law, Woodbury v. United States, 313 F.2d 291, 295 (9th Cir. 1963); Stewart Sand and Material Co. v. Southeast State Bank, 318 F. Supp. 870, 876 (W.D.Mo.1970); Byron Jackson Co. v. United States, 35 F.Supp. 665, 667-668 (S.D.Cal.1940), it has been held repeatedly that a lease executed by the United States must likewise be tested against federal law. E. g., United States v. Morgan, 196 F.Supp. 345, 349 (D.Md.1961), affirmed, 298 F.2d 255 (4th Cir. 1962); American Houses v. Schneider, 211 F.2d 881, 882-883 (3d Cir. 1954); Girard Trust Co. v. United States, 149 F.2d 872, 874 (3d Cir. 1945); Patton v. United States, 139 F. Supp. 279, 283 (W.D.Pa.1955); Riverview Properties v. United States, 102 F. Supp. 934, 937 (M.D.Pa.1952). But see Werner v. United States, supra at 247.

In the absence of federal cases in point, the court may turn for guidance to the general law of landlord and tenant. United States v. Morgan, supra at 349; Girard Trust Co. v. United States, supra at 874. It would also seem permissible for the court to refer to state law in the absence of federal authority or where not in conflict therewith and where it "furnishes convenient solutions in no way inconsistent with adequate protection of the federal interests." United States v. National Capital Storage and Moving Co., 265 F.Supp. 50, 54 (D.Md.1967).

C. Mutuality under the Lease

Plaintiffs contend at...