Lee v. Blumenthal
| Decision Date | 19 March 1970 |
| Citation | 588 F.2d 1281 |
| Parties | 79-1 USTC P 13,274 Russel V. LEE, Trustee under Declaration of Trust dated |
| Court | U.S. Court of Appeals — Ninth Circuit |
James D. Palmer, Jr., Palo Alto, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before MERRILL and TANG, Circuit Judges, and TAYLOR, * District Judge.
The plaintiff filed an action under 28 U.S.C. § 1361, seeking a writ of mandamus to compel the Secretary of the Treasury to redeem certain bonds. The district court issued the writ. We reverse and remand to the district court with directions to dismiss or transfer to the Court of Claims.
The facts are undisputed. In 1970 the plaintiff and his wife created a revocable inter vivos trust, and transferred to the trust sufficient community property to purchase flower bonds with a face value of $200,000.00. Flower bonds derive from the Second Liberty Bond Act, 31 U.S.C. §§ 752, 754(b), and can be redeemed at par prior to maturity if used to pay the owner's estate tax. Plaintiff and his wife were co-trustees; the bonds, which were the trust's only asset, were registered to the plaintiff and his wife as co-trustees. The trust instrument provided that the income was to be paid to the plaintiff and his wife, as individuals, until one of them should die. The remaining trustee was then to pay the estate taxes with the bonds, and any remainder was to be used for the estate taxes of the surviving spouse, and the excess remainder, if any, was to go to a medical research foundation.
In 1972, the plaintiff's wife died. The plaintiff, acting as the surviving trustee, presented the entire $200,000.00 in bonds to the Treasury for redemption. The Treasury, after some delay, redeemed $100,000.00 and reissued a bond for the remaining $100,000.00, claiming that the deceased only owned half the bonds because the trust was community property.
The plaintiff filed this action against the United States and the Secretary of the Treasury to compel the redemption of the remaining $100,000.00 bond. The government moved to dismiss on the basis of sovereign immunity and other grounds. The district court held that the requirements of the regulations relating to bonds held in trust had been met, and the trustee was entitled to redemption. A writ of mandamus issued, but execution has been stayed pending this appeal.
The Second Circuit was recently presented with a very similar problem. Estate of Watson v. Blumenthal, No. 78-6084 (2nd Cir. Oct. 30, 1978). Watson Held that the district court lacked jurisdiction; that the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491 provided the exclusive remedy, and that the 1976 amendments to 28 U.S.C. § 1331 and 5 U.S.C. § 702 did not affect the Tucker Act. We are in agreement with the reasoning of Watson.
The Court of Claims has exclusive jurisdiction over contract actions against the United States where the amount in controversy exceeds $10,000.00, 28 U.S.C. §§ 1346(a)(2), 1491. The district courts have jurisdiction of actions that arise under the laws of the United States, 28 U.S.C. § 1331(a). While it might seem that the question is simply whether this action is best characterized as one of contract or as one involving the proper interpretation of a statute (and the regulations thereunder), we, like the Second Circuit, regard such an analysis as overly simplistic. The Court of Claims has authority to render judgment for money damages "founded upon . . . any regulation of an executive department"; and the flower bonds incorporate the regulations pertaining to them. See United States v. Dauphin Deposit Trust Co., 50 F.Supp. 73 (M.D.Pa.1943). The Court of Claims, therefore, would appear to be the proper forum, whether this action is characterized as one in contract or one to interpret regulations.
If this action is characterized as the plaintiff has pleaded it, that is, as an action to compel a federal officer to take certain actions, a further difficulty arises. An action seeking specific performance, rather than damages, against a government official is an action against the sovereign and is not maintainable unless consented to. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The plaintiff claims there is a waiver of sovereign immunity under 5 U.S.C. § 702. We do not believe this is a proper construction of § 702 in these circumstances.
Section 702, as amended in 1976, reads as follows:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review...
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