Morrison v. United States, Civ. A. No. 822.
| Decision Date | 16 February 1970 |
| Docket Number | Civ. A. No. 822. |
| Citation | 316 F. Supp. 78 |
| Parties | Donald Wayne MORRISON, Plaintiff, v. The UNITED STATES of America, Melvin Laird, Secretary of Defense, and Stanley R. Resor, Secretary of the Army, Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Jack Helms, Homerville, for plaintiff.
Walker P. Johnson, Asst. U. S. Atty., Macon, Ga., for defendants.
This is an action by Donald Wayne Morrison against the United States of America, Melvin Laird as Secretary of Defense, and Stanley R. Resor as Secretary of the Army, to recover a sum of money which plaintiff alleges has been wrongfully converted.
The facts as disclosed by the complaint are that on or about July 31, 1968, plaintiff was on active duty with the United States Army in Vietnam. In "searching out" an unoccupied underground cave while on patrol plaintiff discovered a container in which he found $150,000.00 in United States currency. Immediately after its discovery the currency was taken into possession by plaintiff's superiors, and upon subsequent inquiry plaintiff was informed by his Company Commander "that he had no claim whatsoever to it." It further appears that after plaintiff's return to the United States demand was made upon the Secretary of Defense for the return of the currency and that such demand was refused.
The suit as originally filed claimed jurisdiction of this court under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) and, as amended under the Tucker Act, 28 U.S.C.A. § 1346(a) (2). The Government has moved to dismiss the suit for lack of jurisdiction and upon failure to state a claim upon which relief can be granted.
Insofar as the claim under the Tucker Act is concerned, this court is obviously without jurisdiction since by its very terms that Act limits the jurisdiction of District Courts to claims "not exceeding $10,000 in amount."
The only remaining question therefore is whether the complaint states a cause of action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b).
The Government contends that the Tort Claims Act is not applicable for a variety of reasons the first of which is the foreign country exception codified at 28 U.S.C.A. § 2680(k). Plaintiff on the other hand maintains that the claim did not arise in a foreign country since his demand for return of the currency was made in this country.
We do not agree. Whatever claim plaintiff had arose in a cave in Vietnam. The mere fact he made a demand was simply to enforce a claim which arose in a foreign country.
Next the Government contends that plaintiff's action is expressly precluded by 28 U.S.C.A. § 2680(j) which proscribes "any claim arising out of the combatant activity of the military or naval forces or the Coast Guard, during time of war." To this plaintiff asserts that in the absence of a formal declaration of war the combatant activity exclusion is inapplicable.
Of this we are not convinced. While it may be true that a de jure state of war cannot exist without a formal declaration of war, a war is no less a war because it is undeclared. To hold otherwise would circumvent the plain intent of the Act and open an area to suit in which Congress had no intention to forfeit governmental immunity. "In considering whether the Tort Claims Act is applicable * * * it is necessary to keep in mind the jurisprudential principles that no action lies against the United States unless the Congress has authorized it." Williams et al. v. United States, 115 F.Supp. 386, 387 (N.D. Fla. 1953).
We do not reach the question whether this action is barred by the statute of limitations under 28 U.S.C.A. § 2401(b)1 nor whether actions of this type are precluded by the Feres Doctrine. See Feres v. United States, 340 U. S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
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