United States v. Dry Dock Savings Institution

• Decision Date: 12 June 1945
• Docket Number: No. 355.,355.
• Citation: 149 F.2d 917
• Parties: UNITED STATES v. DRY DOCK SAVINGS INSTITUTION.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 917 (1945)

UNITED STATES v. DRY DOCK SAVINGS INSTITUTION.

No. 355.

Circuit Court of Appeals, Second Circuit.

June 12, 1945.

Davis, Polk, Wardell, Sunderland & Kiendl, of New York City (Ralph M. Carson and David M. Potts, both of New York City, of counsel), for appellant.

John F. X. McGohey, U. S. Atty., of New York City (Samuel Rudykoff, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before SWAN, CHASE, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is an action by the United States to recover from the defendant the amount of a savings account, $615.16 plus interest, standing to the credit of a deceased veteran, Markar Badoyian, who died on April 14, 1943 in a Veterans' Administration facility in New York City, intestate and without heirs or next of kin. As a first cause of action the complaint relies upon an agreement contained in the veteran's application for admission to the facility to the effect that in the event of his death, while under care, without heirs or next of kin all his personal property "shall vest in and become the property of the Veterans Administration for the sole use and benefit of the post fund * * *." As a second cause of action the complaint relies upon the Act of June 25, 1910 as amended, 38 U.S.C.A. §§ 17 to 17j, inclusive, relating to the disposition of assets of veterans who die in a veterans' hospital. The defendant's answer, in addition to other matters, pleaded a counterclaim, alleging that the Public Administrator of New York County, as administrator of the deceased veteran, had demanded of the defendant payment of the savings account and praying that the administrator be made a party, the two claimants be required to interplead their claims, and the defendant be permitted to pay into court the amount of the account and be discharged from liability. The motion for interpleader was denied on the ground of the plaintiff's sovereign immunity.

It is elementary that the United States cannot be sued without express legislative authorization. Nassau Smelting Works v. United States, 266 U.S. 101, 106, 45 S.Ct. 25, 69 L.Ed. 190; United States v. Shaw, 309 U.S. 495, 500, 501, 60 S.Ct. 659, 84 L.Ed. 888. If the appellant had sought to bring an original bill of interpleader against the United States and the Public Administrator of New York, no authority for the suit could be found in the Interpleader Act, 28 U.S.C.A. § 41(26); for paragraph (a) (i) thereof requires that the adverse claimants be citizens of different states, although diversity need not exist between the plaintiff and all claimants. Treines v. Sunshine Mining Co., 308 U.S. 66, 70-73, 60 S.Ct. 44, 84 L.Ed. 85; Security Trust & Savings Bank v. Walsh, 9 Cir., 91 F.2d 481, 483. Obviously the United States is not a citizen of any state. See Texas v. Interstate Commerce Commission, 258 U.S. 158, 160, 42 S.Ct. 261, 66 L.Ed. 531. The appellant contends that paragraph (e) of the Interpleader Act, 28 U.S.C.A. § 41(26) (e), makes an ancillary bill of interpleader available in any action at law in a United States District Court. We think not. Paragraph (e) permits a defendant to set up by way of equitable defense any matter which would entitle such defendant to file an original or ancillary bill of interpleader in the same court "under the provisions of paragraph (a) of this subsection or any other provision of Part I of this title and the rules of court made pursuant thereto." That the United States could not be interpleaded by an original bill under subsection (26) has already been demonstrated. No other provision of Part I of the title has been called to our attention authorizing the impleading of the United States. That Rule 22 of the Federal Rules of Civil Procedure, 28 U.S. C.A. ...