Roman v. Velarde
Decision Date | 26 May 1970 |
Docket Number | No. 7418.,7418. |
Citation | 428 F.2d 129 |
Parties | Carlos Matienzo ROMAN et al., Plaintiffs, Appellants, v. Mariano Acosta VELARDE et al., Defendants, Appellees. |
Court | U.S. Court of Appeals — First Circuit |
Virgilio Brunet, Hato Rey, P. R., with whom Edwin A. Cuevas, Hato Rey, P. R., was on brief, for appellants.
Raymond N. Zagone, Atty., Dept. of Justice, with whom Shiro Kashiwa, Asst. Atty. Gen., Blas C. Herrero, Jr., U. S. Atty., and Gerald D. Secundy, Atty., Dept. of Justice, were on brief, for appellees, United States and Hill.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This action, which might seem to be barred by the statute of limitations,1 poses a question of subject matter jurisdiction because the district court dismissed on that ground without reaching the limitations issue. Plaintiffs sue the government under the Federal Tort Claims Act for damages on account of its occupation, under an allegedly invalid deed, of certain land claimed to belong to them.2 From the court's holding that the government had not consented under the FTCA to suit, and consequent dismissal of the complaint, plaintiffs appeal. Concededly the district court has no Tucker Act jurisdiction, as the amount involved exceeds $10,000. 28 U.S.C. §§ 1346(a) (2), 1491.3
The complaint goes into further details in its explanation of how, allegedly, plaintiffs are the true owners of the land in question, and as to the circumstances under which the individual defendant allegedly fraudulently purchased the locus at a public tax sale in 1939, and sold the land to the government. It alleges that the government bought with knowledge of the defect in title, "wrongfully took possession" in 1948, and still "wrongfully withholds" the land. Plaintiffs characterize their action as being for trespass.
The government takes the position that it has not consented in the FTCA to suit on a claim for trespass to land where the issue of title is involved. The absolutes of this contention might be more acceptable if the government's reliance was not placed upon inapposite citations, either cases preceding the Act, Maricopa County, Arizona v. Valley National Bank, 1943, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834; Rambo v. United States, 5 Cir., 1944, 145 F.2d 670, cert. denied 324 U.S. 848, 65 S.Ct. 685, 89 L.Ed. 1408, or cases not seeking money damages, which is all that the Act permits, 28 U.S.C. § 1346 (b); Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; Dugan v. Rank, 1963, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15; Malone v. Bowdoin, 1962, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168; Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. Consequently, our consideration must go further.
See also, Sioux Tribe of Indians of Lower Brule Reservation, S. D. v. United States, 1963, 315 F.2d 378, 379, 161 Ct.Cl. 413, cert. denied 375 U.S. 825, 84 S.Ct. 66, 11 L.Ed.2d 57.
We turn to the issue of jurisdiction under the FTCA. There is nothing in the language of section 1346(b) which excepts trespasses from other torts. Indeed, it has been said that Congress worded the Act so that it accepted liability for "wrongful" as well as "negligent" acts in order to include trespasses which might not be considered strictly negligent. See Dalehite v. United States, 1953, 346 U.S. 15, 45, 73 S.Ct. 956, 97 L.Ed. 1427. The basis of the district court's decision that the government had not consented to be sued cannot be supported.
Nevertheless, we cannot uphold jurisdiction over this cause of action. Congress may have intended that the FTCA embrace only claims not previously consented to under the Tucker Act. See Gottlieb, The Tort Claims Act Revisited, 49 Geo. L.J. 539, 574 (1961). But see New England Helicopter Service v. United States, D.R.I., 1955, 132 F.Supp. 938; Gellhorn & Schenck, Tort Actions Against the Federal Government, 47 Colum. L. Rev. 722, 731-33 (1947). Without deciding the validity of this general proposition, we hold that the FTCA does not provide a supplementary forum for plaintiffs demanding compensation for land permanently taken. At the time of the FTCA's passage such compensation could be sought under the Tucker Act. United States v. Causby, supra; cf. Jacobs v. United States, 1933, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142. Such a "condemnation action in reverse," United States v. Wald, 10 Cir., 1964, 330 F.2d 871, would be conducted under rules manifestly more appropriate than those available under a "continuing trespass" theory.5
The relief that the district court is empowered to give for trespass is limited, both in time, and in quality. Time, because the award is normally for a finite period, and quality, because the judgment is simply for monetary damages. In the Court of Claims complete and final compensation for land permanently taken can be awarded. The measure of damages is the full value of the locus at the time of entry. United States v. Herrero, 9 Cir., 1969, 416 F.2d 945, cert. denied 397 U.S. 973, 90 S.Ct. 1090, 25 L.Ed.2d 267. Moreover, the decree describes the property "with precision," United States v. Wald, supra, and recites the vesting in the United States of the estate found to have been taken. Wright v. United States, 1960, 279 F.2d 517, 521, 150 Ct.Cl. 386; Adaman Mutual Water Co. v. United States, 1958, 181 F.Supp. 658, 667, 143 Ct.Cl. 921. Alternatively, the decree...
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...and the acts of the United States complained of are in the nature of inverse condemnation. Id. at 583; see also Roman v. Velarde, 428 F.2d 129, 132 & n. 5 (1st Cir.1970) ("[T]he FTCA does not provide a supplementary forum for plaintiffs demanding compensation for land permanently taken."); ......
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Ware v. U.S., 79-1031
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Holmes Herefords, Inc. v. US
...the FTCA "does not provide a supplementary forum for plaintiffs demanding compensation for land permanently taken." Roman v. Velarde, 428 F.2d 129, 132 (1st Cir.1970). Further, this Court may not exercise pendent jurisdiction over takings claims properly brought under the Tucker Act, even t......
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Stanton v. United States, 30299 Summary Calendar.
...including the applicable statute of limitations, they would be entitled to have their claim of ownership adjudicated. See Roman v. Velarde, 1 Cir. 1970, 428 F.2d 129; United States v. Ivie, N.D.Ga.1957, 163 F.Supp. 138, ...
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...de Arellano v. Weinberger, 745 F.2d 1500, 1523 (D.C. Cir. 1984). See also Malone v. Bowdoin, 369 U.S. 643, 647 (1962); Roman v. Velarde, 428 F.2d 129 (1st Cir. (68.) 5 U.S.C. [subsection] 701-706 (2001). (69.) First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 4......