Butz Engineering Corp. v. United States

SkeltoN, Judge,

concurring and dissenting:

I concur with the result reached by the majority that plaintiff is not entitled to recover and its petition should be dismissed.

However, I feel that notwithstanding the commendable study and detailed treatment of the jurisdictional question in the majority opinion written by Judge Kunzig, I am compelled to dissent with regard to this question. In my opinion, we do not have jurisdiction of suits against the United States Postal Service (USPS). The Reorganization Act, 39 U.S.C. § 101 , et. seq., provided in unequivocal terms that United States District Courts shall have original jurisdiction of all actions brought against the Postal Service. In this regard, the Act provides as follows:

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It is clear that the words “but not exclusive jurisdiction” in the Act refers to suits filed in State courts where concurrent jurisdiction exists unless they are removed to United States District Courts. The Act nowhere vests jurisdiction in the United States Court of Claims. As a matter of fact, as pointed out by the majority, the legislative history of the Act shows that at one point, jurisdiction was conferred on the U.S. Court of Claims, but this provision was removed before final passage. This incident is significant, but -we need only to rely on the provision of the Act as finally passed, which is quoted above, showing that this court does not have jurisdiction of suits against the Postal Service.

Furthermore, a claim against , the Postal 'Service is not a claim against the United States. See White v. Bloomberg, 345 F. Supp. 133, 142 (D.Md. 1972). In that case the court said that the United States Postal Service:

[I]s an establishment existing independently of the executive branch of the United States with the power “to *581 sue and be sued in its official name.” * * * A suit against it, * * * for back pay is not a claim against the United 'States within the meaning of 28 U.S.C. § 1346 (a)(2). * * * ['Footnotes omitted]

No other case has been cited that bears directly on the question under discussion.

However, the case of Abbott v. United States, 125 Ct. Cl. 330 , 112 F. Supp. 801 (1953) involved facts that closely resemble those in the instant case. In that case the Panama Canal, which was a government operation, was incorporated by statute as the Panama Canal Company. Various employees sued the United States in this court to recover wages for services rendered both before and after the company was incorporated. The government challenged the court’s jurisdiction. The court held this court had no jurisdiction for claims for services rendered after the creation of the corporation. The court held:

* * * Any such 'Government corporation, in all its transactions, in a sense acts as the agent of the Government. But in the instant case, the purpose of the transfer of the Canal to the corporation was to put it under such management and accounting practices that it could ■be made to pay its own way. Congress seems to have wanted to cut it loose from the United States as far as possible. ’In employing these plaintiffs after July 31, 1951, the corporation was getting the corporate business done, and was not merely hiring employees as the agent of the United States.

We recognize, of course, that these corporations wholly owned by the Government are hybrid creatures, and that if the equivocal nature of such creatures resulted in fraud upon or other abuse of outside persons, a court would look through the corporate fiction and place liability upon the real principal. * * *

The instant case presents no necessity for piercing the corporate veil in order to do justice. The plaintiffs have, in our opinion, another forum in which to sue, and it is no great hardship for them to have to seek their relief there. [Id. at 335, 112 F. Supp. at 804 .]

See also Zimberg v. United States, 177 Ct. Cl. 1104 (1966); and Payne v. United States, 179 Ct. Cl. 923 (1967), where this court reaffirmed its decision in the Abbott , case. It should be pointed out that the Act creating the Panama Canal Com *582 pany provided that it could be sued in its corporate name. 62 Stat. 1078 . We find that in the instant case the statute authorizes suits against the Postal Service in its official name. 39 U.S.C. §401 (1). It appears that Congress intended that the Postal Service would be responsible for claims against it and that such claims would not be claims against the United States. It follows that if a claim is not against the United States, this court does not have jurisdiction of the claim.

The fact that the government furnished money for the operation of the Postal Service does not make it liable nor responsible for the debts and obligations of the Postal Service nor for claims against it. See D. R. Smalley & Sons, Inc. v. United States, 178 Ct. Cl. 593 , 372 F. 2d 505 , cert. denied, 389 U.S. 835 (1967).

This court does not have jurisdiction of plaintiff’s suit because plaintiff’s claim is against the Postal Service and not against the United States, and exclusive jurisdiction of such claims has been conferred by Congress on the district courts.

I would dismiss plaintiff’s petition on the ground of lack of jurisdiction in this court.

Nichols, Judge, joins in Judge Skelton’s dissent.