Pratt v. Kelly, 77-1274

• Decision Date: 20 October 1978
• Docket Number: No. 77-1274,77-1274
• Parties: Otis Elwood PRATT, Administrator of the Estate of Mary Alice Pratt, Appellant, v. Michael G. KELLY and John Doe, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 692

585 F.2d 692

Otis Elwood PRATT, Administrator of the Estate of Mary Alice Pratt, Appellant, v. Michael G. KELLY and John Doe, Appellees.

No. 77-1274.

United States Court of Appeals Fourth Circuit.

Argued Dec. 14, 1977.

Decided Oct. 20, 1978.

Donald B. Irons, Blacksburg, Va. (Neily, Irons & Mitchell, Roanoke, Va., on brief), William O. Smith, Blacksburg, Va. (Spiers, Spiers & Mink, Radford, Va., on brief), for appellant.

William R. Rakes and John S. Edwards, Roanoke, Va. (Gentry, Locke, Rakes & Moore, Roanoke, Va., on brief), for appellee Michael G. Kelly.

William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief, for appellee John Doe.

Before FIELD, Senior Circuit Judge, WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

This case is an appeal from an order of the United States District Court for the Western District of Virginia dismissing plaintiff's complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.

Mary Alice Pratt was a passenger in a vehicle driven by defendant, Michael G. Kelly, on the Blue Ridge Parkway in Floyd County, Virginia, which was there involved in a collision, so the complaint says, caused in whole or in part by the defendant John Doe, driver of another car, whose identity is unknown. Miss Pratt died the next day, allegedly as the result of injuries received in the accident. Plaintiff-appellant, her father and administrator, brought this action alleging that the accident, and consequent death, resulted from the negligence of either defendant Kelly or defendant Doe, or their combined negligence.

No diversity of citizenship is alleged. The plaintiff seems to contend that this is an action based upon a law of the United States and that, thus, the district court has jurisdiction under 28 U.S.C. § 1331(a) the general federal question jurisdiction statute. ¹ To support the contention, plaintiff asserts that by virtue of 16 U.S.C. § 460a-2 ² the Blue Ridge Parkway, where the accident occurred, being owned by the United States, is under the jurisdiction of the United States of America. That argument is supplemented by the contention that under 16 U.S.C. § 457 the Virginia wrongful death statute becomes a law of the United States.

Defendants contend that 16 U.S.C. § 457 does not make a State wrongful death statute a law of the United States because the death did not occur at a place which is under the exclusive jurisdiction of the United States. They contend that the Blue Ridge Parkway, where this accident occurred, does not so qualify.

In support of his contention that Virginia's wrongful death act became a federal law for the purpose of establishing jurisdiction under 28 U.S.C. § 1331, plaintiff relies upon Stokes v. Adair, 265 F.2d 662 (4th Cir. 1959), cert. den. 361 U.S. 816, 80 S.Ct. 56, 4 L.Ed.2d 62, Mater v. Holley, 200 F.2d 123 (5th Cir. 1952), Olsen v. McPartlin, 105 F.Supp. 561 (D.Minn.1952), and Reed v. Charizio, 183 F.Supp. 52 (E.D.Va.1960). Stokes, Mater, and Olsen were cases in which it is clear that exclusive jurisdiction over the place where the accident occurred had been ceded, in all respects relevant here, to the United States. Reed is not clear as explained below. ³ The reason, in the case of a complete cession of jurisdiction over civil actions, the preexisting State law becomes federal law is that such a result is necessary to prevent a legal void. Stewart & Co. v. Sadrakula,309 U.S. 94, 99-101, 60 S.Ct. 431, 84 L.Ed. 596 (1940). Actions for personal injury or death are transitory and may be brought in any court having jurisdiction over the parties and the subject matter of the case. Wherever the suit is brought, however, the law of the place where the event giving rise to the cause of action occurred will provide the substantive legal basis for a decision of the case. If the accident occurs upon a territory under the exclusive jurisdiction of the United States, in the absence of a federally enacted statute, there would be no law to apply unless the pre-existing State law continued as federal law. Thus, there is a general principle that transfer of political control over an area does not automatically change its law, but the law of the prior sovereignty remains as law of the successor until clearly abrogated. Chicago, Rock Island & Pacific Railway Company v. McGlinn, 114 U.S. 542, 546, 5 S.Ct. 1005, 29 L.Ed. 270 (1885). If, as defendants contend in this case, the State retains jurisdiction over civil actions so far as the ceded territory is concerned, the State law continues to provide the legal basis for adjudicating the rights of parties growing out of an accident occurring in that place, and there is no reason why the State law should be regarded as federal law. Board of Supervisors of Fairfax County, Virginia v. United States, 408 F.Supp. 556 (E.D.Va.1976).

It is now clear that ownership of land by the United States does not imply a transfer of either total or partial jurisdiction except so far as necessary for the United States to accomplish the purposes for which the land was transferred. In 1940, Congress amended 40 U.S.C. § 255 ⁴ so as to add the following eighth paragraph:

"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted."

Both before and after the enactment of the quoted eighth paragraph of 40 U.S.C. § 255 it has been held that a State may limit its cession of jurisdiction to the United States. Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963), James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596 (1940), James v. Darvo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937), Silas Mason Co. v. Tax Comm'n, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187 (1937), Fort Leavenworth RR v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885), Waltrip v. Commonwealth, 189 Va. 365, 53 S.E.2d 14 (1949). In Waltrip the court correctly states:

"Even before the Act of Congress, 40 U.S.C.A., sec. 255, the Supreme Court, in James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318, held that the mere ownership of land by the United States does not withdraw it from the jurisdiction of a State and that the respective jurisdictions of the United States and the State depend upon the extent of the State's consent. A State can refuse to grant jurisdiction, and in that event it will be retained by the State if it is consistent with the purposes for which the United States acquired the property. . . .

"See also James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596, 127 A.L.R. 821, where the court aptly states, 'It is now settled that the jurisdiction acquired from a State by the United States, whether by consent to the purchase or by cession, may be qualified in accordance with agreements reached by the respective governments. . . .' "

In order to establish lack of jurisdiction in the district court, defendants seek to prove that the State of Virginia did in fact reserve jurisdiction over "all civil . . . matters" in the Blue Ridge Parkway and that, thus, the United States does not have exclusive jurisdiction over that area and the Virginia wrongful death statute does not become a law "of the United States" so as to confer jurisdiction under 28 U.S.C. § 1331. In seeking to show a reservation of jurisdiction, defendants ask us to take judicial notice of the deed by which the State of Virginia conveyed title to the United States and the Acts of the Assembly authorizing the issuance of such a conveyance, which we do without objection.

The deed by which this section of the Blue Ridge Parkway was conveyed by the State of Virginia to the United States ⁵ contains the following provision:

"Now, therefore, this deed is executed and acknowledged by the duly authorized officers of the Commonwealth of Virginia, and the conveyance hereinafter made is upon the express condition that the respective governmental, legislative, executive and judicial powers and jurisdictions of the Commonwealth of Virginia and the United States of America in and over the said land hereby conveyed shall be such as is defined and provided for by Section 4, Chapter 3, Acts of Assembly of Virginia of 1936, and in Section 19a of the Code as amended by Chapter 382, Acts of Assembly of 1936."

Chapters 3 and 382 of the Acts of 1936, General Assembly of Virginia, contain almost identical provisions. ⁶ Section 4 of Chapter 3 provides:

"The Commonwealth of Virginia hereby further reserves unto herself exclusive governmental, judicial, executive and legislative powers, and jurisdiction in all civil and criminal matters, except in so far as same may be in conflict with the jurisdiction and powers herein ceded to the...