States Marine Lines, Inc. v. Shultz

• Decision Date: 30 May 1973
• Docket Number: Civ. A. No. 73-8.
• Citation: 359 F. Supp. 512
• Parties: STATES MARINE LINES, INC., Plaintiff, v. George P. SHULTZ, Secretary of the Treasury, et al., Defendants.
• Court: U.S. District Court — District of South Carolina

359 F. Supp. 512

STATES MARINE LINES, INC., Plaintiff, v. George P. SHULTZ, Secretary of the Treasury, et al., Defendants.

Civ. A. No. 73-8.

United States District Court, D. South Carolina, Charleston Division.

May 30, 1973.

Gordon D. Schreck, Charleston, S. C., for plaintiff.

John K. Grisso, U. S. Atty. by Ronald A. Hightower, Asst. U. S. Atty., Charleston, S. C., for defendants.

ORDER

SIMONS, District Judge.

This cause was heard by me in Chambers in Charleston, South Carolina, on April 17, 1973, upon the defendants' Motion to Dismiss the plaintiff's Complaint. Among other grounds stated, the defendants moved for dismissal upon the ground that the court lacked jurisdiction over the subject matter of the suit and that the Complaint failed to state a claim upon which relief could be granted.

The plaintiff alleged that this cause of action was based upon the Tariff Act of 1930 and related customs laws of the United States, and that it was brought pursuant to 28 U.S.C. Sections 1340 and 1361. The essence of the plaintiff's Complaint is that agents and employees of the named defendants, acting at the direction of the named defendants and with their authority, did search and seize goods and merchandise upon the vessel SS MANI on or about September 7, 1971, while the vessel was docked in navigable waters in Charleston, South Carolina. The plaintiff alleged that the search and seizure was wrongful and was accomplished without a warrant. The plaintiff further alleged that the goods and merchandise were impounded at the United States Customs House at Charleston, South Carolina, where the merchandise remained. The plaintiff alleged that thereafter the defendants failed and refused to take any action to release the merchandise to the plaintiff or to grant any other relief, and that, as a result of such conduct, the plaintiff suffered consequential damages. Plaintiff thus asserts that it has been deprived of its property without due process of law.

In addition to the claim for money damages, the plaintiff sought an Order of this court directing the defendants to return the seized goods. At the hearing on this matter, it was conceded that possession of the goods had been returned to the plaintiff, rendering that question moot.

In effect, the plaintiff states a cause of action sounding in tort for wrongful seizure and detention of the goods and damages resulting from such seizure and wrongful detention. It is contended by the defendants that the suit by the plaintiff is in essence a suit against the government. If this is a suit against the government, sovereign immunity would be preserved in the specific exceptions listed in 28 U.S.C. Section 2680. That statute, part of a chapter prescribing tort claims procedure, provides in pertinent part as follows:

"The provisions of this chapter and section 1346(b) of this title shall not apply to —

"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

* * * * * *

"(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer."

This statute effectively forecloses any reliance by plaintiff on the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b). Plaintiff's counsel conceded as much in oral argument, recognizing that there was no cause of action cognizable under the Tort Claims Act.

Plaintiff alleged that this action was properly before this court by virtue of 28 U.S.C. Sec. 1340, which provides:

"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court."

Plaintiff's reliance on this statute is misplaced. The courts have held that this provision is merely a general grant of jurisdiction to the district courts to entertain actions of a certain type. The section is not, however, a waiver of governmental immunity from suit or a consent to be sued. A mere statutory grant of general jurisdiction cannot be construed as authorizing a suit of this kind against the United States. Geurkink Farms, Inc. v. United States, 452 F.2d 643 (7th Cir. 1971). Rather, any reliance on the jurisdictional grant of Section 1340 "must be buttressed by some other statute specifically waiving the sovereign immunity of the United States in a particular type of action." Cooper Agency, Inc. v. McLeod, 235 F.Supp. 276 (E.D.S.C.1964), aff'd per curiam, 348 F.2d 919 (4th Cir. 1965). Plaintiff here has directed the court to no such buttressing statute.

Plaintiff further contends that jurisdiction is conferred on this court by 28 U.S.C. Sec. 1361, a 1962 enactment which provides: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." While invocation of this provision may have been appropriate before the government returned the seized merchandise to plaintiff, the action in its current stance is hardly appropriate for mandamus. For with the goods so long impounded now released, plaintiff's sole remaining assertion is for its damages resulting from the detention. By the instant Motion, the government contests the plaintiff's position that there is a cause of action justiciable in this court whereby the plaintiff could recover such damages. Mandamus is foreign to such a contest.

Plaintiff argues that the conduct of the named defendants in seizing and detaining the goods was outside the scope of their authority, so that the suit is against them individually. Although the action is nominally against the four named defendants, and although the United States is not denominated as a party defendant, all of the named defendants have authority either over or through the Bureau of Customs, an administrative agency of the Department of the Treasury of the United States. A suit is in legal effect against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," or "if the effect of the judgment would be to restrain the Government from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). The effect of the instant action, if successful, would be to "expend itself on the public treasury," for there is little doubt that if plaintiff recovered a verdict against the named defendants individually, such verdict would eventually be enforceable against the United States. Cf. 19 U.S.C. Sec. 508, 28 U.S.C. Sec. 2006. The court must thus conclude that the action is one against the sovereign. The courts cannot entertain an unconsented suit which, while nominally against officers of the United States, is in reality against the government itself. Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, supra; Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971); Gardner v. Harris, 391 F.2d 885 (5th Cir. 1968); Switzerland Company v. Udall, 337 F.2d 56 (4th Cir. 1964); Arthur v. Fry, 300 F.Supp. 622 (E.D. Tenn.1969).

The only exceptions to the general rule of sovereign immunity are "(1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void." Dugan v. Rank, supra, 372 U.S. at 621-622, 83 S.Ct. at 1007. Justice Clark in Dugan quoted with approval the following language from Larson v. Domestic & Foreign Commerce Corp., supra, which language is also appropriate to the instant suit:

"The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet the requirement that it must also appear that the action to be restrained or directed is not action of the sovereign. True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign.

"(T)he action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so `illegal' as to permit a suit for specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void." 372 U.S. at 622, 83 S.Ct. at 1007, quoting from 337 U.S. at 693, 701-702, 69 S.Ct. at 1463.

Neither of the two established exceptions applies here. First, the action of the Customs officers, agents and/or employees when they seized the goods aboard the SS MANI was clearly within the scope of their statutory powers. The enforcement provisions of the Tariff Act of 1930, 19 U.S.C. Sec. 1581 et seq., grant broad authority to Customs officers to go aboard vessels, to conduct reasonable searches, and to seize merchandise if it appears that a breach of the laws of the United States is being or has been committed. Cf. United States v. Kayser, 322 F.Supp. 52 (S.D.Ga. 1970). Thus the seizure accomplished and complained of here was not outside the scope of the Customs officers' statutory authorization.

Secondly, this court is of the opinion that the authority...