McMichael v. United States, 661.

• Decision Date: 15 November 1945
• Docket Number: No. 661.,661.
• Parties: McMICHAEL v. UNITED STATES et al.
• Court: U.S. District Court — Northern District of Alabama

63 F. Supp. 598

McMICHAEL v. UNITED STATES et al.

No. 661.

District Court, N. D. Alabama, N. D.

November 15, 1945.

George E. Barnett (of Bradshaw & Barnett), all of Florence, Ala., for plaintiff.

Jim C. Smith, U. S. Atty., and W. R. Bradford, Asst. U. S. Atty., both of Birmingham, Ala., for the United States.

Wm. C. Fitts, Jr., Gen. Counsel, and Charles J. McCarthy, Asst. Gen. Counsel, both of Knoxville, Tenn., and Patrick B. Harris, Atty., of Tuscumbia, Ala., for Tennessee Valley Authority.

MULLINS, District Judge.

The plaintiff sued the United States and the Tennessee Valley Authority, claiming that they had taken or flooded his property in connection with the erection and maintenance of Pickwick Dam on the Tennessee River. He averred that he was damaged in the sum of $14,000 and sued for that amount. He further averred that the defendants had impliedly promised to pay him for the property alleged to have been taken; that the Tennessee Valley Authority acted under the authority of the Tennessee Valley Act, 16 U.S.C.A. § 831 et seq., in constructing said dam; that neither the Tennessee Valley Authority nor the United States has paid him just compensation for the property taken. It is averred that the suit against the United States is authorized under the Tucker Act, 28 U.S. C.A. § 41(20). The complaint shows that the dam referred to was completed in the spring of the year 1938. This suit was filed in this court on September 9, 1942.

The United States moved to dismiss the action for want of jurisdiction and the Tennessee Valley Authority moved for a dismissal for failure to state a claim and also moved for a summary judgment.

On November 15, 1944, more than two years after filing the original complaint, the plaintiff amended section 15 of his complaint to reduce the amount sued for to $9,500. Subsequent to the filing of the amendment, the United States amended and renewed its motion to dismiss for lack of jurisdiction and moved to strike the cause from the docket, and, in the alternative, to strike the amendment in which the amount sued for was reduced.

On April 18, 1945, the motion of the Tennessee Valley Authority to dismiss for failure to state a claim was granted and the action was dismissed as to said defendant on the authority of Lynn v. United States et al., 5 Cir., 110 F.2d 586, and Yearsley et al. v. W. A. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554. This suit being under the Tucker Act, the dismissal as to the Tennessee Valley Authority was also required by United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 770, 85 L.Ed. 1058, wherein it is said, "if the relief sought is against others than the United States, the suit as to them must be ignored as beyond the jurisdiction of the court." See also United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90.

The matter is now being considered on the motion of the United States to dismiss for lack of jurisdiction.

The Tucker Act constitutes a waiver of governmental immunity to suit and gives the District Court sitting as a legislative court concurrent jurisdiction with the Court of Claims "of all claims not exceeding $10,000" against the United States. United States v. Sherwood, supra. Where permission to sue the United States is granted, it is jurisdictional that the plaintiff comply with all conditions and restrictions that are imposed upon the right to maintain the action. Statutes waiving sovereign immunity from suit are strictly construed. Wyker v. Willingham, D.C., 55 F.Supp. 105; United States v. Sherwood, supra. Congress alone has the right to determine "not only whether the United States may be sued, but in what courts the suit may be brought," State of Minnesota v. United States, 305 U.S. 382, 388, 59 S. Ct. 292, 295, 83 L.Ed. 235, and "even when suits are authorized they must be brought only in designated courts." United States v. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 661, 84 L.Ed. 888.

In a suit under the Tucker Act, the District Court only has jurisdiction, provided the claim is based upon a moneyed demand, United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90, not in excess of $10,000, 28 U.S.C.A. § 41(20); Otis Elevator Co. v. United States, D.C., 18 F.Supp. 87; Franklin v. United States, D.C., 16 F. Supp. 253, affirmed 308 U.S. 516, 60 S.Ct. 170, 84 L.Ed. 439, and the suit "shall have been brought within six years after the right accrued." 28 U.S.C.A. § 41(20); Stubbs v. United States, D.C., 21 F.Supp. 1007; Finn v. United States, 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128.

The original complaint in this case was based upon a claim in the amount of $14,000, which was also the amount sued for, and for that reason failed to state a case within the jurisdiction of this court, but, on the other hand, stated one within the jurisdiction of the Court of Claims. Such a complaint is a nullity and is insufficient to invoke jurisdiction. The District Court cannot entertain such a suit but is required to dismiss it. Hammond-Knowlton v. United States, 2 Cir., 121 F.2d 192, certiorari denied 314 U.S. 694, 62 S.Ct. 410, 86 L.Ed. 555; Otis Elevator Co. v. United States, supra; Franklin v. United States, supra.

In the Otis Elevator case 18 F.Supp. 89 the court said: "The District Court has no jurisdiction under the Tucker Act to hear a case against the United States on account stated where the amount involved exceeds $10,000." This case has twice been cited with approval by the Supreme Court. See United States v. Sherwood, supra; Franklin v. United States, 308 U.S. 516, 60 S.Ct. 170, 84 L.Ed. 439.

The plaintiff insists that by amending his complaint to claim only $9,500 that jurisdiction is properly invoked. But this argument overlooks the fact that the original complaint failed to state a case within the jurisdiction of this court and was but a nullity. "An amendment presupposes jurisdiction of the case." Hodge et al. v. Williams, 22 How. 87, 88, 63 U.S. 87, 16 L.Ed. 237. "Where the original pleading fails to disclose a cause of action * * *, it is ordinarily regarded as not amendable." 49 C.J. p. 503.

The plaintiff, however, relies on Maty v. Grasselli Chemical Co., 303 U. S. 197, 58 S.Ct. 507, 82 L.Ed. 745, and like decisions, which lay down a liberal rule as to amendments. These decisions are in cases where the pleadings were defective or imperfect, and not in cases where no cause of action was stated or the jurisdiction of the court had not been invoked. The plaintiff also relies upon Rule 15(c) of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides for amendments where the matter asserted arose out of the transaction set forth in the original pleading and further provides that the amendment relate back to the date of the original pleading. The Federal Rules of Civil Procedure do not enlarge the jurisdiction of the federal courts. United States v. Sherwood, supra. Further, it has been held that the Federal Rules of Civil Procedure do not apply to actions under the Tucker Act: "Appellant contends that Rule of Civil Procedure 20, 28 U.S.C.A. following section 723c, authorizes the joinder of a claim against Tennessee Valley Authority with one against the United States under the Tucker Act. We think otherwise. The authority to make rules of procedure and to supersede inconsistent statutes given the Supreme...