Maryland Casualty Co. v. United States

• Decision Date: 03 June 1946
• Docket Number: No. 5467.,5467.
• Citation: 155 F.2d 823
• Parties: MARYLAND CASUALTY CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

155 F.2d 823 (1946)

MARYLAND CASUALTY CO. v. UNITED STATES.

No. 5467.

Circuit Court of Appeals, Fourth Circuit.

June 3, 1946.

Before GRONER, Chief Justice, United States Court of Appeals for District of Columbia, and SOPER and DOBIE, Circuit Judges.

Roszel C. Thomsen (John B. Seal and Clark, Thomsen & Smith, all of Baltimore, Md., on the brief), for appellant.

Ellis Lyons, Atty., Department of Justice, of Washington, D. C. (John F. Sonnett, Asst. Atty. Gen., Bernard J. Flynn, U. S. Atty., of Baltimore, Md., and J. Francis Hayden, Sp. Asst. to Atty. Gen., on the brief), for appellee.

GRONER, C. J.

This is an appeal in an action under the Tucker Act,¹ begun by Maryland Casualty Company against the United States in the District Court for the District of Maryland. The United States answered and both parties moved for judgment on the pleadings. The District Court, after hearing, entered judgment for the United States.

A brief statement of the facts follows:

Captain Samuel J. D. Marshall, U. S. A., was in 1917 quartermaster and disbursing officer at Camp Stewart, Virginia, and Mitchel Field, New York. During the period December 1, 1918, to October, 1919, he handled funds of the United States totalling approximately $23,000,000. In 1926, in the settlement of his accounts, a shortage was discovered in the sum of $49,612.18. Appellant, Maryland Casualty Company, as his surety had executed to the United States as obligee an official bond in the penal sum of $10,000, on the condition that Marshall would "carefully discharge the duties to which assigned, and faithfully expend all public money, and honestly account for the same and for all public property which shall or may come into his hands without fraud or delay, * * *." Claim was made against the surety in 1926, and in 1928 an action was begun by the United States in an appropriate District Court against both Marshall and appellant, seeking to recover the indebtedness claimed to be due. In October, 1938, appellant in compromise settlement of its liability paid the sum of $7,000 to the United States and the action was discontinued as to it. In the latter part of 1943 Private Law No. 165² was passed for the relief of Captain Marshall, following which the action was likewise dismissed as to him, and this in turn was followed by the present action begun by appellant, seeking to recover the $7,000 which, as we have seen, it had previously paid in compromise settlement of liability on the bond.

The Act of Congress to which we have referred as Private Law 165 is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the General Accounting Office be, and is hereby, authorized and directed to credit the account of Samuel J. D. Marshall, former captain, Quartermaster Corps, United States Army, disbursing officer of the Army at Camp Stewart, Virginia, and Mitchel Field, Long Island, New York, with $49,612.18, this sum being an alleged shortage in the accounts of the said Samuel J. D. Marshall and a balance due the United States while acting as disbursing officer at Camp Stewart, and Mitchel Field, New York, due to the lack of evidence to support certain disbursements."

It will thus be seen that the single question involved is whether the surety on a Government officer's official bond, having compromised and settled its liability, may, upon the passage of a Private Act forgiving the officer's indebtedness, maintain an action for the sum so paid against the United States under the provisions of the Tucker Act conferring jurisdiction on District Courts of claims "founded upon * * * any law of Congress."

Appellant insists that it may recover on the ground that the Government's original claim against Captain Marshall having been forgiven in full by the terms of the Private Act, the previous payment by appellant as surety creates a credit in Marshall's account in the amount of the overpayment and thus gives rise to a claim against the United States which may be asserted by appellant as subrogee of Marshall's rights.

The United States, to the contrary, contend that, since the Act did not direct repayment of the amount which the surety had paid, nor include any reference to the surety, nor appropriate any sum in repayment, either to Marshall or his surety, nor create any claim for which suit could be brought, it must be considered as designed solely to relieve Marshall of his liability and of any opprobrium by reason of the shortage in his accounts. As such, the United States assert, it is no more than the release to him of the claim of the United States, and in no respect creates a claim against the United States. This was the view adopted by the District Court and, we think, correctly, for it is axiomatic that no suit may be maintained against the United States in any court in any case not clearly within the terms of the statute by which the United States consent to be sued. United States v. Michel, 282 U.S. 656, 659, 51 S.Ct. 284, 75 L.Ed. 598. Or, as the rule is expressed a little differently in Schillinger v. United States, 155 U.S. 163, 166, 15 S.Ct. 85, 86, 39 L.Ed. 108, "The United States cannot be sued in their courts without their consent, and in granting such consent Congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination. Beyond the letter of such consent the courts may not go, * * *." And more recently in United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 769, 85 L.Ed. 1058, the Court reiterated the rule in these words: "The United States, as sovereign, is immune from suit save as it consents to be sued (citing cases) and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit."

The same general statement of the law has been made time and time again by the Supreme Court and by other courts in a variety of circumstances and conditions, to name all of which would merely lengthen this opinion. We, therefore, content ourselves with reference to only a few. In Price v. United States and Osage Indians,³ which was brought under an Act of Congress, giving the Court of Claims jurisdiction of claims for property of citizens taken or destroyed by Indians, it was held that consequential damage resulting to property growing out of the depredation of the Indians was not recoverable. And the reason, the Supreme Court said, is that "The right of the plaintiff to recover is a purely statutory right. The jurisdiction of the court of claims cannot be enlarged by implication. It matters not what may seem to this court equitable, or what obligation we may deem ought to be assumed by the government, or the Indian tribe whose members were guilty of this depredation, we cannot go beyond the language of the statute, and impose a liability which the government has not declared its willingness to assume. * * * The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."

And in United States v. Sherwood, supra, the Supreme Court said: "Except as Congress has consented there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States, or for the review of its decisions by appellate courts." And then...