Van Buskirk v. United States

• Decision Date: 25 May 1962
• Docket Number: Civ. No. 4299.
• Parties: John Raymond VAN BUSKIRK, William E. Badgett, Mrs. Helen F. Hubert v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Tennessee

206 F. Supp. 553

John Raymond VAN BUSKIRK, William E. Badgett, Mrs. Helen F. Hubert v. UNITED STATES of America.

Civ. No. 4299.

United States District Court E. D. Tennessee, N. D.

May 25, 1962.

William E. Badgett, Knoxville, Tenn., for plaintiff.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for defendant.

ROBERT L. TAYLOR, Chief Judge.

On September 18, 1961, John Raymond Van Buskirk, a citizen and resident of Indiana, William E. Badgett, a citizen and resident of Tennessee and Mrs. Helen F. Hubert, a citizen and resident of Indiana brought suit against the United States for a judgment or decree of the Court ordering defendant to turn over to plaintiffs Badgett and Hubert $6,999.63, six pieces of luggage, a diamond ring and a watch or in the alternative for damages for the value thereof. It was alleged that suit was brought under the Constitution, particularly Amendment 5. The items in question were taken from the possession of Van Buskirk by agents of the F.B.I. at the time of his arrest on January 27, 1961 for violation of Title 18 U.S.C. § 2314 and were turned over to Lindsay Deal, a United States Deputy Marshal. This arrest took place in Arkansas.

On April 4, 1961, Van Buskirk made a purported assignment of said property to Mr. Badgett, an attorney who represented him in criminal proceedings in the United States District Court in Knoxville, Tennessee and to Mrs. Hubert, who became surety on Van Buskirk's bond in connection with proceedings in the United States District Court in Little Rock, Arkansas and in Cleveland, Ohio.

Following the assignment but before suit was instituted, Mr. Badgett wrote the Department of Justice demanding the property and on August 24, 1961 received a letter from D. B. MacGuineas, Chief, General Litigation Section, declining to turn over the property at that time on the ground that its ownership had not been determined, and on the ground that the property may already have been assigned to an attorney in Little Rock and that it may indeed have not belonged to Van Buskirk at all because of fraud on his part in obtaining it.

On December 19, 1961, the defendant filed its motion to dismiss on the grounds: (1) that the complaint in violation of Rule 8(a) (1), 28 U.S.C. contained no jurisdictional statement, (2) that defendant had not waived its sovereign immunity to a suit of this nature, (3) that the Court lacked jurisdiction over the subject matter, (4) that the complaint failed to state a claim upon which relief could be granted, (5) that the purported assignment was void under the provisions of 31 U.S.C.A. § 203, (6) that venue was improper under 28 U.S. C. § 1402(a) (1) since two of the plaintiffs were non-residents of the Eastern District of Tennessee, and (7) that mandatory relief is not available against the United States.

Subsequently to the filing of the motion to dismiss, plaintiff amended their complaint by adding the following paragraph:

"This suit is also brought under the provisions of 28 USC 1356; 28 USC 1346(b); 28 USC 2674; and 28 USC 1346(a) (2)."

A motion to dismiss is determined upon the basis of allegations in the complaint and exhibits attached thereto. Mengel Co. v. Nashville Paper Prod. & Spec. Workers Union, 221 F.2d 644, 647 (C.A.6). The complaint states that agents of the F.B.I. took the property in question from plaintiff Van Buskirk at the time of his arrest. We accept this allegation at face value and assume that the arrest was lawful. And in view of the fact that his arrest was for a scheme to defraud, we assume also that the seizure of the property was a properly precautionary one in connection with the arrest although one of the conclusions in the complaint is that the taking constituted a conversion of the property. The property was later transferred to the Deputy United States Marshal who now holds it. The letter of D. B. MacGuineas of August 24, 1961 which was attached as an exhibit to the complaint asserts dominion over the property for the limited purpose of determining to whom it belongs. There was no inference in the letter that the United States laid claim to any of it.

What we have in this case then is (1) a prayer that the property be turned over and (2) a claim against the United States for damages for property held by an employee of the United States to which neither he nor the Government lays claim.

Justice Brandeis pointed out in the case of Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 that the United States may not be sued without its consent, and that consent to sue the United States is a privilege accorded by it. The Government is under no obligation to accord a judicial remedy in respect to claims against itself, Thompson v. Whittier, 185 F.Supp. 306, 312 (D.C.D.C.) and can be sued only by its consent clearly given by legislative act. Bryan v. United States, 99 F.2d 549, 552 (C.A.10) Justice Brandeis further stated in the Lynch case that the character of the cause of action may be important in determining (as under the Tucker Act) whether consent to sue was given.

In their amendment to the complaint, plaintiffs list four statutes as supplying the basis for suit. We shall examine each of them. The first is 28 U.S. C. § 1356, which states:

"The district courts shall have original jurisdiction, exclusive of the courts of the States, of any seizure under any law of the United States on land or upon waters not within admiralty and maritime jurisdiction."

It is clear under the authority of such cases as Turton v. United States, 212 F.2d 354, 355 (C.A.6), Danning v. United States, 259 F.2d 305, 309 (C.A.9), and United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058, that this statute is merely a general provision vesting in the district courts jurisdiction over certain types of actions. It does not contain a consent by the United States, express or implied, permitting the institution of this type of action against it. This statute contains no basis for any kind of suit against the United States.

Coming now to Section 1346(b), it reads in part as follows:

"(b) Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

It will be noted that it is made subject to the provisions of Chapter 171 which we shall come to in a moment.

The third section upon which plaintiffs rely is Section 2674 which is also a part of Chapter 171 — "Tort Claims Procedure". The pertinent paragraph of Section 2674 is as follows:

"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

These two sections, 1346(b) and 2674, are made subject to Section 2680 of Title 28, the pertinent portions of which are 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 to 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."

Each of these sections relates to claims made against the United States. Section 1346(b) expressly relates to "money damages". Although Section 2674 is not so explicit, it does relate to tort claims which are commonly for damages. Neither of these sections then authorizes a mandatory action against the United States for a judgment or decree directing the turning over of property.

Whether either authorizes actions for money damages against the United States for acts or omissions of its agents or officers we now consider. We cannot see the application of Section 1346(b) to the situation at hand. There is no allegation that the property is either injured or lost. It is simply being held under circumstances which we consider...